How blind should justice be?

The extraordinarily bizarre trial
and conviction of a man accused of raping a woman he met over the Internet
may prompt a much needed reevaluation of rape shield laws.

Oliver Jovanovic, a 31-year-old
Columbia University student, met his accuser, a 22-year-old Barnard College
student, in a chat room on America Online. The two exchanged email messages
for 6 months before their first and only date in November 1996. Jovanovic
and the Barnard student both agree that she voluntarily returned to his
apartment, removed all her clothes and allowed Jovanovic to tie her to
a futon. She claims for the next 20 hours Jovanovic held her against her
will while he tortured and sodomized her. He claims everything that happened
in his apartment was completely consensual. Since there was almost no
medical evidence in the case, the trial boiled down to whose versions
of events was most believable.

When the trial began Jovanovic’s
lawyers promised to show that in her email correspondence the Barnard
student described engaging in sadomasochistic sex and expressed a desire
to do so with Jovanovic. In opening arguments, Jovanovic’s lawyer maintained,
“The evidence will show the victim was scared and repulsed by the
desires within herself as she had expressed them to Oliver Jovanovic,”
prompting the Barnard student to invent the rape story.

On the stand, however, the Barnard
student contradicted this claim, testifying under oath that she never
gave Jovanovic any indication she was interested in sadomasochism; a claim
his lawyers believe is contradicted by the email record.

Unfortunately for Jovanovic the
jury never got to read the most damaging email messages. Manhattan Supreme
Court Justice William Wetzel ruled almost 20 percent of the email correspondence
between the two inadmissible under New York’s rape shield laws. Rape shield
laws were passed, of course, to rectify a gross injustice in the law.
Prior to their passage judges regularly allowed defense lawyers to question
women in detail about their past sexual partners and instructed juries
to take into account the lack of a woman’s chastity when deciding on her
credibility. The routine introduction of such prejudicial testimony, often
with little relevance to the case being tried, clearly called for some
sort of remedy.

But in this case the judge appears
to have extended the law to shield the Barnard student from accusations
of perjury. In the edited transcript of the email given to the jury, for
example, a message by Jovanovic brings up sadomasochism out of nowhere
only two days before the alleged attack. “You’re submissive sometimes?”
Jovanovic wrote to the Barnard student. “Should have told me earlier.
You’d enjoy the uncut version of Tokyo Decadence an S&M film…”
The New York Post reported the unedited version shows Jovanovic wrote
this message in response to a message from the Barnard student describing
a sadomasochistic relationship with an old boyfriend.

Judge Wetzel ruled that such messages
were inadmissible because they described the Barnard student’s previous
sexual relationships. Allowing Jovanovic’s accuser to testify she never
mentioned sadomasochistic sex to him, while simultaneously barring Jovanovic’s
lawyers from introducing evidence that contradicted the woman’s claim,
seriously undermined Jovanovic’s ability to defend himself as guaranteed
by the 6th amendment.

To be fair to Wetzel, he also barred
the testimony of Jovanovic’s former girlfriend who claimed he attacked
her in a similar fashion 6 months prior to his alleged assault on the
Barnard student. The former girlfriend never reported the alleged attack
to the police, however, and had no medical evidence to corroborate her
story.

Judge Wetzel’s broad application
of New York’s rape shield law is certainly not an isolated incident. Sportscaster
Marv Albert was forced into a plea bargain after the judge in his case
allowed a former lover to testify about Albert’s sexual proclivities,
but denied Albert’s request to call witnesses to testify that his accuser
had a history of making false accusations against men who jilted her,
which Albert claimed was his accuser’s motive. Courts in a few states
have even gone so far as to hold that an accuser’s history of making false
accusations of rape or sexual assault are inadmissible under rape shield
laws.

Jovanovic’s lawyers are planning
to appeal his conviction. “We are confident the appellate court will
rectify the clear legal errors and palpable miscarriage of justice committed
in and by the trial court,” one of them told the Associate Press.
Hopefully Jovanovic’s trial will spur a broader examination of rape shield
laws to ensure that in the process of excluding irrelevant testimony about
an alleged victim’s sexual past they are not twisted to prevent defendants
from presenting relevant evidence that might demonstrate their innocence.

The How blind should justice be? by Brian Carnell, unless otherwise expressly stated, is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License.

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