NEWARK — Does a man with cerebral palsy who can’t speak, who wears a diaper and who can’t eat, walk or move on his own have the capacity to consent to an adult sexual relationship?

A Rutgers University philosophy professor argued yes — and as a result was arrested, convicted and sentenced to 12 years in prison on charges that she raped a physically impaired and mentally incapacitated man with whom she claims they had fallen in love.

The trial brought public attention to a controversial form of purported communication with disabled people who can’t speak.

But the jury in the trial was never allowed to consider this argument, leading an appellate judge on Friday to rule that Marjorie Anna Stubblefield was not given a fair trial.

Stubblefield worked with the disabled man, 10 years her junior, for two years using the method known as “facilitated communication.” In the method, a person helps a disabled speaker by holding or guiding their arm or hand to push buttons that spell out words or phrases.

Adherents of this method, Stubblefield included, say this allows people who have been wrongly classified as intellectually disabled to mentally break out of the confines of their physical disabilities.

But the practice has many detractors who view facilitated communication as no more reliable than the messages of a Ouija board parlor game.

That's what the trial judge believed, and what caused him to prevent Stubblefield's attorney to present any evidence or testimony that could indicate that the victim was able to communicate using faciliated communication.

The judge, for example, did not allow an Australian communication expert who had evaluated the victim to testify that she believed the man was able to read and write based on a facilitated communication test she gave to him. In that test, the expert found that the man was able to correctly answer 43 out of 45 yes-or-no questions.

But the judge viewed a video recording of the test and found that it appeared that the expert may have helped the man answer the questions by moving his arm for him.

The appellate decision on Friday, however, said this should have been a judgement call for the jury, not the judge.

"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," the decision says.

"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 [the victim's] capabilities. 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 appellate decision also found fault with the judge excluding from evidence the printout of the man's answers to questions posed by his family after Stubblefield admitted their sexual relationship to them.

After that admission, the family became more skeptical of the method and decided to ask the man questions they say only he would know the answers to.

One question his brother asked was: Who is Georgia?

His answer, which Stubblefield says he typed out with her assistance in front of his family: "John, Georgia in high school worked for mom."

The next question was: Who is Sally?

His unfinished answer: "Georgia in our family circle is mom's little nephew's ki"

The family said it was a trick question: Sally and Georgia are the same person.

But Stubblefield argued that the answers do prove he was able to answer on his own because Georgia had taken care of the man when he was high school age and the relative is in the "family circle" and "kin."

The trial judge excluded the printouts because he said it was hearsay. But the appellate decision says the printouts are evidence that should have been presented to the jury.

In calling for a new trial, the appellate division also requested a new judge handle the case because the previous trial judge showed his bias at sentencing by saying: "I find that the actions of the defendant are the perfect example of a predator preying on their prey."

Sergio Bichao is deputy digital editor at New Jersey 101.5. Send him news tips: Call 609-359-5348 or email sergio.bichao@townsquaremedia.com.

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