Court to decide if mentally ill can consent to sadomasochistic sex
HARTFORD, Conn. (AP) - 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.
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.
"... Come on baby, make it hurt so good.
Sometimes love don't feel like it should.
You make it hurt so good.  ... "
More government intrusion into every corner of our lives. I find it somewhat humorous that the same people that want to rule on every aspect of our lives are some of the kinkiest motor scooters around.Â
It's too bad though that there are so many users out there without a conscious and will take advantage of people that are struggling with so much mental strife.
You got to be a little wacked in the head to even be turned on and enjoy sadomasochism. Just my opinion.
i'll go out on a limb here and disagee with the previous posters and "likers". From the article alone, since i have no other basis of opinion, i would agree with the mother.  Mental illness leads to decisions made, that that person would not make in the absence of the illness.  sort of like the intoxicated or drugged -out person who decides to be a party to some other form of violence.Â
@jennieb ... Having any illness at all causes you to make decisions you wouldn't make in absence of that illness. When I used to smoke cigarettes and I had bronchitis, my choices about smoking changed as a consequence of the side effect of the illness. Your choices being different because of any illness doesn't necessarily mean you cannot make those choices, or that you will or will not regret them later. In fact, one of the peculiarities of this case is the specific main mental health disorder involved, Borderline Personality Disorder. One of the things about Borderline Personality Disorder is that those with it often don't care about "the rules" and will steal, lie, fight, do drugs, and have sex, because they feel like it. And they won't particularly care about it being "wrong" because in their minds that does not apply to them. Their concern for the consequences will most likely be a simple desire to avoid the inconvenience of a punishment, and they will be able to see and predict the various consequences of an action like having sex with a stranger or getting into a weird relationship. One day they might think you are the most awesome person on the planet, and the next day they might think you were the worst scum alive, and their views of others and the world are greatly dependent on the views expressed by those around them. If you wanted to boil BPD down to two words, those words would be 'moody', and 'impulsive'. What that means is that her life and her feelings were almost certainly turbulent and unsettled and she suffered from numerous problems. What that does NOT mean is that she did not have the ability to predict the consequences of her behavior (kids, smoking, a desire to raid the fridge, STD's), and decide to press on with her actions anyway. Nor was her mother able to prove otherwise.
@spacegoddess @jennieb thanks for the feedback. pretty complicated stuff to my mind.
I'd like to point out that Borderline Personality Disorder itself puts the person who has it at risk of engaging in risky sexual behavior and making poor choices overall, as well as abuse of drugs and suicide attempts. But it's not one of the mental illnesses that impacts a person's intelligence. Nothing she is supposed to be suffering from renders her incapable of consenting to sexual activity. With that being said, however, if you are thinking of engaging in BDSM activities with someone, you might try looking into their mental health first and choosing partners who do not have substantial mental health problems (as BPD can be quite serious). The risk of prosecution goes up when you choose to have sex with someone who has conditions like that, especially when you engage in kinkier activities, even though what two or more consenting adults do in private should be no ones' business but their own. Really, I feel offended that this woman decided to drag her dead daughter's name, mental illness history, and information about her perfectly legal sex life out into the open in order to try to shame someone else.
@spacegoddess Agree 100%.  Pretty pathetic on the mother's part.
Sounds like mom is a little grumpy that her now deceased daughter was a kinky little filly. She also sounds like she's a little whacked in the melon too, and trying to get at this guy any way she can. Although BDSM isn't MY particular cup of hot wax, the courts getting involved in what people can and can't do in the privacy of their own bedroom is very disturbing.
Why did this woman know about her thirty year old daughter's sexual exploits? If she really had a problem with it she could have stopped seeing him or approached the wife of the man and disclosed what was happening. Based on the facts in the story, the woman who was allegedly abused seems to have gotten off on self-punishment long before she met this man.
Ya, sexually exploiting the mentally ill:Â "It's like 'Seinfeld.' It's the case about nothing," Russell said, referring to TV show famously labeled as being about nothing." Where do these people come from....yet another reason to hate lawyers.Â