A few weeks ago, I participated in a conversation on HuffPost Live about a mother suing a man for conducting a sadomasochistic relationship with her daughter, who was mentally ill. You can see the segment here.
This week, the mother’s attorney, Chris Burdett emailed me with additional information and a different perspective on the discussion. I offered to post his views on this website. He allowed me post a letter he addressed to the host Mike Sachs.
Here is Mr. Burdett’s letter:
Mike:
I’m the attorney who has been representing Mary Kortner, who first as conservator of her daughter, Kendall, and more recently as administratrix of Kendall’s estate, has been pursuing a lawsuit in Connecticut against Craig Martise for sexual assault and battery, intentional infliction of emotional harm, and related claims.
I just watched the Huff Post Live broadcast regarding the case which apparently was broadcast on March 12, the day before we argued the case before the Connecticut Supreme Court. I compliment you on the way you moderated the discussion – it was quite fair, and your questions were intelligent, insightful and thought-provoking. Unfortunately, however, there was a good deal which the panelists either assumed incorrectly or simply didn’t understand.
I should start by saying that in over 44 years of practicing law, this is by far the most disturbing case I’ve ever seen. It’s never been about whether “mentally ill” persons can consent to sex or to sadomasochistic sex. Rather, the claim has always been that persons under a conservatorship cannot consent to such contact, behavior or abuse. As you may know, under an 1885 Supreme Court decision, conserved persons cannot enter into contracts, and any such purported contracts are not merely voidable but void. Further, under Connecticut statutes, conserved persons cannot marry without the written consent of their conservator, and in the absence of such consent no legal rights accrue to the other party to the purported marriage. It has always been my argument that it’s not a stretch to apply the same rule to sexual contact as we do to contracts and marriage.
Perhaps the most significant point was missed during the discussion is that this was never a suit brought by a mother just seeking revenge. Mrs. Kortner brought the suit on Kendall’s behalf, solely in her capacity as Kendall’s conservator, and she intentionally did not assert any claims on her own behalf. And the suit as brought to recover damages to pay for the extensive additional psychological treatment that Kendall needed, and would probably continue to need throughout here lifetime, because of the harm and damage Martise had caused her.
In addition, the conduct complained of occurred in 2003, the suit was commenced in 2006, Kendall gave a deposition over parts of seven days in 2008 and 2009, the trial took place late in 2009, and Kendall died in March of 2010. Kendall testified at the trial, as did the psychologist who had treated her for 15 years. He testified that Kendall had the emotional and psychological development of a pre-adolescent, and that she absolutely could not consent to what Martise did.
There are other interesting facets to the case. For instance, I carefully selected a jury comprised of two women and four men, but during the 4-week trial both women had personal emergencies and had to be excused, leaving a jury of six men to decide the case. I talked with all six members after the trial, and I can tell you that they were all troubled by their verdict and at least three now believe that they reached the wrong decision. I could go on and on – but I’m sure you get the point.
If you’d like, I can send you the briefs, which set out the facts in great detail, and if you’re ever interested, I’d be happy to discuss the case with you.
Sincerely,
Chris
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I thank Mr. Burdett for reaching out to set forth his point of view and to engage in a thoughtful discussion of this important case.
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