Disabling consent, or reconstructing sexual autonomy.

Author:Fischel, Joseph J.
Position:Abstract through I. Sexual Autonomy Trashed: Overinclusive, Underinclusive B. Underinclusive: Spindelman's 'Sexual Death-Blow', p. 428-461
 
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Abstract

Does a right to sexual autonomy criminalize the embellished pick-up line? Or does a right to sexual autonomy permit each and every consensual sex act, however life-threatening, or even life-ending? This Article defends (by reconstructing) sexual autonomy as the governing principle of modern rape law. Powerful criticisms of sexual autonomy otherwise normatively opposed share an antecedent assumption: that sexual autonomy can be read off and as first person present active (or passive) consent (Part I). This Article argues against the conflation of sexual autonomy with sexual consent. Instead, and in conversation with competing liberal and feminist political theoretic accounts of sexual autonomy, this Article defines sexual autonomy as the capability to codetermine sexual relations (Part II). By interfacing a revised concept of sexual autonomy against and alongside State v. Fourtin, a 2012 Connecticut Supreme Court decision overturning a conviction of sexual assault against a severely mentally and physically disabled woman (Part III), the Article proposes three possibilities for statutory reform: refurbishing consent; expanding restrictions on status relations; and applying an accommodation model of disability entitlements to sexual relations (Part IV). After synopsizing our interventions, the Conclusion reminds readers that our brief for sexual autonomy, relationally reconstructed, presumes and propounds the ordinariness, not the extraordinariness, of sex.

INTRODUCTION

In 2012, the Connecticut Supreme Court found Richard Fourtin not guilty of sexually assaulting a severely mentally and physically disabled woman, (1) contravening his 2008 trial conviction. (2) Referred to as "L.K." in court hearings, (3) the alleged victim is wheelchair bound and suffers hydrocephalus and cerebral palsy. (4) L.K. is nonverbal and communicates via a messaging board. (5) She is also the daughter of Fourtin's then- girlfriend. The trial jury's decision hinged on whether L.K. is "physically helpless" and thus unable to consent to sexual relations. (6) The Connecticut Appellate Court reversed the trial jury's conviction: because L.K. has a demonstrable history of registering displeasure or discomfort through "biting, kicking and scratching," she could not be deemed, by any reasonable trier of fact, physically helpless. Acting, perhaps, as a "thirteenth juror," (7) the Connecticut Supreme Court affirmed the appellate decision.

Needless to say, State v. Fourtin has infuriated feminists, anti-sexual violence activists, disability rights advocates, and many others. (8) By most accounts, Fourtin is an unmitigated disaster--it declares open sexual season on persons with disabilities. (9) Unless a person with disabilities is functionally and physiologically equivalent to someone who is unconscious, asleep, or blackout drunk, she is unprotected by the "physically helpless" subsections of the Connecticut sexual assault statutes. (10) Worse still: if a person with disabilities kicks, bites, and scratches her assailant, this conduct will be used as evidence against her alleged physical helplessness. Resistance, in this instance, is proof not of nonconsent, but of capacity to consent. (11)

This...

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