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Sunday, August 7, 2016

Man with Autism Asking Virginia's High Court to Hear his Appeal in Sex Assault Case, By Frank Green

I’ve been emailing the Virginia Legislators about Autistic Virginian’s being wrongly accused, incorrectly convicted and mandated to register for life for 5+ years. 

Here are some past posts about Autistic RSO’s since I started this blog in 2013 for anyone interested in the topic.
Mary Devoy


Man with autism asking Va.'s high court to hear his appeal in sex assault case, August 7, 2016
By Frank Green

Did a Chesterfield County judge fail to properly take into account a man’s Asperger syndrome when the defendant stood trial for sexual assault? 


In a case that raises unusual questions stemming from an unusual disability, the Virginia Supreme Court will be asked on Aug. 31 to consider the appeal of Drew Harrison, 30, who was convicted of a 2012 assault on a woman who, by all accounts, ordered the sexual contact to stop.

While rejecting Harrison’s appeal last year, the Virginia Court of Appeals noted that the victim told Harrison she was interested in bondage, domination and sadism as a “submissive,” or “sub,” partner. She posted on a website that she was attracted to dangerous situations, liked biting, and at times liked rough sex. 

The appeals court also wrote, “The victim’s actions of sending (Harrison) photographs of herself, discussing sexual matters, sharing erotic stories, and inviting him alone to her apartment when she knew he was romantically interested in her certainly proved in hindsight to have been imprudent, particularly when combined with his knowledge of her interest in being a ‘sub.’
 
“These actions, however, hardly constituted an invitation for (Harrison) to force himself on her when she told him both by her words and physical resistance that she did not want him to do what he was doing to her,” the court concluded. 

But Asperger’s experts say someone with the syndrome who has average or better intelligence, who knows right from wrong, and who can appear — at least at first glance — to be “normal,” could readily misinterpret words and actions, especially in a case where the history between the two people could create confusion. 

In a friend-of-the-court brief for the Autism Society Central Virginia, Jennifer S. Nesbitt, a Richmond lawyer, wrote that “although there is no doubt that Harrison willfully engaged in the sexual activity at issue in this case, the evidence tends to indicate that he did so with no knowledge that the activity was against the will of (the victim).”

Nesbitt, a former prosecutor whose cases included sex crimes, argues that the trial judge “repeatedly pointed out that an ordinary person in Harrison’s situation should have and would have understood that (the victim) did not consent. However, the evidence shows that Harrison is not an ordinary person.” 

“He suffers from a neurodevelopmental disorder that directly and significantly impairs his ability to communicate with others and to understand social interactions. Sexual contact is by its nature a social interaction laden with nuance and subtle nonverbal communication,” Nesbitt wrote. 

Nesbitt, along with Harrison’s lawyers, Craig S. Cooley and Jennifer M. Newman, are hoping the Supreme Court will hear the appeal and overturn the convictions because the evidence was insufficient to prove guilt, or send the case back to circuit court so Harrison can present an insanity defense. 

The Virginia Attorney General’s Office, in its brief to the Court of Appeals, opposed such a defense. 

“Concerning the supposed fact that the defendant had Asperger’s and thus ‘reasonably’ perceived (the victim’s) actions to manifest her consent to the sexual encounter, defense counsel expressly conceded at trial that the claimed disorder did not support an insanity defense,” the Attorney General’s Office wrote. 

Nesbitt’s brief, however, argues that, “If Harrison could not properly receive expressions of refusal of consent from (the victim), he definitely lacked the capacity to understand the nature and consequences of his actions as criminal offenses. ... Justice requires remand of this matter for proceedings on an insanity defense.” 

Getting justices to take a case is difficult enough — only 100 to 120 are accepted annually. This one will be even tougher, Nesbitt concedes. Because the Asperger-related question was not raised earlier, the justices would have to agree to take it under a rarely granted “ends of justice” exception. 

The larger issue raised by the case, Nesbitt said, is that Virginia laws against rape and other sex crimes do not require authorities to prove “mens rea,” or one’s knowledge of doing wrong in addition to doing the wrong. 

Asperger syndrome is a high-functioning sub-type of autism. While someone with Asperger’s often can appear normal and have normal or above-average intelligence, there also can be profound social shortcomings that, according to Nesbitt’s brief, can include the inability or limited ability to interpret body language and other non-verbal communication and to be unaware of the distress or disinterest of others. 

A person with Asperger’s can appear unimpaired by copying normal behavior. But legal and medical experts warn that such deficits as an aversion to making eye contact and delays in answering questions can lead to misinterpreting people with Asperger’s as being indifferent, hostile, evasive or even guilty. That especially can be a problem if someone with Asperger’s is a witness or defendant. 

Mary Davye Devoy, a rights advocate for sex offenders, said that during the past eight years, she has been contacted by at least a dozen parents of autistic individuals who are on Virginia’s sex offender registry, some with Asperger syndrome. She said she has heard accounts from some of them that the disability can lead to tragic complications in the legal system. 

***

Harrison was convicted of forcible sodomy and object sexual penetration by Judge Steven C. McCallum on Jan. 22, 2014, and he was sentenced six months later to 50 years in prison with 47 years suspended. 

Last October, a three-judge panel of the Virginia Court of Appeals rejected Harrison’s contention that the evidence failed to prove beyond a reasonable doubt that his actions were against the will of the victim. 

(Harrison also unsuccessfully argued that his rights were violated when a prosecutor allegedly reneged on a promise not to prosecute if he sought treatment. Harrison alleges that because he and his parents believed there would be no prosecution, they decided not to spend $4,000 to $5,000 for experts to retrieve telephone and computer data that might help his defense. When Harrison discovered he would be prosecuted, it was too late to retrieve the data.)

According to the Virginia Court of Appeals’ 14-page ruling, Harrison and the victim had dated previously and had attempted sexual intercourse once. They had maintained an off-and-on friendship and reconnected on Facebook.

She testified she was concerned that he talked about wanting to kill himself and wanted to end a dependency on a prescription drug he was taking for anxiety. 

In late February or early March 2012, the victim said they met at a bookstore and that he did not seem happy. She said he was aware that she was romantically involved with someone else. 

She invited him to her apartment, where he made a pass at her that she resisted, telling him “no.” He followed her into the bedroom, pushed her onto the bed, and removed her clothing. Her bra was torn. She said she pushed him but not too hard for fear of angering him. 

He performed oral sex and penetrated her with his fingers. She bit his lip and said she punched him a couple of times, though not hard. She was able to scoot off the bed and stand up when he relaxed his hold on her. She said Harrison apologized and left when she told him he had to leave. 

In his petition to the Virginia Supreme Court, Harrison’s lawyers wrote that “he described her actions as consistent with the way she acted during their (previous) sexual activity. ... He described her as saying ‘no, no, no’ in a coy and playful tone and playfully lightly hitting him, with a smile on her face.” 

After the incident, at her boyfriend’s suggestion, the victim sought post-sexual assault counseling at the YWCA.

Harrison later sent her a text message that said: “I honestly thought you wanted me to do that, then I wasn’t sure.”

She responded: “What part of please stop and hitting you made you think that I wanted that?” 

He wrote: “I guess when you told me about some of your fantasies, I wasn’t sure if you fighting me was playful or not. I really didn’t know so I stopped.” 

***

Police were not involved until a psychologist working with Harrison grew concerned that he had fantasies about harming or killing the woman. 

Harrison had not been diagnosed with Asperger’s at the time. Harrison’s appeal says the psychologist later testified that had he known Harrison had Asperger’s, he would not have been concerned and would not have notified anyone.

The psychologist testified that when he spoke to the victim about Harrison, she told him he had sexually assaulted her. When he asked why she did not go to the police, she told him, “When I asked (him) to stop, he stopped.” However, the psychologist also said Harrison told him that he had tried to sexually assault her. 

The appeals court noted she did not initially call police and instead hoped Harrison would receive treatment and stay away from her. 

The appeals court held that both Harrison and his therapist said that while Asperger’s may interfere with reading subtle social clues, clear communicative signals were not a problem. The victim testified she said “stop” and “no,” the appeals court said. 

Harrison’s appeal to the Virginia Supreme Court contends McCallum and the appeals court mistakenly found there was sufficient evidence beyond a reasonable doubt to support the convictions. 

Harrison testified that based on prior interactions and her playful demeanor throughout the encounter, he thought she was consenting until she stood up and told him to stop — and he did. 

“In fact, he left her apartment believing she was dissatisfied with his efforts and that he had failed to please her sexually,” his lawyers argue.

“Taken as a whole, the facts supported Mr. Harrison’s interpretation that the sexual encounter was consensual,” his lawyer told the Supreme Court. 

A person with Asperger’s can appear to a casual observer as unimpaired by copying, or faking, normal behavior.

According to the trial transcript, Harrison’s psychologist testified that Harrison “fakes well. He can present himself like a chameleon to fit in, but if you press him and ask him what’s really going on here, he can’t tell you.” 

The Attorney General’s Office, in its response to Harrison’s earlier appeal, strongly supported McCallum’s decision. “The evidence amply proved that (the victim) did not consent to any of the sexual acts committed by Harrison.” 

But Nesbitt argues in her brief that there is no indication the judge considered Harrison’s diagnosis of Asperger’s in determining the relative credibility of the accused and the victim. 

“Given that fact, the trial court’s determination of relative credibility in this matter is fatally flawed and cannot form the basis of a finding of guilt beyond a reasonable doubt,” she contends. 

A three-justice panel sitting in Charlottesville on Aug. 31 will consider whether the Virginia Supreme Court will take up the appeal and hear 10 minutes of argument from Harrison’s lawyers. 

His mother, Judy Harrison, said he was jailed earlier but is free for the time being. “He wears an ankle monitoring device and sees his probation officer once a month and registers as a violent sex offender every 90 days,” she said. 

“Drew is not doing well. He is losing hope. In addition to autism spectrum disorder, he now suffers from post-traumatic stress disorder. His therapist said this is from the jail experiences and fear of being taken back there,” she said.