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One of the stranger legal cases to ever touch academe took an unexpected turn last week when an appeals court overturned the convictions of Anna Stubblefield. The former chair of philosophy at Rutgers University at Newark was sentenced to concurrent 12-year prison terms for two counts of aggravated sexual assault of a disabled man, though she claimed the contact was consensual based on a highly contested form of communication.
Stubblefield said she and the man, known in court documents as D. J., were in love, but a jury found she’d raped him. That’s after his family members and other experts said he was unable to consent due to severely limited intellectual capacity stemming from cerebral palsy.
Stubblefield lost her job and went to prison but appealed the case based on the fact that the jury hadn’t been allowed to hear from her own expert witness. That witness, Rosemary Crossley, is controversial in her own right but found that D. J. could communicate. Yet Crossley in her assessment used the form of communication that Stubblefield did in her own interactions with D. J., and her entire three-day evaluation was deemed inadmissible.
Not a “recognized science” was what the judge in Stubblefield’s first trial called facilitated communication, in which an assistant physically helps a person communicate -- usually holding their hand over a keyboard or letter board. The overwhelming scientific consensus is that facilitated communication doesn’t work, since the communicaton assistant will inevitably influence what comes across, even unknowingly through what’s been called the ideomotor reflex. Facilitated communication’s most uncharitable descriptions characterize it as no better than a Ouija board.
Still, the method has its champions, who say it’s helped unlock the inner thoughts of those who can’t otherwise communicate them to the outside world, including nonverbal people with autism. While many academics and others following the case said it was clear that Stubblefield used her position of authority as an ethics scholar and a trusted family friend to rape D. J. in her office, some saw the case as raising crucial questions about the autonomy of disabled persons. At times during Stubblefield’s case, it seemed like facilitated communication was on trial alongside her, though, again, the judge never let the jury hear from an expert proponent.
The appeals court found that decision to be flawed, however, and ordered a new trial in which the jury -- not a judge -- would be able to assess the validity of Crossley's conclusions.
In a decision released Friday, State Judge Ellen Koblitz said that Stubblefield “was precluded from fully presenting her defense” based on the lower court’s “cleansing” of facilitated communication from the record. Ordering another trial with a new judge and Crossley’s assessment of D. J. -- at least those parts not involving facilitated communication -- Koblitz said that the first jury was unfairly given “no evidence that any other lay or expert person believed D. J. to have the intellectual capacity to consent to sexual activity.”
She noted, for example, that the jury on the first go-around also was not able to review portions of Crossley’s evaluation in which D. J. was said to have independently correctly answered 43 of 45 scored questions, most of which required literacy skills. The judge also said that another witness -- an assistant who’d interacted with D. J. as college student -- was prevented from testifying and speaking of her experiences with him.
“The factual setting here was extraordinary, and it called for a liberal admission of evidence supporting defendant's defense to allow her the opportunity to convince the jury of the reasons for her unorthodox perception of D. J.'s capabilities,” Koblitz wrote. “The jury was not presumptively gullible. It did not have to be shielded from employing its common sense to fairly evaluate the testimony from both sides.”
The decision also notes that the only evidence of Stubblefield’s alleged assaults comes from Stubblefield herself. Some context: the former professor learned about facilitated communication from her mother, the disabilities scholar Sandra McClennen. Focused on racial justice early in her career, Stubblefield increasingly centered her work on ableism, or discrimination against disabled people. In 2008, after she showed the film Autism Is a World to a class, a graduate student approached Stubblefield and asked if something he’d seen -- facilitated communication -- might help his younger brother, D. J.
Stubblefield began to work with the man, pro bono, first supervised by the family and then alone. By 2011, their relationship turned romantic, according to what Stubblefield told the family. Horrified, they broke off contact, but Stubblefield continued to share her feelings for D. J., saying she’d leave her own family for him, and attempted to visit him at his day care facility. The family contacted Rutgers to complain, launching what would become a criminal case.
Crossley, who is based in Australia, did not immediately respond to a request for comment. She runs the Anne McDonald Centre for facilitated communication, which in Australia more than in the U.S. means both physically assisted communication and independent communication by nonverbal people using computer-like or other devices. Crossley made a name for herself in the 1970s and '80s by training teenagers with cerebral palsy to communicate through spelling, eventually writing a book turned movie called Annie’s Coming Out about her first student, Anne McDonald.
Crossley has fans but also critics -- a lot of them. Among her detractors is, interestingly, the magician James Randi, who was so confident facilitated communication is a hoax that he once offered a $1 million cash prize for proof that it works. Others have said that facilitated communication may well work, but argued that Stubblefield's case, with all its particulars and criminal bent, is a poor vehicle for discussing it.
Others still have focused their concerns more on disability studies scholars’ reactions to Stubblefield. Mark Sherry, professor of sociology at the University of Toledo and immediate past chair of the American Sociological Association’s disability section, wrote a 2016 paper saying he was disappointed in the way some academics have failed to broach potentially significant questions surrounding the case.
“I am deeply concerned that there has been a lack of critical reflection from disability studies scholars as to the danger of their role becoming de facto rape apologists,” for example, he wrote. “It seems to me that disability studies scholars ought to be framing this behavior in terms of the epidemic of rape and sexual violence against disabled people, which has been documented elsewhere. We live in a rape culture -- the fact that very few disability studies scholars are framing their discussions in terms of rape culture is alarming.”
Pointing out that D. J. is black, while Stubblefield is a white academic who offered to help him for free, Sherry wrote, “These dynamics cannot be ignored -- imbalances of power underlie most cases of sexual abuse, rape and other forms of sexual violence. Yet they seem to have been sidelined when disability scholars rallied around their colleague and friend.”
Sherry said this week that despite the overturned convictions, Stubblefield’s “rescue fantasy and need for power resulted in the rape of this intellectually disabled man, justified through the sham technique of facilitated communication.” He accused the appellate court of admitting a “discredited pseudoscience through the back door” and Crossley of manufacturing assessment results in a way that still amounts to facilitated communication. He also said he feared the decision will "intensify the suffering" of the "true victims" in the case, and "embolden more people using facilitated communication to unconsciously manufacture the consent of their rape victims to justify behavior that should result in imprisonment.”
Jason Travers, an associate professor of special education at the University of Kansas and outspoken critic of facilitated communication, said allowing Crossley's testimony could change the verdict in the new trial, "but not because she obtained authentic evidence that the victim could communicate." Whether Crossley held the victim's hand, as did Stubblefield, or held a letter board in front of his suspended finger, he said, "the use of facilitated communication during assessment can only produce erroneous results."
Allowing Crossley to endorse this "quintessential pseudoscience" and asking a new jury to consider it could wrongly lead at least someone to believe it's legitimate, Travers added. "We live in a post-fact world where scientific evidence is increasingly devalued and poorly understood. Facilitated communication is a remarkably powerful illusion capable of compelling belief among individuals of all stripes. Why wouldn't we expect a jury of our peers to be impervious to its allure?"
D. J. supposedly authored an academic paper, with Stubblefield’s help, published by Disability Studies Quarterly in 2011. In it, D. J. references the work of psychologist Steven Pinker, among others. The article was retracted earlier this year, but not based on Stubblefield’s conviction or any stated problem with facilitated communication. Rather, the editors blame the paper's “major overlap” with an article D. J. also published in The Communicator, a publication of the National Autism Committee. That issue includes a tribute to McDonald, Crossley’s first client.
A spokesperson for Rutgers did not immediately respond to a request for comment.
Stubblefield also was ordered to pay $4 million in damages to D. J.'s family in a separate civil case last year.