Connecticut Supreme Court weighs whether severely mentally ill woman could consent to violent, sadomasochistic sex

Daily Mail: 

14 March 2013 |

The Connecticut Supreme Court is this week considering arguments over whether a severely mentally ill woman could have legally consented to violent, sadomasochistic sex.

Caroline Kendall Kortner began having sex with Greenwhich computer programmer Craig Martise when she was 32. Her mother found out when she noticed red marks and welts on her daughter's neck.

According to court documents, the relationship included Martise dragging Kortner by a leash and dog collar, slapping her with his hand and a belt, pinching and twisting body parts, tying and gagging her and dripping burning hot wax on her.

Prosecutors refused to charge Martise, but Mary Kortner sued in 2006. She claimed that a court had ruled Kendall Kortner incapable of making decisions for herself and that she could not consent to any sex - much less the kind of relationship she had with Martise.

While sadomasochism was glamorized in the popular 2011 book trilogy 'Fifty Shades of Grey,' the practice has long been on questionable legal ground.

 Some lawyers argue that no one can consent to being assaulted or abused during sex.

Appeal: Kendall Karson's mother Mary brought the case to the Supreme Court after a jury found that the sex was consensual

Others say established legal principles provide sexual rights to most people, including elderly people in nursing homes and the mentally ill.

There are few court rulings, however, dealing directly with BDSM, short for bondage, discipline, dominance/submission and sadomasochism.

Kendall Kortner had been diagnosed with clinical depression, borderline personality disorder, bulimia and anorexia. She tried to commit suicide twice and had a stroke in 2001 that left her partially paralyzed from the waist down and incontinent, court records say.

She weighed just 80 pounds and lived in an assisted-living facility, where she was learning to survive on her own.

In high school, she showed enormous promise and was accepted into Yale University and Trinity College in Hartford. Her college career, though, was soon derailed by her mental illness.

Kendall Kornter died of undisclosed causes in 2010.

Mary Kotner lost her case in 2009, when a state jury found in favor of Martise in 2009, concluding there was a sadomasochistic relationship but no proof that Kortner's daughter couldn't consent.

'This was a shocker to everybody who was watching it,' Kortner said. 'All the allegations were true. He was guilty.'

In 1994, a probate court had ruled her incapable of managing her own affairs during a period when she refused to eat and appointed her mother as her conservator.

Martise, 49, was never criminally charged. His lawyer, Philip Russell, said the relationship involved two consenting adults and there is no merit to any of Kortner's claims.

'It's like "Seinfeld." It's the case about nothing,' Russell said.

Russell accused Kortner of being upset at Martise, a married father of two, over his relationship with her daughter and trying to publicly embarrass him after losing the lawsuit and failing to persuade police to arrest Martise.

'This case is everything that's bad about the legal system,' Russell said.

Russell also said Kendall Kortner was a habitual liar who had made several unsubstantiated sexual assault claims against other men. Russell said she once appeared at a deposition in a wheelchair and neck brace, but surveillance video shows her later the same day walking happily around her neighborhood without the neck brace.

Kortner met Martise on the Internet and their physical relationship spanned several months in 2003, court documents say.

Mary Kortner alleges her daughter protested and objected to Martise's actions, but he continued the mistreatment. She said her daughter suffered physical injuries from the alleged abuse, and Mary Kortner once asked for a $500,000 judgment against Martise in the lawsuit.

Russell and other lawyers said they couldn't recall any legal precedents in the country on whether mentally ill people can consent to sex or sadomasochism. Russell said mentally ill or disabled people have the right to sexual activity under established legal principles.

But there are worries in the BDSM community about facing criminal charges because common law says people can't consent to abuse, said Valerie White, executive director of the Sexual Freedom Legal Defense and Education Fund in Sharon, Massachusetts.

'You have to be very, very careful,' she said.

In 2000, police in Attleboro, Massachusetts, arrested two people on assault and other charges during a raid of a sadomasochistic sex party and seized paddles, whips, chains and other paraphernalia. But a judge later threw out the evidence and dismissed most of the charges because police didn't have the right to enter the premises.

In 2010, the U.S. Supreme Court reinstated sex-trafficking and forced labor convictions against a New York man dubbed the 'S&M Svengali.' But the court's ruling addressed technicalities and not the practice of S&M. The man, Glenn Marcus, was sentenced to nine years in prison for abusing a woman he photographed for his website dedicated to sadomasochism.