Will Anna Stubblefield get a new trial in her facilitated communication case?

Can a Multiple-Choice Quiz Prove a Disabled Man Consented to Sex?

Can a Multiple-Choice Quiz Prove a Disabled Man Consented to Sex?

The state of the universe.
April 11 2017 5:55 AM

Talking Without Talking

The case of Anna Stubblefield and “facilitated communication” is back in court. Will previously blocked evidence prove her sex assault victim had the means to consent?

Anna Stubblefield sentencing
Anna Stubblefield, the former Rutgers professor and convicted rapist, is led in to the superior court for her sentencing on Jan. 15 in Newark, New Jersey.

Robert Sciarrino/NJ Advance Media via AP

Last Tuesday morning, in a tiny, crowded courtroom in New Brunswick, New Jersey, a panel of appellate judges heard arguments in the case of convicted rapist Marjorie Anna Stubblefield. In the fall of 2015, Stubblefield, the 47-year-old former chairwoman of philosophy at Rutgers University in Newark, was found guilty on two counts of aggravated sexual assault and sentenced to a dozen years in New Jersey’s Edna Mahan Correctional Facility for Women. Her victim (or her paramour, if you take her story at face value) is a mute 35-year-old with cerebral palsy who has been diagnosed as having severe physical and cognitive impairments. “I was deeply in love,” she wrote in a letter to the judge after her conviction. “I believed that he and I were intellectual equals, and that our romantic relationship was consensual and mutually loving. I intended no harm, and I had nothing to gain.”

Daniel Engber Daniel Engber

Daniel Engber is a columnist for Slate

From the start, Stubblefield claimed that “D.J.,” as he’s known in court documents, consented to their affair through what’s called “facilitated communication.” That is to say, he typed out his words on a portable keyboard, with her hand supporting his and pulling back against his frequent muscle spasms. At trial, though, the state convinced a jury that Stubblefield’s efforts at facilitated communication had been a sham—that Stubblefield was the true author of D.J.’s keyboard messages, whether she realized it or not. That meant her romance with D.J. had been at best a reckless Ouija-board delusion and at worst a knowing fraud. (For more background on this case, see my feature for the New York Times from October 2015.)

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Now it seems that Stubblefield may get a second chance. Her lawyers argue that, as a result of mistakes during the trial, her conviction should be overturned and the case retried. The judges’ questions at the hearing on last Tuesday hinted at an opening: Had the trial judge been unfair to Stubblefield by excluding evidence that would have helped her lawyers prove that D.J. really can communicate?

At the heart of the appeal is Judge Siobhan Teare’s decision to exclude from the courtroom most evidence related to—or stemming from—facilitated communication. Before the trial started, Teare had ruled that Stubblefield’s lawyers could not introduce any text at all from D.J.’s keyboard, nor could they ask any witness other than Stubblefield herself to describe D.J.’s typing or what it appeared to say. They couldn’t have their own experts in FC—including the method’s inventor, Rosemary Crossley—testify as to the method’s value. And, perhaps most importantly, they could not introduce nor even reference Crossley’s own assessment of D.J.’s intelligence, captured on video across three days and 12 hours in early January 2014.

According to Stubblefield’s lawyers, the exclusion of those videotapes alone could be grounds for a mistrial. The tapes clearly show, they say, that the alleged “victim” of this heinous crime is both literate and capable of making judgments for himself—that he can indeed communicate, to give consent and otherwise, without any facilitation whatsoever.

In an op-ed published by the New York Times last week, philosophers Jeff McMahan and Peter Singer declared their support for this point of view. Their essay, titled “Who Is the Victim in the Anna Stubblefield Case?,” notes that the tapes appear to show that D.J. can read and answer multiple-choice questions—of which he got 43 of 45 correct—by reaching out, unaided, to a set of targets on a board. The fact that these and several other pieces of evidence were kept from the jury, they write, means that the “verdict was given in ignorance” of key facts and that, indeed, “Stubblefield herself is a victim of grievous and unjust harms.”

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The Times essay is derived from the brief that Stubblefield’s lawyers wrote in support of her appeal. The op-ed does not interrogate what those tapes do (or don’t) reveal, why the judge might have deemed it necessary to exclude them, and the extent to which they might (or might not) help us understand what really happened. None of these are simple matters.

Why were these tapes recorded in the first place? Three times before, experts had assessed D.J. and made reports about his competence. All three concurred on some basic impressions: that D.J. is nonverbal, that he can make his feelings known through high-pitch sounds and grunts, and that his language comprehension is at best quite modest, roughly equivalent (if such equivalencies have meaning) to that of an infant or a toddler. After Stubblefield’s arrest, her lawyers argued that these conclusions were mistaken. Through negligence or prejudice, they said, the experts had confused D.J.’s physical impairments for mental ones. Since D.J. couldn’t talk or hold a pencil, evaluators wrongly assumed that he had nothing to say. So the defense asked Crossley, as well as a second expert practitioner of facilitated communication named Marilyn Chadwick, to provide a more open-minded and inclusive test of D.J.’s skills and capabilities.

Judge Teare agreed to this assessment, under the supervision of a Newark police officer and with the strict proviso that Crossley and Chadwick would not use facilitated communication to make their findings.

It had not been clear, at first, how FC-related evidence would be handled in Stubblefield’s trial. Some judges have chosen to view the method as being something like translation, i.e., a means of hearing testimony from witnesses with certain disabilities. But most courts, including Teare’s, have treated FC as a form of scientific evidence—a clinical tool, applied by experts, that purports to help us understand a person who cannot otherwise communicate.

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In New Jersey, scientific evidence is admissible at trial only if a judge determines that its methodology is generally accepted by a relevant community of experts. FC clearly fails this test. The use of supporting typing as a means of communication was aggressively debunked during the 1990s, most notably by a Frontline exposé that aired in 1993. While a small and fervid group based in Syracuse, New York, (where Stubblefield trained) persists in its devotion to the practice, almost every professional association with a stake in the matter—including the American Academy of Pediatrics, the American Psychological Association, the American Speech-Language-Hearing Association, and the International Society for Augmentative and Alternative Communication—has put out an official statement calling FC unproven, unreliable, or worse.

When Judge Teare reviewed arguments on the status of FC before the trial, she found that it was not generally accepted. (Stubblefield’s lawyers now say this was the right decision.) As a result, she decided to exclude all evidence relating to FC. This ruling would apply to the defense assessment, too: Crossley would need to demonstrate D.J.’s intelligence without the use of facilitation.

But when the tapes came in, they showed that Crossley had indeed been holding D.J.’s arm, as well as his shoulder and his hand, at points throughout the three-day-long examination. The defense argued that this was irrelevant, since Crossley had been able to elicit 45 responses to factual questions from D.J. without touching him at all. As McMahan and Singer noted in their op-ed, D.J. signaled the correct answers 43 times by reaching out to press a button or touch a target on a board. After consulting with a statistician, Stubblefield’s lawyers concluded that the odds that D.J. had lucked into those answers randomly was about 1 in 18 billion.

Still, there were reasons to be wary of the tapes. A critique of Crossley’s assessment—prepared for the prosecution by her longtime adversary, Harvard speech pathologist Howard Shane—pointed out that she’d been holding up the targets for those 45 questions. In his view, that meant D.J.’s answers could have been influenced by Crossley, via her own subtle movements (whether she was aware of them or not). Shane had been involved in the Frontline exposé, which included video footage of Crossley in conversation with a comatose man who “spoke” by touching a board with a head-mounted pointer. Frontline’s examination of the tape suggested that Crossley moved the board herself so as to counterfeit the man’s response.

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Shane also noted that some of D.J.’s answers, scored as “correct” by Crossley, were in fact ambiguous. In response to one multiple-choice question, he said, D.J. reached out with both arms at once, appearing to touch the letter A with his left hand and the letter C with his right. Crossley’s notes describe only the right-hand movement—the one that happened to land on the correct answer. “There was no evidence to indicate that D.J. himself was responding meaningfully on these devices to any of the examiners’ actions, requests, or commands,” Shane wrote.

In a written rebuttal, Crossley said that she had no choice but to hold the targets herself, since she had so little time to work with D.J. If she’d been given more freedom to experiment, she says, she could have found a way to fix the targets in place. “I was very careful to hold the devices steady,” she told the court at a pretrial hearing in January 2015, adding that D.J.’s movements were very large, so little quavers of the targets would not have made a difference.

When Judge Teare reviewed the evidence, she found it problematic. She declared that D.J. had not, in fact, given any answers “independently,” since Crossley “may have assisted D.J. [by] moving the device.” The assessment was invalid, so it would be barred from court.

Like the members of the jury, I’ve never had the chance to watch the tapes, so I can’t draw my own conclusions. That’s precisely the argument of Stubblefield’s lawyers: The members of the jury should have been allowed to interpret the evidence for themselves. Sure, Crossley was holding the target. Sure, this may have introduced some bias to the test. But this was not facilitated communication, since on these questions, at least, no one steadied D.J.’s arm to help him type or point. And if Crossley had not been using FC, then the facts on tape did not deserve to be sequestered in a special realm of scientific expertise. Rather, they should have been displayed in open court and considered using common sense. Why not let the members of the jury watch the evaluation, so they could decide whether Crossley had been cheating?

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In last week’s arguments, that turned out to be a weak point for the state. Had Crossley used FC or not? In truth, what Crossley did with D.J. does not fit any standard definition of the method. In their official statements decrying the practice, professional societies have variously described the method as involving the physical support of “the individual’s hand,” or of his “hand or arm,” or of his “index finger, hand, arm, elbow, or shoulder.” There’s no mention of anyone holding up a set of targets.

Even professional critics of FC seem to lack a clear consensus on the meaning of the term. At Stubblefield’s trial, James Todd, a psychologist who has testified against the use of FC half a dozen times, defined the method as one in which the facilitator “acts essentially as a prosthetic device to aid the subject in accurate typing or pointing.” (One could argue that Crossley’s holding of the targets fits that category.) But when I’d spoken with him several months earlier, he’d used an even broader definition, saying that FC refers to any method that “simulates communication” by using physical, tactile, gestural, or verbal cues. I pointed out that by this logic the term “facilitated communication” could be applied, ex post facto, to nearly any method that Todd happened to identify as bogus. “Reality has a troublesome tendency to be tautological,” he told me with disconcerting frankness.

The state’s lawyer, Kayla Elizabeth Rowe, argued last week that holding up targets wasn’t quite FC but that Crossley had still made use of an invalid and disallowed technique. Even if the members of the jury had been allowed to see the tapes, she said, they would have understood that its findings were manipulated.

“But if the jury could see the manipulation, then why not let them?” one appellate judge asked.

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Because debating the videos would have distracted them, she answered. Looking at the footage would have been a waste of everybody’s time.

That’s a flimsy argument, given the importance of the tapes for Stubblefield’s defense. I think it’s also predicated on a false belief. The manipulations ascribed to Crossley can be very hard to see. When a facilitator influences a person’s typing—a risk acknowledged even by the method’s staunchest advocates—the Ouija-board effect may be more or less invisible. I’ve watched countless videos of people typing through FC and conducted many interviews with FC users, face to face. I can now say this much with certainty: Whether or not you think the method is reliable, there’s no way to know for sure just by watching it on tape. That’s true in situations where the facilitator is holding someone’s hand and in which the facilitator is holding the device.

That’s why I’ve always found the method Crossley used in her assessment troubling. If the point had been to show, once and for all, that D.J. can communicate unaided, then why would she decide to hold the targets in her hand? She must have known that this approach would be challenged, as it had been more than 20 years ago, on the episode of Frontline. And what about the fact that, when Howard Shane did his own assessment of the victim, D.J. showed he could reach out to grab bits of food that had been laid out in front of him on a table? If D.J. can make those reaching movements without support, then he ought to be able to do the same for answer targets.

I couldn’t help but wonder why Crossley didn’t ask D.J. to express himself in a different way. While many aspects of D.J.’s competence have been disputed in this case, his ability to slide across the floor unaided is not in question. At trial, D.J.’s mother testified that he scoots into the kitchen when he’s hungry. Later, Stubblefield testified that the first time they tried to kiss in his bedroom, D.J. became uncomfortable and scooted out of the room. “Scooting is the only way he could ambulate independently,” she explained.

Since the parties all agree that D.J. can scoot to where he wants to go, there should be a simple and straightforward way to test his competence. Instead of holding up an answer board and having D.J. reach for a letter card, Crossley could have suggested that he scoot his way to a corner of the room, with each corner representing a potential answer to a multiple-choice question. If D.J. could demonstrate his ability to answer questions via scooting, it would be possible to prove that he is indeed a cognitively intact individual who is capable of providing sexual consent.

But, alas, this didn’t happen. Instead, Crossley decided that holding up a set of targets—using a method she knows full well has been contested—would give her the answers she was looking for. When I asked her via email about designing a “scooting test” for D.J., she responded that it “might be physically possible.” She’d worked hard to establish a rapport with D.J., Crossley said, but “how much rapport do you think we’d have established if we’d insisted D.J. stay on the floor?”

She also questioned whether any test at all would have satisfied the judge. “People with prejudices will just raise the bar higher any time it’s jumped,” she said. “That was clearly the judge’s aim, and she wasn’t about to allow any whisper of a positive test result near the jury.”

The Crossley tapes are just one factor the appellate judges will consider in deciding whether to grant Stubblefield a retrial. The judges will also look at whether the exclusion of most evidence about FC undermined what might have been Stubblefield’s most effective defense. In order to convict, the jury had to find that D.J. was unable to consent to a relationship with Stubblefield and that she “knew, or should have known” that fact.

As a consequence of the trial judge’s ruling, no one except Stubblefield could testify as to the content of the messages that were typed on D.J.’s keyboard using facilitated communication. For many months, D.J.’s brother and his mother took the typing at face value. They believed Stubblefield really had unlocked the door to D.J.’s inner self and given him a way to speak. For all those months, they too conversed with D.J., using Stubblefield as their translator.

There were lots of others, too, who watched Stubblefield work with D.J. and treated his communication as legitimate. The pair even went to conferences where they used FC to make presentations to supportive crowds. That doesn’t mean D.J.’s messages were real (or that he can consent to sex), but it does speak to what she “knew, or should have known.” If her faith in facilitated communication had been misguided, then she’d gotten lost in a crowd of fellow travelers.

None of this came up during the arguments at last week’s hearing. Instead the judges seemed more concerned about the Crossley tapes and whether the trial judge might have double-counted certain aggravating factors in determining a sentence for the crime. Will concern about the tapes or any other issue be enough for Anna Stubblefield to get a second trial? The appellate court has 90 days to decide.

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