Rashomon in the Bedroom

"I’m What They Call a 'Pushy Bottom'"

The District Attorney is a public officer. His duties are quasi-judicial in nature. His obligation is to protect not only the public interest, but also the rights of the accused. In the performance of his duties, he must not only be disinterested and impartial, but must appear to be so. —People v.Davis, Supreme Court, Queens County, 1983

On November 1, following last week's column, the office of District Attorney Robert Morgenthau dismissed the case against Oliver Jovanovic "in the interest of justice." His accuser had decided not to testify, but it is important to explain what the interest of justice actually was.

When this case, The People of the State of New York v. Oliver Jovanovic, was being tried in 1998 before a jury in Manhattan, the prosecutors—as reported in the retrospective analysis of the case in the May 18, 2001, New York Times—told how a Columbia University graduate student preyed "on a naive undergraduate he met on the Internet." They described "a 20-hour ordeal, a terrifying chronology of rape, sodomy, and torture, in which the woman had been hogtied, burned with candle wax, and threatened with dismemberment."

The jury believed the testimony of Barnard undergraduate Jamie Rzucek. Convicted of kidnapping and sexual abuse, Oliver Jovanovic was sentenced to a minimum of 15 years in prison.

But after Laura Mansnerus and Katherine Finkelstein of The New York Times examined the new information from private investigators hired by the defense, they reported that "pieces of the [prosecution's case] have dropped away."

For instance, Jamie Rzucek claimed "she had been vaginally and anally penetrated and had bled heavily for three days after the attack." But "a medical exam at Barnard College four days after the incident," Mansnerus and Finkelstein wrote, "turned up only fading bruises on one breast. A highly sensitive test to detect blood in the rectum found none. And despite her description of bleeding profusely from her breasts and thrashing against ropes, no cuts or rope marks were found."

Moreover, in the years since the conviction, the defense says it has developed a portrait "of a young woman depicted by some in the family as a liar and a manipulator who gave Mr. Jovanovic vivid accounts of her sexual tastes and how she indulged them with other men. Also, the defense says, she filed a previous complaint of sexual abuse that was deemed unsubstantiated."

In December 1999, a four-judge panel of the First Department, Supreme Court, Appellate Division, reversed Jovanovic's conviction, remanding the case to the original judge for a new trial.

The harrowing details of Jamie Rzucek's accusatory testimony at the first trial are extensively detailed in that appellate court decision, but the judges decided that the trial judge, William Wetzel, prevented Jovanovic's lawyers from presenting a full defense. A former law partner of Governor Pataki's, Wetzel had little experience with a criminal case of this complexity. Jovanovic's present lawyer is Paul Callan, a former prosecutor and a well-regarded member of the bar.

The core reason the appellate court reversed Jovanovic's conviction was its clear finding that Judge Wetzel had disallowed what could have been crucial defense evidence because he did not understand the scope—and limitations—of the Rape Shield Law.

This statute is intended to prevent the past sexual history of a woman charging rape from being brought into evidence by the defense. As the appellate court said, "No longer does our society generally accept the premise that a woman who is 'unchaste,' i.e., unmarried and sexually active, is more likely than a 'chaste' woman to consent to the sexual advances of any man."

But Judge Wetzel, in censoring sections of the many e-mails exchanged between Rzucek and Jovanovic, went beyond the reputational protections of the Rape Shield Law. Said the appellate court:

"The defense did not seek to introduce [those sections] to demonstrate the complainant's unchastity and thereby impugn her character or her honesty. Instead, the fact that the complainant made these statements is relevant to establish that she purposely conveyed to Jovanovic an interest in engaging in consensual sadomasochism with him."

For instance, the jury was not allowed to see this quote from a Rzucek e-mail:

"Yes, I'm what those happy pain fiends at the Vault call a 'pushy bottom.' "

In a footnote, the court says, "The defense explains that the Vault is a club catering to sadomasochists, and a 'pushy bottom' is a submissive partner who pushes the dominant partner to inflict greater pain."

When Judge Wetzel censored this and other pertinent e-mails, the appellate court points out, he "almost completely prevented Jovanovic from presenting the viable defense that the complainant had reason to fabricate the nonconsensual and violent elements of her story."

Would the jurors have had reason to question the complainant's credibility if they had seen the "pushy bottom" e-mail? Or this personal e-mail confession by Rzucek to Jovanovic—which Judge Wetzel also deleted—concerning her relationship with another man?

" . . . he was a sadomasochist and now I'm his slave and its [sic] painful, but the fun of telling my friends 'hey I'm a sadomasochist' more than outweighs the torment."

There's no doubt that Rzucek and Jovanovic engaged in a sadomasochist relationship during the 20 hours in question, but is the rest of her story of being subjected to violently nonconsensual brutality true?

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