By DAVE COLLINS
People don't necessarily give up their ability to consent to sex — including sadomasochistic encounters — when placed under the legal conservatorship of others because they are considered unable to handle their affairs, the Connecticut Supreme Court ruled Monday.
Lawyers in the case had said they couldn't recall any legal precedents in the country on whether mentally ill and disabled people can consent to sex or sadomasochism.
The state high court's decision came in the case of Greenwich resident Mary Kortner, who filed a sexual battery and assault lawsuit in 2006 on behalf of her now-dead daughter against fellow Greenwich resident and corporate executive Craig Martise.
Kortner said her daughter, who was mentally ill and partially paralyzed from a stroke in 2001, wasn't able to consent to the sadomasochistic sexual relationship she had with Martise over several months in 2003. But a jury determined in 2009 that Kortner's daughter, Caroline Kendall Kortner, was able to consent and found in favor of Martise, a married father of four who was never criminally charged.
Kortner, whose daughter died in 2010 at age 39 from an undisclosed illness, appealed.
The state Supreme Court granted Kortner a new trial on a technicality, saying a letter her daughter purportedly wrote in 2003 about unwanted sexual advances by another man was mistakenly given to the jury for deliberations despite not having been properly admitted into evidence.
Two of the seven justices were against granting a new trial. But the court was unanimous in its opinion that it is up to juries to decide if people are able to consent to sex, and the fact that someone is under a conservatorship doesn't automatically mean they can't consent.
While sadomasochism was glamorized in the popular 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 the elderly in nursing homes and the mentally ill.
Messages seeking comment were left Monday for Kortner and Martise.
Kortner's attorney, Christopher Burdett, said he disagreed with the court's finding on the consent issue, but he looked forward to a new trial.
"The fact remains that Craig Martise did something absolutely horrendous to Kendall Kortner and probably destroyed the last few years of her life, and he should answer for that," Burdett said.
Martise's lawyer, Philip Russell, said he and Martise are disappointed with the high court's decision, and he's worried about Martise having to endure another trial.
"It's devastating," Russell said. "He's a hardworking guy. He's a solid citizen. And he's worn this scarlet letter now for 11 years."
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