Court reinstates man’s conviction in sexual abuse of disabled niece

WASHINGTON – A divided federal appeals court Thursday reinstated a man’s conviction in the 2011 sexual abuse of his severely disabled niece on the Fort Apache Indian Reservation.

Christopher James was convicted in 2013 under a section of federal law that prohibits sex with a person who is physically incapable of either refusing to participate or expressing their unwillingness to participate.

But the district court judge in the case reversed the jury’s verdict, saying the victim – who communicated through grunts and nodding – “was physically able to decline participation in a sexual act.”

A divided panel of the 9th U.S. Circuit Court of Appeals disagreed, ruling Thursday that there was “sufficient evidence … to allow a rational juror to conclude beyond a reasonable doubt that the woman was physically incapable of declining participation.”

In a strong dissent, Judge Alex Kozinski said the majority ignored “a solid wall of evidence” that the victim “was capable of communicating her lack of consent when she was so inclined.”

Keith Hilzendeger, the assistant federal public defender representing James, said he was “disappointed in the ruling, and I endorse everything in Judge Kozinski’s opinion,” but declined further comment.

A spokeswoman for the U.S. Attorney’s Office for Arizona declined to comment on the ruling since the case is ongoing.

The victim, referred to in court documents as “T.C.,” has cerebral palsy and is dependent on others for virtually all daily activities, including walking and eating. She can speak with extreme difficulty and is hard for most people to understand, communicating mostly by head movement and grunting.

Court documents said a family member found James having sex with T.C. in August 2011 on the porch of her grandparents’ home – also the home of his adoptive parents, making him her uncle by law.

T.C., who was 28 at the time, was taken to a hospital where a sexual assault nurse examiner found evidence that the incident had occurred.

James admitted to having sex with T.C., telling investigators that he had been drinking at the time and felt ashamed. He asked God for forgiveness and said T.C. was not to blame for any part of the incident.

A federal grand jury indicted James on Nov. 1, 2011, on two counts of sexual abuse. After a three-day trial, another jury returned guilty verdicts on both counts on Aug. 2, 2013.

The judge later granted James’ motion for acquittal on both counts. But the appeals court ruled Thursday that the district court judge “erred by taking the question out of the jury’s domain after it had rendered a guilty verdict.”

The opinion by Judge Richard Tallman said that while some witnesses who knew T.C. well could sometimes understand her, James never lived with her and had not spent sufficient time with her to understand any attempts at communication.

T.C. had difficulty communicating with investigators and was unable to communicate with the treating nurse during the examination, even through yes or no questions, Tallman wrote.

“The law in its majesty protects from assault those who are too weak and feeble to protect themselves,” he wrote. “No society worthy of being called civilized may do any less.”

But Kozinski said the government failed to prove that T.C. “had a physical impairment and that this impairment made it impossible for her to say no to … or otherwise indicate nonconsent to … sexual acts.”

The only question is whether she was able to communicate lack of consent if she chose not to participate. It’s quite clear that the district judge understood and applied this standard,” wrote Kozinski, who said he would have upheld the lower court’s decision.

The majority’s ruling reversed the lower court, ordered the jury verdict reinstated and sent the case back to the district court for sentencing.