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Sword and Shield

When does protection for the victim become a weapon against the defendant? Ask Oliver Jovanovic, whose overturned conviction tests the limits of the so-called Rape Shield.

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A studied disorganization suffuses the clutter in the Washington Heights home where Oliver Jovanovic grew up; it's like a rarefied cocoon of West Side culture. Major chess awards and photographs of Oliver and his brother, Adrian -- their father is the chess coach at Dalton -- playing such notables as former New York City mayor Abraham Beame line the foyer and various rooms of their parents' labyrinthine apartment, along with similar testimonials to their mother's career as first violinist for the New York City Ballet orchestra.

Jovanovic's appearance seems of a piece with the surroundings. Indeed, the grad-student manner, tousled walnut hair, and boyish, crooked-tooth smile all suggest someone other than the Columbia "cybersex fiend," the phrase attached to the doctoral candidate's name in the tabloids for more than three years.

On December 21, the Appellate Division of the New York State Supreme Court freed him after he'd spent twenty months in prison for the kidnapping and sexual torture of a Barnard student ten years his junior. The panel concluded that trial judge William Wetzel had "improperly hampered defendant's ability to present a defense" by overzealously invoking the rape-shield law to deny the jury access to key evidence -- in particular, explicit e-mails between Jovanovic and his accuser that were full of references to everything from sadomasochistic sex to snuff films and rape.

While the e-mail between the two was quoted extensively during the trial, it was edited specifically to eliminate what the prosecutors argued were references to the victim's prior sexual encounters, even though those encounters included her description of herself as "a pushy bottom" -- S&M slang for a submissive partner who demands to be taken to higher levels of pain. Another e-mail detailed a sadomasochistic encounter with the man she refers to as her boyfriend; in it, she calls herself his sex "slave."

But it isn't just the e-mails that the jury didn't get in full detail. Jovanovic's lawyer, Jack Litman, says that shortly before their encounter Oliver and the victim "had a four-and-a-half-hour telephone conversation about sexual preferences and the like; the judge wouldn't allow any of that, either." Medical testimony from one of the doctors who examined the victim for the prosecution, heard in closed court sessions from which the jury was excluded, was not allowed in the record although it undermined the claims of prolonged sexual assault.

" 'It's as if common sense doesn't play any role in the legal system,' Jovanovic says, adding that at least half the evidence was delivered in a closed courtroom and kept from the jury."

Four days after the alleged November 22, 1996, incident, Dr. Chin Quee at Barnard College Health & Counseling Services examined the young woman, noting several fading bruises on her breasts and shoulder, and tenderness of the rectum. But Dr. Quee found no scratches or abrasions in the vaginal or anal areas, no bruises or burn marks, no teeth marks on or tenderness of the woman's nipples, which she claimed had been bitten to the point of drawing blood. Eleven days after Jovanovic's December 5 arrest, Dr. Jacques Moritz performed a second examination. He, too, found no evidence of the kind of sustained assault Jovanovic was charged with. Yet Judge Wetzel excluded Moritz's testimony.

A legal expert close to the case explains that Judge Wetzel's interpretation of the rape-shield law resulted in subsequent exclusions of secondary pieces of evidence because he saw them as defense efforts to to circumvent the shield. Indeed, during the trial, the judge admonished the defense for revisiting "these rulings two, three, four times a day." In their brief to the appeals panel, the prosecutors argued that the portions edited out of the e-mails "were not reality" and pleaded with the panel not to "allow defendant to inject prejudicial evidence of prior sexual conduct into the case."

Of course, the appeals panel did not find Oliver Jovanovic innocent. It ruled that Judge Wetzel misapplied the rape shield, in the end denying due process to Jovanovic, whose defense was based on the assertion that no attack took place. He didn't testify at the trial, he says, because he wouldn't have been allowed to give his version of what happened from the beginning of the e-mail relationship. That fear was resoundingly supported by the appeals panel: "The erroneous ruling in effect gutted Jovanovic's right to testify fully in his own defense," the judges ruled, "since it prohibited him from offering the jury any evidence justifying an asserted belief that the complainant had indicated a desire to participate in sadomasochism with him." No one from District Attorney Robert M. Morgenthau's office responded to repeated requests for comment on the case or the ruling.

After the reversal, feminists argued that e-mails suggesting a willingness to experiment with sadomasochism are irrelevant, since the victim claims to have withdrawn consent for further sexual activity. The judges responded, however (with one partial dissent), that the e-mails would have played a larger part in Jovanovic's defense than merely offering evidence of prior activity: They also could have helped establish "the defense that the complainant concocted her accusation in order to explain to her boyfriend either her failure to meet him that night, or her participation in sadomasochism with another man."

A long narrative in one of the victim's e-mails to Jovanovic, recounting a story of a sadistic sexual encounter in which the boyfriend was tied up and raped, was, the judges ruled, "highly relevant to the attempted defense that the claim of attack was concocted, particularly in view of the similarity between that narrative and Jovanovic's complained-of conduct on the night in question."

"It's as if common sense doesn't play any role in the legal system," Jovanovic says, adding that at least half the total evidence was delivered in a closed courtroom and ultimately kept from the jury, portions he argues would underscore the inconsistencies in his accuser's story. She had told detectives, for instance, that the candles Jovanovic used to burn her were red, and then testified that they were white at trial. The judge, additionally, would not allow demonstrations showing that candle wax does not get hot enough to burn the skin.

Although the accuser refused to be interviewed, her mother told us that "my daughter's a philosopher," not a practitioner, and that she explored different lifestyles on an intellectual level but had no real interest in Jovanovic's world of sadomasochism. "I feel bad for him having to be in prison," the victim's mother said before the conviction was overturned. "I don't think he was evil from his heart." After the reversal, however, her position hardened. "As far as I'm concerned," she said bitterly, "he got a get-out-of-jail-free card." She believes Oliver Jovanovic should be in a mental hospital.

If there is a retrial -- and the district attorney's office has begun the process of seeking one -- Jovanovic may finally get to tell his story. He admits he is a different person than he was before his arrest. "Back then, I thought Kafka's The Trial was a work of fiction," he says. "I have more confidence, now, that the appellate division actually does care about justice."


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