People don’t necessarily give up their ability to consent to sex — including sadomasochistic encounters — when placed under the legal conservatorship of others because they are considered unable to handle their affairs, the Connecticut Supreme Court has ruled.
Lawyers involved in the case had said they couldn’t recall any legal precedents in the country on whether mentally ill and disabled people can consent to sex or sadomasochism. The case, which attracted amicus briefs from organizations including the Connecticut Bar Association, Connecticut Probate Assembly, Connecticut Legal Services and the Connecticut Legal Rights Project, which represents people with mental illness.
The state high court’s decision came in the case of Greenwich resident Mary Kortner, who filed a sexual battery and assault lawsuit in 2006 on behalf of her now-dead daughter. The defendant was fellow Greenwich resident and corporate executive Craig Martise.
The Law Tribune reported in March that Caroline Kendall Kortner — known to family members as Kendall — 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, Mary Kortner’s attorney, Christopher Burdett, details the alleged sexual acts. Martise “dressed Kendall — 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.”
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 brief by Burdett.
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.
But Mary Kortner said her daughter, who was mentally ill and partially paralyzed from a stroke in 2001, wasn’t able to consent to the sadomasochistic sexual relationship she had with Martise over several months in 2003. But a jury determined in 2009 that Kortner’s daughter, Caroline Kendall Kortner, was able to consent and found in favor of Martise, a married father of four who was never criminally charged.
Kortner, whose daughter died in 2010 at age 39 from an undisclosed illness, appealed.
was mistakenly given to the jury for deliberations despite not having been properly admitted into evidence.
The state Supreme Court ultimately ordered a new trial on a technicality, saying a letter written in 2003 about unwanted sexual advances by another man was mistakenly given to the jury for deliberations despite not having been properly admitted into evidence.
Two of the seven justices were against granting a new trial. But the court was unanimous in its opinion that it is up to juries to decide if people are able to consent to sex, and the fact that someone is under a conservatorship doesn’t automatically mean they can’t consent.
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.
Kortner’s attorney, Burdett, said he disagreed with the court’s finding on the consent issue, but he 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.
Martise’s lawyer, Philip Russell, said he and Martise are disappointed with the high court’s decision, and he’s worried about Martise having to endure another trial.
“It’s devastating,” Russell said. “He’s a hardworking guy. He’s a solid citizen. And he’s worn this scarlet letter now for 11 years.”
The Associated Press and former Law Tribune senior writer Thomas B. Scheffey, now a freelance writer for the publication, contributed to this report.