Troubled Woman’s S&M Affair Supports Lawsuit

     (CN) – A Connecticut woman should have another chance to sue the man who carried on a sadomasochistic sexual relationship with her daughter, the state’s highest court ruled.
     Plagued by eating disorders, depression, obsessive compulsive disorder and borderline personality disorder, Kendall Kortner was 29 when she began living on her own in Stamford in 1999.
     Kendall did face some oversight by her aide and her mother, Mary, who was given a conservatorship over the young woman in 1994. Nevertheless she began an online relationship with Craig Martise after he sent her an instant message in 1994.
     For years, neither party exchanged last names, talked on the phone or met in real life. Martise also did not reveal that he was married with four children.
     They finally met in 2003 at Kendall’s apartment. Their relationship was platonic but eventually became sexual and then sadomasochistic.
     Mary Kortner noticed bruises on her daughter’s body and took her to the doctor who prescribed an end to the relationship with Martise.
     After Kendall filed a complaint against Martise with the Stamford Police Department, Mary sued him on her daughter’s behalf for civil assault, sexual battery and intentional infliction of emotional distress.
     During the trial, Kendall testified that she was thriving as a student at the University of North Carolina until she was victim of a gang rape during her sophomore year.
     She said her physical and mental health declined, and her weight dipped below 85 pounds.
     Kendall also suffered a stroke in 2001, making her more dependent on others for her daily needs.
     Martise meanwhile testified that Kendall “never said no.”
     “She said that all the kinky fooling around stuff that we’d ever done, she said that she had a lot of lost time to make up on,” according to a transcript provided by the court. “And you know, she wanted to experiment.”
     But Kendall said it was Martise who instructed her to tell him to stop if he was hurting her, using the code words “Fire truck.” She said Martise nevertheless ignored these words.
     “He just kept going,” Kendall said.
     Both parties produced experts to support their arguments on whether Kendall had the capacity to consent to a sexual relationship.
     Kendall’s attorney said the relationship included “tying her up, abusing her, hitting her with belts (and) burning wax on her.”
     When the jury ultimately favored Martise, Kortner asked for a new trial on the grounds that the jury should not have received “plaintiff’s exhibit 7,” which had not been admitted into evidence.
     Kendall died in 2010, but her mother continued to appeal in the role of executrix of her daughter’s estate.
     “Plaintiff’s exhibit 7” was a letter from Kendall to the XYZ Housing Authority, complaining that one of its employees had been subjecting her to unwanted sexual advances for two years.
     This behavior included “hugging, attempted kissing, getting into bed with me without my consent, inappropriate touching (and) conversing in a sexual nature.”
     The typewritten letter identifies the employee as “John Jones,” but Kortner alleged that the Martise is the letter’s true author.
     Neither side mentioned the letter during the trial, and one of the jurors expressed confusion about its inclusion with the evidence.
     Kortner said the letter was highly prejudicial because it dealt with the issue of whether Kendall was able to resist unwelcome sexual advances.
     The Connecticut Supreme Court ruled last week that the letter should not have been admitted into evidence and that Kortner is entitled to a new trial.
     “Plaintiff’s exhibit 7 was never received into evidence by the judge and never published to the jury. It is undisputed that plaintiff’s exhibit 7 was only premarked as a full exhibit, was never mentioned during the course of the trial and was never shown to the judge or jury during the course of the trial,” Justice Dennis Eveleigh wrote, with support from half of the seven-member court.
     The majority noted that the court clerk erred in handling the jury’s question about the letter.
     “The clerk took it upon himself or herself to respond to the jurors’ question about plaintiff’s exhibit 7 and to never alert the judge or the parties to the jurors’ concerns about the exhibit,” Eveleigh wrote.
     In a concurring opinion, Justice Richard Palmer said that Kortner had waived her claim that the letter was improperly submitted to the jury.
     “However, I believe that the court clerk’s failure to inform the court of the jurors’ concerns about exhibit 7 trumped counsel’s failure to take appropriate action to ensure that the exhibit was not submitted to the jury,” he wrote.
     Justice Andrew McDonald concurred and dissented in part.
     “I agree with the majority that a conservatorship may be relevant evidence of a conserved person’s capacity to consent to engage in intimate relationships, but is not proof in and of itself of a lack of capacity,” he wrote.
     Kortner should not receive a new trial, however, because the letter “could not have had even the most marginal effect on the jury’s deliberations,” McDonald said.
     Justice Christine Vertefeuille cited McDonald in a separate partial dissent.
     “Despite the plaintiff’s waiver of any objection to the submission of plaintiff’s exhibit 7 as a full exhibit to the jury, the subsequent failure of the court clerk to bring to the trial court the jury’s written note questioning the propriety of its consideration of plaintiff’s exhibit 7, together with the concession in this court by the defendant’s counsel that it should not have been submitted to the jury, rendered the admission of plaintiff’s exhibit 7 improper,” she wrote. “I further agree with Justice McDonald that we should nevertheless affirm the judgment of the trial court because, on the record as a whole, the admission of plaintiff’s exhibit 7 was harmless and the trial court properly denied the motion to set aside the verdict and for a new trial.”

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