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Nightmares of the net

A decision is currently pending on the appeal of Oliver Jovanovic,
the so- called Columbia “cybersadist” who in April 1998 was found guilty
of the kidnapping, assault, and sexual abuse of 21-year-old Jamie Rzucek
(referred to as “Madame X” during the trial and in the press, out of
respect for the victim of a possible rape). The story is not a pretty
one, but it remains vital to our cultural understanding of the laws
governing privacy and disclosure in sexual assault cases, of fundamental
personal freedoms, and of the Internet itself.

Long before the geeks had inherited the earth, little URLs had
sprouted at the bottom of every advertisement, and your Aunt Sally was
doing all her Christmas shopping online, the explosive trial
crystallized many Americans’ fears that the Internet was a sleazy realm
of darkness where unnamed monsters with unknowable, demonic skills lay
in wait for little children. The Jovanovic case embodied the crest of a
wave of anti-Internet sentiment that included an infamous, widely
criticized TIME magazine “scare” cover story about sex in cyberspace.
As the old maps used to say of unknown territories, “Here there be
dragons.”

Jovanovic’s was one of the first dragon stories told of the
Internet. His is an appalling tale — not because of the nature of the
crimes he was charged with, but because of the judicial misconduct and
politically correct prosecutorial manipulations of both law and evidence
that ultimately led to his conviction.

The case against Jovanovic, like the Tawana Brawley tragifarce, was
never constructed on facts. Some of the factual events leading up to
the alleged assault — how Jovanovic met the Barnard student in a chat
room, the many e-mail conversations they had, the dinner date that took
place — were and are matters of record. Others now just as much
matters of record — including such arresting points as “Madame X”‘s
past of high-risk encounters, her history of involvement in
sadomasochistic (S&M) activities, and her previous record of false rape
allegations, as well as the conspicuous lack of medical evidence
testified to by doctors — were never introduced in the trial. Under a
flagrant misapplication by Judge William Wetzel of New York’s Rape
Shield Law, fantastically expunged versions of events and of the e-mail
correspondence between Jovanovic and Rzucek was presented to the jury:
versions that, for the sake of shielding the complainant Rzucek’s
privacy, omitted all such inconvenient facts from the record.

The resulting trial was worse than a farce: it was an all-out
betrayal of our system of justice. Whether or not one approves of the
type of sexual activity these two students discussed with each other and
perhaps planned to engage in is hardly the point. A man’s conviction
for assault being at stake, evidence that they did in fact discuss and
plan to engage in it was surely salient and ought to have been
admitted. Likewise, Jamie Rzucek was unquestionably a deeply troubled
person, deserving a degree of sympathy and understanding — and her
having cried wolf in the past didn’t in itself prove she hadn’t met a
real wolf this time. But evidence of her history might well have been
considered relevant. Not, perhaps, relevant to whether or not she was
deserving of personal sympathy, but certainly relevant to whether Oliver
Jovanovic was deserving of fifteen years to life — if protecting the
ability of a defendant to defend himself remains a fundamental value in
our system of justice.

What were some of the things
expunged from the record?

In his own defense, Jovanovic was not allowed during the trial to
discuss the redacted portions of the e-mail correspondence or any
references Rzucek had made in phone conversations or in person regarding
her involvement in S&M activities. He could not refer to the fact that
she claimed to have had unprotected sex with, and maintain an ongoing
relationship with, a bisexual heroin addict named Luke DuBois. The jury
could not be informed that she had written of DuBois in her e-mails:
“… life led like burroughs: heroin addicted, bisexual atheist. My
kinda comrad [sic] …” and again, the next day: “he was a sadomasochist
and now I’m his slave, and it’s painful, but the fun of telling my
friends ‘hey i’m a sadomasochist’ more than outweighs the torment.”
Rzucek was knowingly allowed to perjure herself on the stand regarding
her S&M activities. The jury was told nothing. Nor did the jury ever
find out about “Madame X”‘s involvement in two previous false claims of
sexual abuse. In one, she was the alleged victim and the accused were
her own father and uncle. (She had refused to attend a family Christmas
gathering, and her father and uncle had carried her downstairs from her
bedroom.) In the other case, she had aided and abetted a false rape
claim by a friend “as a means of getting attention,” referring to
DuBois, the heroin-addict boyfriend — and admitting as much in an
e-mail to Jovanovic.

Considering “Madame X”‘s demonstrated penchant for false allegations
of assault, there is serious question as to whether the events in
question, consensual or nonconsensual, ever took place at all. Doctors
testified at the trial that virtually no medical evidence existed to
support her claims of torture (April 4, 1998 New York
Times
): “Several of the marks
that the woman identified as bruises were not bruises at all, but normal
skin coloration. … The defense witness, Dr. Barbara Wolf [a forensic
pathologist for the Albany County Coroner's office] said there were no
bruises or cuts that would have resulted from bites. In her statements
to the police, as well as in her testimony, the woman has accused
Jovanovic of biting her breasts until they bled.” There also was no
evidence that she was ever struck, sexually assaulted with a stick, or
burned. The characteristic marks that should have been reflected in the
medical records or visible in photographs taken after the incident were
conspicuous by their absence.

In the trial, the prosecution was allowed to change the testimony to
fit the lack of medical evidence, softening the sworn allegations of
extreme violence that had partly caused the case to go to trial.

How could it legally happen?

All of these glaring omissions — omissions that amount to
out-and-out misrepresentations — were made possible by Judge Wetzel’s
misdeployment of the New York Rape Shield Law (Criminal Procedure
Code §60.42)
. The Rape Shield
Law is a broad prohibition against asking a jury to infer present
consent to sexual activity merely from past conduct. The Rape Shield Law
is a well-intentioned attempt to prevent rapists and sexual abusers from
dragging up unsavory episodes from the victims’ past lives in an effort
to discredit them and sway juries against them. The idea that because a
woman has had premarital or extramarital sex or was wearing provocative
clothing, she must have been “asking for it,” was once a major deterrent
against pressing legitimate rape charges. The question to be resolved
with this case is whether these concerns for the complainant in a sexual
assault case may overshadow a defendant’s fundamental right to confront
his accuser and defend himself fairly at trial.

Laws like the Rape Shield Law were never intended to strip defendants
of all power to defend themselves by reference to evidence of a victim’s
past sexual conduct. Five exceptions are written into the New York by
which, in the interest of justice, such evidence may be presented.
Several of them ought to have applied in Jovanovic’s case — most
glaringly the first: that evidence that “proves or tends to prove
specific instances of the victim’s prior sexual conduct with the
accused” is to be admitted. Judge Wetzel had ruled that the e-mail
between Jovanovic and Rzucek dealing with sex and S&M was to be
considered “sexual conduct,” allowing him to redact it from the record.
If the e-mail constituted sexual conduct, it ought to have been admitted
according to the first exception, thereby establishing “the victim’s
prior sexual conduct with the accused.”

A different exception exists for evidence offered outside the jury’s
hearing that the facts are “relevant and admissible in the interests of
justice.” Such evidence existed in abundance for the defense. The
expunged portions of the e-mail record showed that Rzucek had perjured
herself regarding her past S&M activities, false rape accusations, and
high-risk sex.

Yet another exception is supposed to be made for evidence rebutting
allegations that the accused was the cause of harm done to the
complainant — in view of the “sadomasochist” boyfriend, DuBois, a
distinctly debatable point. The defense was not allowed to establish
the possibility that Luke DuBois had caused Jamie’s bruises — such as
they were. The defense was barred from calling a doctor whom the
prosecution (not the defense) had hired to examine Rzucek, and who had
found a cut in an intimate spot which medically could not have been
perpetrated by Jovanovic, because it was too recent. An attempt to
fabricate evidence — or a memento of subsequent S&M activities? Neither
possibility was ever allowed to be raised.

The significance of the case

Oliver Jovanovic’s fate presents profound questions as to the
essential reliability of our justice system — and of our society’s
sense of basic fairness. The case against him was built not on facts
but on a series of inchoate but powerful popular attitudes: partly on
the then widespread fear of the still unfamiliar Internet, partly on a
politically correct complex of ideologies regarding sex and sex law.
Those ideologies include the propositions that pain inflicted during a
sexual encounter cannot be consensual (a profoundly silly idea, as
anyone who has ever treasured a hickey should realize); that the
infliction of such pain always and by definition constitutes assault;
and, most damagingly, that in a sexual assault case it is more important
to shield the complainant than to preserve the defendant’s right to
defend himself fairly. The explosiveness of this trial, tapping into
the public’s fear of the Net and its disgust at a sexuality it found
both politically incorrect and morally suspect, made it possible for
Jovanovic to be branded a “cyberfiend” — and for his accusers to have a
virtually unchallenged field day twisting the facts against him.

Maybe the Internet is indeed the dangerous place everyone feared.
Oliver Jovanovic found it so.

Oliver Jovanovic earned a BA and an MS from the University of
Chicago and an MA and an MPh from Columbia University. He was due to
defend his doctoral thesis at Columbia University on December 20th,
1996. He was active in a number of student organizations at Columbia
and had organized self-defense courses for men and women on campus. His
father is one of the nation’s premiere scholastic chess teachers; his
mother is a first violinist with the New York City Ballet. He has no
criminal record, had never been arrested, and had never before been
accused of sexual harassment or sexual assault. He was not permitted to
apply for bail pending the current appeal, and has been imprisoned since
his sentencing to 15 years to life on May 29, 1998. His appeal is
currently pending.

For more information:

I recommend Steve Dunleavy’s New York Post coverage, particularly
this April 1998
post-verdict interview with Jovanovic and general summary of the case.
The Post’s Ann V. Bollinger provided
ongoing coverage of the trial as well, reporting the
expungement
of key evidence as
well as bits and pieces of the day-to-
day
events. The Wall Street
Journal called for juries not to be shielded from the truth in sex cases
in an April 20, 1998 piece mirrored
here (the WSJ itself is a
subscriber site). An excellent article in Psychology
Today
reflects on the case’s
implications.

Jovanovic’s family and supporters have compiled a Web
site collecting data and commentary
relating to the trial.

The Oliver Jovanovic Legal Defense Fund can be found
here.

I am indebted to the legal analysis of Dr. Sandro Cohen, Humanities
Professor at the Metropolitan University (UAM) in Mexico City, which
appeared in the newspaper La Jornada on May 18, 1998 under the title
“Oliver Jovanovic: First Sacrifice of the Digital Age” (click
here
for original Spanish article).

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