Vulnerability and agency

United States v. James, No. 13-10543 (9th Cir. Jan. 14, 2016).

The defendant had sex with a 28-year-old woman, T.C. whose cerebral palsy makes it impossible for her to speak; she can only communicate nonverbally. She can’t get around without a wheelchair, and even then she can only use her feet to move herself, because she lacks the use of her hands. T.C. lives on the Fort Apache Reservation in Arizona—which is why this case is in federal court. Federal law makes it a crime in Indian country to have sex with someone who’s “physical incapable of declining participation in, or communicating unwillingness to engage in” the act.

After a trial, the jury convicted the defendant of this crime. The district court, on the defendant’s motion, entered an acquittal, ruling that there wasn’t sufficient evidence that T.C. was physically incapable of declining participation or communicating her unwillingness to engage in sex. 

But the district court read the criminal statute narrowly—a reading that a majority of this Ninth Circuit panel now rejects. The statute, the majority says, proscribes sex when the victim can’t verbally articulate her lack of consent (can’t “communicat[e] unwillingness”) or can’t physically resist (can’t “declin[e] participation”). Under that standard, the government put up enough evidence to convict the defendant. There was evidence that even those who knew T.C. well—a group that didn’t include the defendant—had trouble understanding her. She couldn’t communicate her unwillingness. Also, as the defendant admitted to law enforcement, given T.C.’s physical limitations, he had to lift her off the wheelchair and take her clothes off himself. She couldn’t decline participation.

Judge Kozinski dissents. He finds the statute’s meaning clear: there must be enough evidence for a jury to find beyond a reasonable doubt that the victim couldn’t indicate, by word or deed, her lack of assent. And here, there was undisputed evidence that T.C. could say “yes” or “no” nonverbally, could nod her head in agreement or shake it in disagreement, and can express anger and dislike and her desire not to do something. T.C. was “just laying there,” James told investigators, but that doesn’t show she couldn’t say no. In the end, Judge Kozinski says, the majority’s opinion makes people with disabilities worse off, not better off: by making others more reticent, it will make “their already difficult task” of finding a sexual partner “even more daunting.”