But is that what sex is? A contract between two people to mutually fornicate?
"I believe that in a case such as this the law does go there to protect people from extreme sexual behavior," says Burdett.
Philip Russell, the attorney who has now twice defended Craig Martise, doesn't mince words when asked about Burdett's argument; he called it "bullshit."
"If you are hanging out in a nightclub in downtown Hartford tonight and you get close to someone and she wants to take you home, are you obligated to ask, 'Are you under a conservatorship?' No you aren't," says Russell, adding, "Mr. Martise did not force himself on Kendall Kortner. They had some sexual encounters and there was some kinky stuff. That's it. That's what the police concluded. That's what I argued [in 2009], and I won."
The state Supreme Court hasn't ruled yet in the case of Kortner v. Martise, but judging by its verdict when it considered a similar set of issues just last year, the plaintiff has an uphill battle.
In State v. Fourtin, the court overturned the conviction of Richard Fourtin Jr., a Bridgeport man who allegedly sexually assaulted a woman with severe cerebral palsy. The alleged victim cannot communicate verbally and has motion only in one index finger, but the court ruled that she was capable of "biting, kicking, scratching, screeching, groaning or gesturing" to indicate she didn't want to have sex with Fourtin. Furthermore, only if a person is "unconscious" or otherwise "physically unable to communicate unwillingness to an act" is lack of consent assumed.
Once sentenced to six years in prison, Fourtin was set free. The response from the blogosphere was outrage. A headline on the examiner.com announced that the court had released an "alleged rapist because victim did not fight back enough" and The Daily Kos accused the court of joining the "war on women." In response to State v. Fourtin, the General Assembly is now considering a bill to strengthen sexual assault statutes when it comes to victims with disabilities.
Bethany Stevens, a sexologist with a juris doctorate and a self-described "crip" with her own mobility issues, says, "It's important not to paint disabilities with too broad a brush when making laws and even more important to involve people with disabilities."
Stevens, also a professor in public health at Georgia State University, says that "too often people with disabilities are treated or considered nonsexual. 'Special education' tracts often don't include sex ed, and we are socialized differently. The issue extends to consent, and sometimes we are denied our sexual agency. I have heard doctors say that certain disabilities mean you cannot consent to sex. It's nonsense. It's fiction, but it's pervasive … Cerebral palsy doesn't make someone nonsexual, and neither does something like Down syndrome. Sexuality is a part of being human."
She says there is no single way to consider the issue of consent because the range of disabilities, both mental and physical is so broad, but says it's important to engage the individual on what he or she wants.
As for conservatorship, Stevens says, "I would hope someone under conservatorship could talk with their conservator. It should be more of a committee than allowing another person to be CEO of your sex life."