People don’t necessarily give up their right to consent to sex — including sadomasochistic encounters — when they are deemed unable to handle their own affairs and placed under the supervision of a conservator, the Connecticut Supreme Court has ruled.
The court’s June 2 decision has garnered attention on national websites and in other publications, as lawyers involved in the case had said this is the first time, to their knowledge, an appellate court in the U.S. has weighed in on whether mentally ill people can legally be considered consenting adults for sexual purposes.
While sadomasochism was glamorized in the popular book trilogy “Fifty Shades of Grey,” the practice has long been on questionable legal ground. Some lawyers believe people can’t consent to being assaulted or abused under common law, while others say established legal principles provide sexual rights to most people, including the elderly in nursing homes and the mentally ill.
In its ruling, the state Supreme Court said simply that every case must be viewed individually.
“On the basis of the statutory scheme for conservatorships, we cannot conclude that any conserved person is legally unable to consent to sexual conduct,” wrote Justice Dennis Eveleigh in the majority’s opinion. “Instead, we conclude that the issue of whether a conserved person is able to consent to sexual conduct is a factual question for the jury to decide based on the nature of the particular conservatorship and the abilities of the conserved person.”
Justice Richard Palmer penned a concurring opinion. Justices Andrew McDonald and Christine Vertefeuille each concurred and dissented in part.
The court was unanimous, however, in its opinion that it is up to juries to decide if individuals are able to consent to sex, and the fact that someone is under the supervision of a conservator doesn’t automatically mean they can’t consent.
The case before the court began in 2006, when Greenwich resident Mary Kortner filed a sexual battery and assault lawsuit on behalf of her now-deceased daughter Caroline Kendall Kortner, against fellow Greenwich resident and corporate executive Craig Martise. The younger Kortner, who was known as Kendall to her family, died in 2010 at age 39 from an undisclosed illness.
Kendall Kortner had been diagnosed with clinical depression, a personality disorder and a range of eating disorders. In 1994, Mary Kortner was appointed her daughter’s conservator after a probate judge ruled that Kendall was incapable of caring for herself. Every three years thereafter the conservancy was renewed.
According to court documents, in 1999, Kendall Kortner encountered Martise in an Internet chat room. They first met in person in 2003, and the young woman eventually informed her mother the two were having sex.
Martise dressed Kortner— who at the time weighed under 80 pounds, was incontinent and wore a diaper, had open wounds on both legs and used either a wheelchair or a walker — in a black crotchless body stocking and introduced the element of domination, demanding that she call him master.
According to court records, sometimes she donned a cat’s mask, or was collared and led around on a dog’s leash. Martise applied nipple clamps and hot wax on her breasts, “tied her up, gagged and whipped her.” Although she often pleaded with Martise not to treat her in such a way, she was powerless to stop him, according to Kortner’s mother.
Mary Kortner went to police, but Martise, 49, was not arrested. So Mary Kortner sued in 2006, charging that Martise had an abusive sexual relationship with Kendall, and that Kendall’s mental health prevented her from consenting to such a relationship.
Kortner’s lawyer, Christopher Burdett of Stamford, called Martise’s behavior the most “horrendous crime of sexual abuse” he had heard of in 40 years as a lawyer. But during the 2009 trial, Martise, through his lawyer Philip Russell, argued that Kortner was an adult capable of making rational choices in sexual matters and that she had consented to any sexual contact she had with him.
The jury of six men found in favor of the defense. Mary Kortner then appealed and the Supreme Court took the case.
Burdett urged the justices to rule that any person under a conservator’s care should be unable to consent to sexual relations. The court declined to do so. “As the majority properly concludes… the mere fact that Kendall was subject to a conservatorship over her person does not render her, as a legal matter, incompetent to make all decisions of a personal nature,” McDonald wrote.
Following oral arguments in March 2013, the justices asked several organizations to submit amicus briefs on whether a conservator needs permission from the probate court to bring a lawsuit for damages on behalf of a conserved person. Briefs were submitted by the Connecticut Bar Association, Connecticut Probate Assembly and Probate Court Administrator, Connecticut Legal Services and the Connecticut Legal Rights Project, which represents people with mental illness.
However, the justices ultimately did not address the standing issue in their ruling.
The organziations were not asked to weigh in on the sexual consent question. However, Daniel Klau, of McElroy, Deutsch, Mulvaney & Carpenter in Hartford, touched on the topic in a footnote of the brief filed by probate court officials.
“It is the amici’s position that the mere appointment of a conservator does not deprive the conserved person of the legal right to consent to sexual relations,” wrote Klau. “Whether a conserved person did, in fact, consent in a particular instance or whether the conserved person lacks the capacity to consent, must be determined under the particular facts and circumstances of each case.”
The state Supreme Court ultimately ordered a new trial on a technicality, saying a letter Kendall Kortner wrote in 2003 about unwanted sexual advances by another man – a custodian in the building where she lived — was mistakenly given to the jury despite not having been properly admitted into evidence.
When jurors asked the court clerk about the document during their deliberations, the clerk did not inform the trial judge.
Russell, the defense lawyer, is unhappy with the order for the new trial. He believes the plaintiff’s lawyer bears just as much responsibility as the clerk for allowing the unadmitted evidence to get into the wrong hands. “The entire boondoggle was precipitated by an error of plaintiff’s counsel who should not get the benefit of the resulting chaos,” said Russell.
Burdett, the plaintiff’s lawyer, was on vacation last week and did not respond to an interview request from the Law Tribune.
He told the Associated Press that he disagreed with the Supreme Court’s finding on the consent issue, but looked forward to a new trial. “The fact remains that Craig Martise did something absolutely horrendous to Kendall Kortner and probably destroyed the last few years of her life, and he should answer for that,” Burdett said.•