A jury this week awarded a Connecticut mother more than $630,000, after she said a man abused her mentally ill daughter in a sadomasochistic sexual relationship to which her daughter was unable to consent.
The verdict is the latest twist in an 11-year case that has made national headlines and splintered the legal world.
When she started a sexual relationship with Craig Martise, Caroline “Kendall” Kortner had suffered a stroke, and had been in the care of doctors for years. Her relationship with Martise evolved to include the use of hot wax and whipping; it was also alleged that she was dragged on a leash. At the time, Martise was a married father of four, a corporate executive living in the wealthy Connecticut town of Greenwich.
The case was a juxtaposition of the extreme and the perplexing. Juries in two trials – with opposing outcomes – were asked to consider evidence including a black-lace, crotchless body stocking. They were also asked to weigh in on questions that have divided the legal world for years.
Can adults consent to sadomasochistic sex? Some argue such acts are tantamount to consent to abuse. Can a person with mental health problems consent to sex? What about someone who is under another’s care, such as under Connecticut’s conservatorship laws? And can a person’s guardian bring suit on their behalf?
“Is it liberty or is it exploitation?” Kirk Lowry, legal director of the Connecticut Legal Rights Project, a nonprofit that advocates for mentally ill clients, told the Guardian. “I could go both ways.”
“The factual issue is, did she [Kortner] have capacity to give consent? Her treating doctor and her mom said she didn’t, and another doc [hired by the defense], said she did.”
Kendall Kortner’s mother, Mary Kortner, discovered the relationship in August 2003. She notified police. Kendall Kortner’s psychologist told her to stop seeing Martise, though police did not charge him. Mary Kortner took Martise to court on her daughter’s behalf, claiming her daughter was too mentally ill to consent.
At the time that Mary Kortner brought the case, Kendall Kortner used a walker and was heavily medicated with powerful painkillers such as Fentanyl. She had been given diagnoses of eating and personality disorders and her personal matters were controlled by her mother.
A straight-A student in high school who participated in several service clubs, Kendall Kortner was a swimmer and runner before college, after which she testified to dropping to as little as 55lbs as a result of eating disorders. Though her long-time psychologist argued that she was not capable of making rational decisions, a deposition taken a year before she died, of an undisclosed disease in 2010, revealed a lucid 38-year-old woman who enjoyed reading and Sex and the City.
The Connecticut supreme court declined to tackle several questions raised by the case. Justices were asked to draw a “bright line” on when a mentally and physically disabled person can consent to sex. Instead, they simply said that being another’s ward does not necessarily place sexual freedom under the purview of the guardian.
Justices also declined to rule on whether Kendall Kortner’s mother could bring suit on her behalf. Instead, they ruled that because Kendall Kortner died at 39, and her mother was acting on behalf of her estate, the question was moot.
The case was kicked down to its latest jury trial on a technicality – an all-male jury which ruled on Martise’s behalf in 2009 received a piece of evidence that was determined to be prejudicial.
Mary Kortner’s attorney, Christopher Burdett, said he believed the most recent decision turned in his favor because four women added perspective to the jury.
“I wanted the court to establish the same kind of bright-line test for a severely mentally and physically handicapped woman,” Burdett told the Guardian.
“I think if people want to spank each other when they’re having sex that’s their business. If people want to whip each other with a horse whip or a belt to the point that it causes physical injury, I don’t think that should be permitted.”
But even Burdett declined to say when a person with diagnosed psychological disorders should be able to consent.
“‘Don’t ask me where to tell you where to draw the line’,” Burdett said he told the state supreme court. “There is a point where you must draw the line, and this case is way beyond it.”
Martise’s attorney could not be reached for comment. On Tuesday, Philip Russell told the Associated Press he would ask the judge to overturn or reduce the award, and would then consider an appeal to a higher court.
