One of the questions I deliberately side-stepped while ranting about the fiasco that was the media coverage of the Connecticut Supreme Court’s decision in State v. Fourtin, back in October, was the question of whether people who are disabled and mentally ill can legally have the capacity to consent.
Some of the arguments seemed to indicate that people in the position of the complainant in Fourtin – people with physical and/or mental disabilities – are never able to consent and thus any sexual encounters with them are perforce illegal. I expressed some misgivings at the time and I still do: I think that love and sex are two fundamental aspects of what make us human and just because someone has a mental illness or a physical handicap doesn’t mean that we, as whole and able bodied beings, have the right to legislate away their right to be happy.
1. Whether the trial court properly let a jury decide whether a woman with mental illnesses could consent to BDSM-type sexual encounters.
2. Whether anyone can consent to BDSM-type sexual encounters.
Essentially what happened is this: there was a woman named Caroline Kortner, who, when she was 24 in 1994 was deemed to be incompetent by a probate court and her mother Mary Kortner was appointed her conservator. Sometime in 2003, she met Martise and the two of them started a relationship that involved BDSM:
the relationship included Martise dragging her daughter by a leash and dog collar, slapping her with his hand and a belt, pinching and twisting body parts, tying and gagging her and dripping burning hot wax on her. [The jury in Stamford ruled there was no proof to the dragging and pinching allegations.]
Some other, more “benign” acts alleged were: slapping her buttocks with his hand and belt during intercourse, dressing her in a crotchless black stocking and cat’s mask (?!), and “repeatedly” showing her pornographic pictures and videos. Mary Kortner was appointed conservator because:
In 1994, a probate court had ruled her incapable of managing her own affairs during a period when she refused to eat.
She had other problems as well:
[She] had been diagnosed with clinical depression, borderline personality disorder, bulimia and anorexia, and she tried to commit suicide twice, according to court documents. She also had a stroke in 2001 that left her partially paralyzed from the waist down and incontinent, court records say.
In 2006, the mother sued Martise, alleging the torts of sexual battery, assault and battery and intentional infliction of emotional harm, seeking $500,000 in damages because she claimed that he had abused her daughter and that because of her daughter’s mental and physical condition, she couldn’t consent to anything. Martise responded that Caroline was an adult woman and could, indeed, consent to sexual activity.
The mother then argued to the judge that because of the conservatorship, Caroline couldn’t legally consent and therefore whether she actually consented was not a question for any jury to determine. The trial court disagreed and let the jury decide whether Caroline had indeed consented. They found that she had and thus, did not render verdict in the mother’s favor. Here [PDF] are the questions posed to the jury and their responses.
[At this juncture, it's important to note that this was not a criminal trial. I don't think Martise was charged with a crime. This was a civil trial, a lawsuit filed by the mother against Martise seeking money.]
So this presents an opportunity for an intellectual exercise on the first question and a clear, unequivocal rant on the second question. Can someone be so mentally ill or physically disabled that they cannot, by operation of law, consent to an act? I think the answer has to be yes. There has to be a line at which we say that no consent is knowingly given. But that line, I think, must depend on individual circumstances. And so, by default, the inquiry must be fact-specific.
A jury must determine whether a person with a disability: 1) has, in fact, consented; 2) if they have consented, how intelligent was that consent: in other words, was that consent given with an understanding of the consequences of that consent and a willing participation in the actions that followed that consent.
In that sense, consent given by someone with a mental illness is no different than determining whether someone without a mental illness has consented. The reason, I suspect, why there can’t be a bright line “anyone with mental illness cannot consent” rule is that such a rule would cover well over 70% of the population1 of the United States. It’s got to be on a case-by-case basis. The court may well rule that the conservatorship is a factor to be considered in determining whether the person has the ability to consent and whether consent was actually given, but it won’t be the whole shebang.
As to question number two, which is phrased thusly in the summary: “The plaintiff also argues that, as a matter of public policy, one cannot be deemed to have consented to sexual abuse and degradation.” let me simply say this: get. the. fuck. out. of. my. bedroom.
If I want to whip a consenting adult in my bedroom, it’s none of your damn business. If i want to be tied up and made to squeal like a pig while my lover attaches electrified nipple clamps to my nipples because I like it, I’m going to do it and it’s none of your damn business. If I want to have sex while my lover reads transcripts of my worst moments in court and calls me a public pretender and rules that I provide ineffective assistance of counsel, it’s none of your damn business.
Just because you don’t get off doesn’t mean you get to tell me how I can’t get off. Or you can, but only if I like that sort of thing.
1Not a scientific stat, but based purely on personal experience. You people are fucking nuts.