MARY H. KORTNER, AS CONSERVATOR OF THE PERSON OF CAROLINE KENDALL KORTNER v. CRAIG L. MARTISE, SC 18793

Judicial District of Stamford/Norwalk at Stamford

 

      Torts; Conservatorship; Whether a Conserved Person has the Capacity to Consent to a Sadomasochistic Sexual Relationship. The plaintiff is the mother of Kendall Kortner, who died shortly after the trial in this case concluded.  The plaintiff was appointed the conservator of her daughter's person in 1994, when Kendall was twenty-four.  She brought this action in her capacity as conservator, alleging that the defendant was liable for sexual battery, civil assault and intentional infliction of emotional distress.  The plaintiff alleged that the defendant, a man that Kendall met on the Internet, had engaged in a degrading sadomasochistic sexual relationship with her adult daughter.  Central to the plaintiff's claims was the allegation that, due to Kendall's mental disabilities—including clinical depression, borderline personality disorder, bulimia and anorexia—she was unable to consent to what the plaintiff characterized as the defendant's mistreatment and abuse.  The defendant asserted as a special defense that Kendall was an adult capable of making intelligent choices in matters relating to sex and that she had consented to any sexual contact she had with him.  The plaintiff moved to strike the consent defense and to preclude the defendant from raising the issue of consent at trial.  The trial court denied her motions, ruling that Kendall's conserved status did not preclude the defendant from presenting evidence of consent and that it should be left to the jury to determine whether Kendall had the ability to consent.  The jury returned a verdict for the defendant, indicating, by way of its responses to interrogatories, that, while the defendant had in fact engaged in a sadomasochistic sexual relationship with Kendall, the plaintiff had failed to prove that Kendall did not have the capacity to consent to the sex acts.  The plaintiff appeals from the judgment on the jury's verdict, claiming that the trial court wrongly permitted the issue of consent to reach the jury because the probate court's appointment of the plaintiff as the conservator of Kendall's person constituted a judicial determination that Kendall was incompetent and therefore incapable of consenting to sexual conduct.  The plaintiff also argues that, as a matter of public policy, one cannot be deemed to have consented to sexual abuse and degradation.