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