Conviction of woman for raping disabled man overturned; judge will now allow evidence for consensual sex via the discredited method of “facilitated communication”

In 2015, Anna Stubblefield, a Rutgers professor, was convicted on two counts of aggravated sexual assault for having sex with a severely disabled cerebral palsy sufferer 10 years younger than she (she was 40, and also married). Her defense had been that it was consensual, for she had supposedly communicated with her subject, and gotten consent for sex, via “facilitated communication” (FC). In FC, the subject is guided by someone like Stubblefield to type out messages. There are various ways to “guide” (see the linked article), and for a while FC was touted as a way to unlock the unappreciated awareness of people with cerebral palsy, extreme autism, and others with no way to communicate.

But the thing is, FC is a scam. It’s like a Ouija board in which the facilitator manages to convey her own conscious or unconscious messages by “guiding” the subject in various ways. This has been shown over and over again by scientific tests when the facilitator is asked to deal with a question whose answer is known only to the subject (this happened with Stubblefield) or in blind tests when the facilitator and subject are given different objects to see, with the latter invariably typing out what’s seen only by the former. FC raised a lot of hopes for distraught parents, but science showed that FC simply didn’t work. It wasn’t allowed as evidence in the Stubblefield trial, and she was sentenced to 12 years in prison.

As Daniel Engber reports in a new piece at Slate, Stubblefield’s conviction has now been overturned. Her first defense—that the subject, “D. J.” had consented to sex and typed out other amorous messages while guided on a portable keyboard—wasn’t allowed by the judge, who correctly ruled it “junk science.” Nor was Stubblefield originally allowed to have the “inventor” of this scam, Rosemary Crossley, testify in her defense.

Now it appears that in the new trial with a new judge (the old one apparently made some prejudicial remarks in front of the jury), Stubblefield will be able to present FC as evidence of consent as well as Crossley’s testimony.

This is unconscionable.  The only way I could support the presentation of this method in court is if proper scientific testing shows that “D. J.” really could communicate his own thoughts and feelings to Stubblefield.  Anecdotes already suggest that he couldn’t–that the messages were Stubblefield’s doing–but there apparently will be no such testing.

What worries me is how this will play to a jury not familiar with scientific testing of such scams. In my experience as an expert defense witness in DNA cases, I know how science-averse or science-ignorant a regular jury is, and a good lawyer might get them to believe that FC really is showing us something. Were the prosecution to produce numerous witnesses showing that FC is bogus—and there is no shortage of such people—the jury would just be flummoxed, and thus likely to say there is “reasonable doubt.” Confusing the jury is precisely what a defense lawyer wants to do, and all that’s required is to present experts with conflicting opinions. Presto: “reasonable doubt”!

I, for one, have no reasonable doubt about the method: it’s a hoax. Whether Stubblefield did this knowingly to have sex, or whether somehow her unconscious brain helped produce “D. J.”‘s messages, absent scientific testing one simply cannot exculpate her based on that method. Given that she admitted to the sex, and that FC is bogus, this is a case of rape, plain and simple.

What kind of punishment Stubblefield deserves depends, I suppose, on how much of a danger she poses, or whether she needs reformation (and how much), as well as its deterrent effect on others who want to use FC to excuse criminal activity. But without any real evidence of “D. J.”‘s consent, this remains sexual assault.

Stubblefield taken away after conviction. Photo by Jonno Rattman for The New York Times

43 Comments

  1. Mack
    Posted June 16, 2017 at 1:48 pm | Permalink

    I would just like to know – if anyone has a handle on the legal aspects. Is the important thing whether FC is real, or whether the defendant believed it to be real? If FC was used to facilitate assault and the defendant knew it to be bogus, that does seem to be different than believing in FC and acting accordingly. This feels similar to faith-based exemption to child abuse for withholding medical care. Thoughts?

    • Randall Schenck
      Posted June 16, 2017 at 2:02 pm | Permalink

      That seems a little much on the legalize part to me but not a lawyer. If FC is bogus, which science says it is and this perpetrator is saying that based on the use of FC, a bogus thing, she was given permission, the answer is guilty. I believed the gun was empty but a bullet came out and killed the guy. Am I guilty, yeah.

      • Posted June 16, 2017 at 2:33 pm | Permalink

        “That seems a little much on the legalize part to me but not a lawyer.”

        I’m not sure what that sentence means, but as for your last sentence, it’s not necessarily true. It depends what the charge is. If the charge is first degree murder, then no, you are not guilty.

        • Randall Schenck
          Posted June 16, 2017 at 2:54 pm | Permalink

          I am not in the business of determining what the guy is on trial for – manslaughter, second degree or what. I only said guilty. It was a short example man, not a book. But it is the same idea as the FC thing. Whether you know it is bogus or not makes not difference – you are still guilty.

          • Posted June 16, 2017 at 3:52 pm | Permalink

            But the jury IS in business of determining whether a defendent is guilty of a specific charge, so it can well matter if you believed (and if the jury believes you) that the gun was loaded or not. So you could be not guilty of first degree murder and guilty of manslaughter or some sort of criminal negligence.

      • Carey Haug
        Posted June 16, 2017 at 3:04 pm | Permalink

        In my work as a Speech Pathologist (therapist), I attended some workshops about FC. I never accepted it as a means of communication. Many professionals I respect did use the method. They sincerely believed the disabled people were expressing themselves. FC was like a religion in that its adherents refused to provide proof that the miracle was real.

        In this case, the woman may well have believed the man was consenting to sex. It was still wrong because the disabled person and his service provider did not have equal power in the relationship and he was not truly in a position to consent. It is much like teacher/student or doctor/patient relationships except that the disabled are even more vulnerable.

        • Denise
          Posted June 16, 2017 at 6:49 pm | Permalink

          How long ago was it that you attended those workshops?

          When I saw the Frontline show on FC I thought it was thoroughly and completely debunked, but apparently not. That was at least 20 years ago I believe. I expected Syracuse University to shut down its institute after that, but apparently all it did was rename it.

          • loren russell
            Posted June 16, 2017 at 7:08 pm | Permalink

            Frontline certainly deflated some of the hype, but yes, they just changed the name and terminology. Supported typing, not FC, ‘Institute of Communication and Inclusion’ etc.

            I think that for both Stubblefield and FC’s inventor, Rosemary Crossley, FC could be a delusion, but not fraud. There’s certainly less reason to dismiss it out of hand than, say, repressed memory, or other crazes where sincere do-goodery leads to ideological crusade.

            Interesting that Pinker [or co-author] leave open question of validity of FC in this particular case. Presume one or both do accept that it would work for some disabled persons.

          • Carey Haug
            Posted June 16, 2017 at 8:03 pm | Permalink

            It was in the early 1990s, more than 20 years ago, so this feels like a blast from the past. It’s not an evidence based practice, but very occasionally I hear stories where the disabled person revealed something the facilitator could not possibly have known and all the people involved are people I trust.

            It’s possible, though unproven and unlikely, that this method could work for some people.

            • Posted June 17, 2017 at 6:38 am | Permalink

              I agree with you. I think that supporting the hand of the disabled person may help in some cases, but when his hand is supported by another person’s hand, the thoughts of the facilitator will create enormous noise that will drown any signal. I think that purely technological facilitation devices must be developed, that have no thoughts of their own.

    • BJ
      Posted June 16, 2017 at 2:52 pm | Permalink

      This is horrifying.

      • BJ
        Posted June 16, 2017 at 5:36 pm | Permalink

        Sorry, this was supposed to be a regular comment, not a response to comment 1. My fault and apologies.

        • Carey Haug
          Posted June 16, 2017 at 8:14 pm | Permalink

          It was clear from the context that this was comment was about the article and not a reply. No apology is needed.

  2. Heather Hastie
    Posted June 16, 2017 at 1:57 pm | Permalink

    This poor man. He’s already gone through so much, and had to expose so much about himself. Now not only does it all begin again, but there’s the chance his integrity will be destroyed too.

  3. David Jorling
    Posted June 16, 2017 at 2:01 pm | Permalink

    As a former prosecutor and public defender, I can say that in many state level prosecutions, (and civil litigation) junk science is frequently admitted as evidence. Its different in the federal courts, where judges act as a gate keeper to keep out junk science, which is outlined in the federal rules of evidence (unless they have been changed – I have not practiced in 10 years). At the state level, all it takes usually to get junk science admitted into evidence is an expert, who is otherwise qualified to testify on the subject matter at hand, that it is not junk science. And such charlatans can usually be found (and paid) to say so. (We see this with a few climate scientists who dispute climate change, for example). The problem is the American Trial Lawyers Association, along with their statewide counterparts, consistently lobby state legislatures to keep the rules of evidence that allow what would otherwise be labeled as junk science. the fix to this is with the state legislatures.

  4. healthyweights
    Posted June 16, 2017 at 2:12 pm | Permalink

    Excellent points on the jury’s grasp of science. Here is Singer’s take on our grasp of punishment.

    Who Is the Victim in the Anna Stubblefield Case? – https://nyti.ms/2nz9G5j

    • Posted June 16, 2017 at 2:16 pm | Permalink

      A good article. I do note that the authors (there are two) say that they need an independent test to see whether FC really works in D.J.’s case. A quote:

      . . . It also suggests the possibility that D.J. himself is now in a situation akin to “locked-in syndrome,” finding himself suddenly deprived of any means of communication after two years of being able to express his thoughts through Stubblefield and Jones. To determine whether this is true, his ability to communicate via facilitated communication should be established by independent testing. This should be done for his sake and for Stubblefield’s.

      • Adam M.
        Posted June 16, 2017 at 5:06 pm | Permalink

        Yeah, it could theoretically work to some extent, but the quotes attributed to D.J. in the Times article are so sophisticated and would require so much education to produce that I think it’s fair to assume they were largely fabricated (subconsciously) by Stubblefield.

        • somer
          Posted June 17, 2017 at 2:13 am | Permalink

          Yes – going by the New York Times article sometimes he uses sophisticated grammar and words “valiantly” etc or the desire for red wine and a very particular label of red wine and yet at other times he communicates ungrammatically. That said Stubblefield has a lifetime of well meaning research and social work and as one FC sceptic said – at least it gives the recipient friendly contact, some different stimulation re pictures and words. Seems to me she really doesnt deserve the kind of first degree aggravated sexual assault charge she was initially charged with. Im not qualified so no further comment but overall FC looks to be pseudoscience so the risk with this retrail is legitimising the practise.

          • somer
            Posted June 17, 2017 at 2:19 am | Permalink

            “and as one FC sceptic said – at least it gives the recipient friendly contact, some different stimulation re pictures and words” Im talking about FC that is – not about Stubblefields abuses using it.
            Of course its possible FC could occasionally help some people whose diagnosis of severe intellectual disability is actually incorrect.

          • BJ
            Posted June 17, 2017 at 9:17 am | Permalink

            The fact that she “meant well” doesn’t excuse her raping a vulnerable person with the mind of a three year old. In fact, that she had been in the field so long means she should know better. We don’t say in statutory rape cases “well, there was no ill intent, so lets not punish them harshly.”

    • Gregory Kusnick
      Posted June 16, 2017 at 6:50 pm | Permalink

      An interesting take, but I do have one quibble:

      On the assumption that he is profoundly cognitively impaired, therefore, it seems that if Stubblefield wronged or harmed him, it must have been in a way that he is incapable of understanding and that affected his experience only pleasurably.

      I don’t think that follows. Even if D.J. found the immediate sexual experience pleasurable, the fact that Stubblefield has sole control over when and how often he experiences that pleasure could be a source of considerable distress to him. This may be a harm D.J. is incapable of understanding, but not one he is incapable of feeling.

  5. eric
    Posted June 16, 2017 at 2:37 pm | Permalink

    I am amazed at this from a legal standpoint. IANAL but it seems to me this is the defense team getting to decide what the victim’s testimony means and says.

    Now, if the prosecutor accepted that FC worked and that the disabled victim communicated that way (if, for example, they took testimony from him via FC), then yes it would seem only fair to admit the defenses’ use of it too. But if the prosecutor doesn’t buy into it, how can the judge admit it as testimony?

    • Gregory Kusnick
      Posted June 16, 2017 at 5:46 pm | Permalink

      I’m not sure I grasp your point. Are you suggesting that prosecutors should have a blanket veto on expert testimony offered by the defense? How would that serve justice?

      • eric
        Posted June 16, 2017 at 8:06 pm | Permalink

        If the defense claimed the dude had consented in an email, the prosecutor would demand they produce the email. If the defense claimed the dude had consented in a phone call, the prosecutor would demand they produce a record of the call. If the defense claimed the dude had consented via telepathy, the judge and prosecutor might laugh but again, as with the more mundane cases, as a legal matter the prosecutor would place the burden of proof on them to show such a communication existed. The defense’s word that they were contacted via email, phone, or telepathically wouldn’t cut it. So why is the defense’s word that they were contacted FC-wise being admitted?

        • Gregory Kusnick
          Posted June 17, 2017 at 1:52 am | Permalink

          Maybe I’m still missing your point, but it seems to me (as a non-lawyer) that whether or not the dude consented by (say) email is a question of fact for the jury. The defense is entitled to present evidence that he did, and the prosecution is entitled to try to refute that evidence — in court.

          The prosecution does not get to exclude evidence simply because they find it unconvincing. Deciding whether evidence is convincing is the jury’s job.

          The judge’s job is to decide whether the evidence meets the standards of admissibility. Whether the prosecution “buys into it” should not be a factor in that decision.

          • BJ
            Posted June 17, 2017 at 9:19 am | Permalink

            The prosecutor isn’t the one who decides what is or isn’t admissible. That is for the judge to decide after hearing both sides, and the judge decided that FC was bullshit. The Appellate Court actually affirmed this part of the decision.

            • Gregory Kusnick
              Posted June 17, 2017 at 11:40 am | Permalink

              This is exactly my point.

          • Ken Kukec
            Posted June 17, 2017 at 11:58 am | Permalink

            Judge’s play a “gate-keeping” role in determining whether scientific, technical, or other specialized testimony is admissible. Under Federal Rule of Evidence 702 (which has been adopted in most state jurisdictions) expert testimony is admissible if it would be “helpful to the trier of fact” (as opposed to merely substituting the expert’s opinion for something the jury is equally equipped to determine), and if it’s based on sufficient facts and data and is “the product of reliable principles and methods” reliably applied.

            A judge, of course, cannot prevent a defendant from presenting his or her defense. In this case, for example, Stubblefield has a constitutional right to testify to her good-faith belief that the victim consented. But neither she nor her chosen witness is entitled to testify as an expert and claim that FC is accepted by the scientific community, where the trial judge has determined at a pretrial hearing that it is not.

  6. Ken Kukec
    Posted June 16, 2017 at 3:42 pm | Permalink

    After reading this post, I read the opinion of the New Jersey appellate court reversing Stubblefield’s conviction (which is available here).

    The appellate opinion can be criticized as vague and confusing, and perhaps impractical in application, I think, but it’s not quite correct to say that “Stubblefield will be able to present FC as evidence of consent” at her retrial. Instead, the appellate court expressly affirmed the trial court’s exclusion of the FC expert testimony. The court, nonetheless, held that evidence of other evaluations of the victim done by the defendant’s same expert witness (some of which, admittedly, seemed to have been contaminated by at least a hint of FC) should have been admitted at the defendant’s trial.

    Also, FWIW, the appellate court remanded the case to a new trial judge because of prejudicial remarks the original judge made at sentencing, rather than at trial in front of the jury.

    • Posted June 16, 2017 at 4:51 pm | Permalink

      Yes. Apparently some long list of questions that D.J. somehow answered without benefit of FC.

    • Craw
      Posted June 16, 2017 at 9:50 pm | Permalink

      This seems the core finding

      “IV

      Unfortunately, the court, in its attempt to cleanse the record of controversial FC methodology, limited the evidence to the extent that defendant was not given a fair opportunity to present her defense.”

      As you say, they are not ruling that FC should have been allowed, or will be allowed in the retrial.

  7. Posted June 16, 2017 at 4:16 pm | Permalink

    Other questions might be; Is it impossible for a person with CP to desire or enjoy sex or love?
    Is it not possible that this is denying love to a person based on his illness? Isn’t this kind of a case of guilty until proven innocent?

    • Posted June 16, 2017 at 4:47 pm | Permalink

      This individual, “D.J.”, was found to be mentally incapacitated, thus unable to consent.

      Defendant and her expert witness claim otherwise, but based solely on their FC assessment of D.J.

      It’s not the Cerebral Palsy, rather the mental incapacitation that is determinant here.

      • Carey Haug
        Posted June 16, 2017 at 8:20 pm | Permalink

        When someone has severe CP, it is extremely difficult to determine their cognitive status. In theory at least, DJ could have adequate cognitive skills, but be unable to show them due to having no motor skills. I agree it’s an issue of mental capacity, not CP.

        • Posted June 19, 2017 at 11:36 am | Permalink

          Is the court allowed to ask for its own cognitive evaluation in a case like this? (I suspect the answer is “no”, in this jurisdiction, but I could be wrong.)

    • Adam M.
      Posted June 16, 2017 at 5:15 pm | Permalink

      Yeah. Above, ‘healthyweights’ linked to an article by Jeff McMahan and Peter Singer arguing in part that the sex caused no apparent harm and there’s a good chance it was enjoyable, which is a fair argument if what you care about is not causing harm. But if that was a legally acceptable defense, I imagine a lot of sex-related laws (e.g. statutory rape laws) would have to go…

  8. Benjay
    Posted June 16, 2017 at 4:52 pm | Permalink

    In 1378 a farmer in Scotland allegedly had communion with a sheep…to save face. Missus is done like a lambchop dinner. I hope we have the tech for him to tell his skin yarn someday. I’d brew the beer for that healing circle. Horrible bosses. Desperate shepards.

  9. Posted June 16, 2017 at 5:01 pm | Permalink

    Of course, even were he able to consent, it still would be a gross ethics violation to sleep with her client.

    • Carey Haug
      Posted June 16, 2017 at 8:23 pm | Permalink

      Agree 100%. It was wrong. But the sentence might be too harsh if it could be proved he gave his consent. This would be difficult to prove, though.

  10. Ullrich Fischer
    Posted June 16, 2017 at 5:04 pm | Permalink

    What the FC? 🙂

    • enl
      Posted June 16, 2017 at 5:39 pm | Permalink

      “Facilitated communication” is a technique that believers think allows people otherwise unable to communicate to communicate by the written (typed) word.

      It has been shown to be, politely, junk science. More accurate would be using a human unable to defend themself as a ouiji board. I might venture, even, that in many cases it is a way to fraudulently use the severely disabled to affirm otherwise questionable actions, such as gaining control of an estate or trust.

      In most cases, it is used by the self deluded with no intentional animosity.


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