Published March 09, 2013
HARTFORD, Conn. – Can mentally ill people consent to sadomasochistic sex? Can anyone consent to abusive and degrading sexual acts?
Connecticut's highest court has decided to take up those questions in the case of a Greenwich woman suing a man she alleges had an abusive sexual relationship with her daughter, who had multiple mental and physical ailments. Arguments before the state Supreme Court are scheduled for Wednesday.
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 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 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.
In the Connecticut case, Mary Kortner sued fellow Greenwich resident Craig Martise in 2006, saying her daughter could not have consented to sadomasochistic and abusive sex acts with him because of her mental state. A state jury, however, 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."
Caroline Kendall Kortner, who died in 2010 at age 39 from an undisclosed illness, had been diagnosed with clinical depression, borderline personality disorder, bulimia and anorexia, and she tried to commit suicide twice, according to court documents. She also had a stroke in 2001 that left her partially paralyzed from the waist down and incontinent, court records say.
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, referring to TV show famously labeled as being about nothing.
Russell accused Kortner of being upset at Martise 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 Caroline 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.
Caroline Kortner, known as Kendall, met Martise, a married man with children, on the Internet and their physical relationship spanned several months in 2003, court documents say.
According to Mary Kortner's lawsuit, the relationship included Martise dragging her daughter 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. The jury in Stamford ruled there was no proof to the dragging and pinching allegations.
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, Mass.
"You have to be very, very careful," she said.
In 2000, police in Attleboro, Mass., 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.