Become a digitalPLUS subscriber. 99ΒΆ for 4 weeks.

A Lawsuit Could Test the Limits of the Rights of the Disabled in the Bedroom

Caroline Kendall Kortner led a brief and often hellish life.

Born in 1970, Kendall, as she was called, lived out her childhood in the Cos Cob neighborhood of Greenwich. When she was eight, a neighborhood boy began sexually molesting her. Soon after, she began showing many signs of a variety of mental illnesses. She was purging her food and copying pages of the phone book, name by name, starting over again if she got one wrong. Her diagnoses over the years included depression, anorexia, bulimia, obsessive compulsive disorder and borderline personality disorder. She was institutionalized at the Institute of Living in Hartford and Fairfield Hills State Hospital in Newtown, according to a history collected for a court case.

Kendall got good grades (her OCD ensured that) and was accepted to Yale and Trinity. Eventually, she matriculated to the University of North Carolina, where she was allowed her own apartment because no roommate would be able tolerate her constant purging. A few months later, she was raped by a gang of fraternity boys.

Kendall's last chance to become an independent woman was spent. She moved to Stamford, was put under the conservatorship of her mother, Mary Kortner, and lived the rest of her days in hospitals and assisted living facilities. The physical effects of bulimia took their toll. Her weight fluctuated between 60 and 100 pounds. She suffered a stroke at 31 and struggled for months to regain mobility. From then on, she was incontinent, walked with a walker and suffered from open sores down her legs. Sometimes she had to wear a neck brace just to keep her head up. She went through catatonic periods and twice attempted suicide.

One of Kendall's few outlets was her computer. She set up an AOL account and began a correspondence with Craig Martise, a married father of four, also from Greenwich. They met in the real world and began a physical relationship, one that included many aspects of bondage/discipline, domination/submission, and sadism/masochism (BDSM). Their trysts are now at the center of a case that is putting the issues of disabilities, consent and sexual freedom before the Connecticut Supreme Court once again.

In August of 2003, Mary Kortner noticed unusual marks on her daughter's body, which led to Kendall telling her about the sadomasochistic activities. According to court documents Kendall told her that Martise put clamps on her nipples, gagged her with a scarf, dripped hot wax on her, dressed her in a crotch-less body stocking and cat mask and lead her around on all fours with a leash.

Mary Kortner called police, but the Stamford Police Department decided the activities were consensual and declined to press charges.

So in 2009, Mary Kortner, using the power of conservatorship (which gives her control of her daughter's legal affairs) sued Martise.

The trial had its odd moments. Martise provided a transcript of an AOL chat supposedly between himself and Kendall that suggested Kendall objected to her mother's litigiousness. The Kortners' attorney Christopher Burdett challenged it as a fake and Martise was later arrested on charges of perjury and tampering with or fabricating evidence.

Meanwhile, Burdett insisted Kendall could only be deposed for 45 minutes at a time because of her weak condition. But the defense offered footage it had obtained of Kendall walking around later that day. (Burdett said it was insignificant; he never denied that Kendall could move about with the help of a walker.)

But he did insist that "Kendall's doctors felt the trial could kill her, and we all knew she was nearing the end of her life."

He recalls a day when the elevator was broken in his office building and he carried Kendall Kortner up the stairs. "She was like a bag of bones," he says. "Her body was like that of a Rwandan refugee or a Holocaust survivor."

The jury decided Martise was innocent.

Shortly after, the long-suffering Kendall Kortner passed away at age 39. The family declined to have an autopsy done, but Burdett says they suspect her heart gave out.

The BDSM community has a motto for the ethical practice of its dark-seeming and exotic ways: safe, sane and consensual. Rough, kinky sex with someone as mentally and physically frail as Kendall Kortner is described as having been is probably not either of the first two. Lack of consent, however, has to be argued to a high threshold in a court of law.

At the center of Mary Kortner's lawsuit, which was before the state Supreme Court last month, are two tricky notions.

The first is "that, as a matter of public policy, one cannot be deemed to have consented to sexual abuse and degradation," in the words of the summary. Though also enjoyed by countless kinksters across the globe, Burdett says the set of sexual practices Martise introduced to Kendall are abusive.

"If you're slapped during foreplay, does it hurt any less than being slapped at any other time?" asks Burdett. "I don't give a damn what people do in their bedrooms, but when that behavior has the potential to cause physical or psychological harm, the fact that it happened within the course of sex doesn't matter. You do not have the right to cause someone injury during sexual intercourse."

The second is that "Kendall was incompetent and therefore incapable of consenting to sexual conduct." Burdett doesn't deny that the logical extension of that notion would be that anyone under conservatorship — like an adult with a developmental disability or an elderly person with Alzheimers — could not have sex with another person without seeking the permission of their conservator (which would no doubt be awkward).

He points out that contracts signed by someone under conservatorship are void. Such a person can't get married or take out a loan without the permission of the conservator. "If you're a car salesman and you finance a car to someone under conservatorship and that person decides to never pay you and drive the car into the river, sad day for you: The contract was void."

But is that what sex is? A contract between two people to mutually fornicate?

"I believe that in a case such as this the law does go there to protect people from extreme sexual behavior," says Burdett.

Philip Russell, the attorney who has now twice defended Craig Martise, doesn't mince words when asked about Burdett's argument; he called it "bullshit."

"If you are hanging out in a nightclub in downtown Hartford tonight and you get close to someone and she wants to take you home, are you obligated to ask, 'Are you under a conservatorship?' No you aren't," says Russell, adding, "Mr. Martise did not force himself on Kendall Kortner. They had some sexual encounters and there was some kinky stuff. That's it. That's what the police concluded. That's what I argued [in 2009], and I won."

The state Supreme Court hasn't ruled yet in the case of Kortner v. Martise, but judging by its verdict when it considered a similar set of issues just last year, the plaintiff has an uphill battle.

In State v. Fourtin, the court overturned the conviction of Richard Fourtin Jr., a Bridgeport man who allegedly sexually assaulted a woman with severe cerebral palsy. The alleged victim cannot communicate verbally and has motion only in one index finger, but the court ruled that she was capable of "biting, kicking, scratching, screeching, groaning or gesturing" to indicate she didn't want to have sex with Fourtin. Furthermore, only if a person is "unconscious" or otherwise "physically unable to communicate unwillingness to an act" is lack of consent assumed.

Once sentenced to six years in prison, Fourtin was set free. The response from the blogosphere was outrage. A headline on the announced that the court had released an "alleged rapist because victim did not fight back enough" and The Daily Kos accused the court of joining the "war on women." In response to State v. Fourtin, the General Assembly is now considering a bill to strengthen sexual assault statutes when it comes to victims with disabilities.

Bethany Stevens, a sexologist with a juris doctorate and a self-described "crip" with her own mobility issues, says, "It's important not to paint disabilities with too broad a brush when making laws and even more important to involve people with disabilities."

Stevens, also a professor in public health at Georgia State University, says that "too often people with disabilities are treated or considered nonsexual. 'Special education' tracts often don't include sex ed, and we are socialized differently. The issue extends to consent, and sometimes we are denied our sexual agency. I have heard doctors say that certain disabilities mean you cannot consent to sex. It's nonsense. It's fiction, but it's pervasive … Cerebral palsy doesn't make someone nonsexual, and neither does something like Down syndrome. Sexuality is a part of being human."

She says there is no single way to consider the issue of consent because the range of disabilities, both mental and physical is so broad, but says it's important to engage the individual on what he or she wants.

As for conservatorship, Stevens says, "I would hope someone under conservatorship could talk with their conservator. It should be more of a committee than allowing another person to be CEO of your sex life."

Copyright © 2014, The Baltimore Sun