Caroline Kendall Kortner’s high school photos showed her to be "one of the most beautiful young women I have ever seen," according to Stamford lawyer Christopher C. Burdett.
Born in 1970, Kendall, as she was known, died in March 2010, several months after she lost a civil assault and battery trial against her married boyfriend, Craig L. Martise. She was suing the Greenwich computer programmer for physical and emotional injuries arising from their sado-maschocistic sexual relationship, alleging that because she was mentally and emotionally ill, she was little more than a child, legally speaking, and incapable of giving consent.
But a jury of six men concluded that whether or not Martise slapped, whipped, and dripped hot wax on Kortner, this was a matter between legally consenting adults.
But was the jury verdict itself legal?
Kortner’s mother, Mary H. Kortner, who is now the administratrix of her daughter’s estate, is pressing an appeal to the Connecticut Supreme Court. In a case drawing national attention, in part because sado-masochistic sex is a major theme of the ultra-popular Fifty Shades Of Gray novels, the Supreme Court heard arguments last week, on March 12.
Kendall Kortner was always smart, a straight-A student who was admitted to Yale and Trinity, but never attended either. That’s because she had mental health issues ever since she was a young girl, according to her mother.
In 1994, Mary Kortner was appointed Kendall’s conservator, after Stamford Probate Judge Gerald Fox II, on a "clear and convincing" evidence standard, found Kendall incapable of caring for herself. Every three years thereafter, according to Burdett’s briefs, the conservancy was renewed.
In 1999, Kendall Kortner encountered Martise in an Internet chatroom. They first met in person in 2003, and the young woman eventually informed her mother the two were having sex.
In his appellate brief, Burdett details the alleged sexual acts. Martise "dressed Kendall — who at the time weighed under 80 pounds, was incontent 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."
Sometimes she donned a cat’s mask, or was collared and led around on a dog’s leash, according to the court documents. He applied nipple clamps and hot wax on her breasts, "tied her up, gagged and whipped her, and on several occasions even urinated on her," according to the briefs. Although Kendall "often pleaded with the defendant not to treat her in such a way, she was powerless to stop him," according to the mother’s brief.
Burdett called the behavior the most "horrendous crime of sexual abuse" he’d heard of in 40 years as a lawyer. Mary Kortner went to police, but Martise, 49, was not arrested. So Mary Kortner sued in 2006, charging that Martise, who is married with four children, had an abusive sexual relationship with Kendall and that her mental health prevented her from consenting to such a relationship.
During the 2009 trial, the defense argued that Kendall 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.
"This is a case that’s unique, bizzarre and sad, but it’s not momentous, " Greenwich defense attorney Phillip Russell said after last week’s Supreme Court arguments. "These are all things that consenting adults do every day."
Case law involving constitutional notions of sexual rights and personal privacy is changing rapidly. In 1986, the U.S. Supreme Court decision in Bowers v. Hardwick upheld a state anti-sodomy law. Just 17 years later, the justices, in Lawrence v. Texas, overturned Bowers and the anti-sodomy laws of 13 states.
Connecticut case law covering this subject matter in the Kendall Kortner cases is much more sketchy. Attorney Burdett reached back to a 70-year old decision, in State v. Chicorelli, in which the state Supreme Court held that consent is not a defense to "indecent assault."
Last week, Justice Peter T. Zarella asked whether Burdett was proposing a bright-line test protecting the mentally ill from sexually predators that would apply to all conserved persons. Or should the court simply limit its decision to the facts of this case?
Burdett said there should be a bright line rule, a position that seemed to trouble the justices.
Zarella noted that there had been a Connecticut statute which stated that "consent to being assaulted was not defense for such [sexual] acts." But he said that law was repealed in the 1990s "because it implicated the constitutional rights of the parties involved. The rule you propose runs afoul of that philosophy," Zarella told Burdett. "Why not leave it to the jury" to decide whether a person is incapable of giving consent?
Brudett responded: "Because that leaves too much of the law’s protection in the hands of trial lawyers and juries."
Justice Dennis Eveleigh said to Burdett, "under your scenario, a conserved person couldn’t date" without the conservator’s permission. "Where do we draw the line in terms of civil liberties?"
The newest justice, Andrew McDonald, noted that people are assigned a conservator for a wide range of weaknesses. Was Burdett equating Kendall’s history of anorexia and bulimia with legal incapacity to make her own decisions? Burdett said he wasn’t sure whether incompetence and incapability are the same, but that the probate court "made a determination of incompetence."
In her Supreme Court appeal, Mary Kortner contended that the trial judge wrongly permitted the defense that Kendall had consented to the sado-masochistic sex to reach the jury. But, McDonald noted to Burdett, "the jury determined that the plaintiff failed to prove the assault allegations. Your client lost on the claims in chief, not the [consent] defense."
Even so, McDonald pressed forward with the consent theme. "Is consent an element of the offense of assault and battery?" Burdett deflected the question, saying Kendall’s consent was "not what happened."
As for defense attorney Russell, he told the justices he was "not in favor of a bright line rule." He said that Kendall Kortner’s level of competence and ability to assent was "comfortably above" the level that would make the alleged sexual acts criminal.
"Since 2002, when Lawrence v. Texas cut the legs out" of all laws seeking to regulate sexual practices, the only solid guideline is criminal illegality, Russell said.
Mary Kortner is also contesting the trial results because the jury was given a confusing document, "Exhibit 7" which was never entered into evidence or explained to the jury.
After the trial court verdict, Burdett said, some jurors had misgivings about the case. They asked to meet with him, and two of them signed affidavits questioning the process, including the issue of the confusing Exhibit 7. When Stamford Superior Court’s Barbara Brazzel-Massaro reviewed post-trial motions, she faulted Burdett for not bringing forward the jurors’ issues, but concluded that the irregularities were not sufficient to require a new trial.
Last week, the justices asked Russell about Exhibit 7. If the plaintiff’s attorney erred in letting the confusing document go to the jury, wasn’t Russell to blame as well? "You’re not wrong," Russell acknowledged. "I watched what was happening at the table" as the exhibits were processed. "I looked, but not thoroughly. Hindsight is 20-20."
In an interview after the Supreme Court arguments, Burdett said he has been pursuing this case for nearly a decade, on a contingency, as a labor of the heart. He said he would take the issue of protecting the mentally ill from sexual predators to the legislature if he does not win a new trial.
Despite his setbacks to this point, Burdett said he was told by four separate judges in pre-trials that the case should settle for $1 million to $2 million. Has rejected a $300,000 offer.
"This case is about much more than money," Burdett said. "What happened here was totally beyond the pale, totally beyond what’s acceptable in a civilized society."•