Excluded evidence: The dark side of rape shield laws

Reason, Feb, 2002 by Cathy Young

MANY CONTINUING THREATS to civil liberties in America are completely unrelated to terrorism or to national security. Furthermore, many civil libertarians are silent about these abuses, because they are motivated by "progressive" goals--such as ostensibly protecting women from abuse.

Consider the widening reach and the unintended consequences of rape shield laws. These statutes, hailed as a way to keep victims from being smeared as skits in court, have sometimes kept juries from hearing evidence highly relevant to the guilt or innocence of the accused.

On November I, a court in Manhattan dismissed all charges against Oliver Jovanovic, a student at Columbia University. Jovanovic was at the center of a notorious "cybersex" case involving an Internet acquaintance, a real-life date, and accusations of kidnapping, sexual assault, and sexual torture.

In 1998, Jovanovic was convicted of attacking Barnard College student Jamie Rzucek (whose name has been disclosed by some media outlets after the case was dismissed) and was sentenced to a minimum of 15 years in prison. Rzucek claimed that Jovanovic held her captive in his apartment for 20 hours and subjected her to torture and sexual abuse. The defense argued that there was no torture--Rzucek's claim that Jovanovic forcibly sodomized her was disputed by medical evidence, and the jury returned a not-guilty verdict on the counts pertaining to this act--and that the bondage was consensual.

This argument was crippled by judge William Wetzel's decision to exclude portions of the e-mail correspondence between Jovanovic and Rzucek in which she discussed her adventures in sadomasochism, including her sadomasochistic relationship with another man. The messages, the judge held, were inadmissible under New York State's rape shield law because they had to do with the accuser's sexual conduct.

In late the Appellate Division of the New York State Supreme Court, by a 3-to-I vote, set aside the conviction on the grounds that Judge Wetzel had applied the rape shield law improperly and left the jury with a "distorted view of the evidence." The case was sent down for retrial, but Rzucek proved reluctant to testify a second time, and prosecutors eventually sought a dismissal "in the interests of justice." Jovanovic's vindication came at a high price: as much as $500,000 in legal fees, not to mention 20 months spent in state penitentiaries.

Rape shield laws, which mostly date from the 1970s and are virtually universal today, enjoy broad public support. In surveys, about three-quarters of Americans agree that a woman's past sexual life should not be an issue in a rape case. Indeed, it seems obvious that to quiz a woman who says she was raped about whether she has had two, 10, or 20 sexual partners is not only cruel and degrading but irrelevant to the question of whether she consented to sex with the man in the dock. But in quite a few cases, rape shield laws have been applied to evidence that has a direct bearing on the credibility of the accuser (and, sometimes, only the most tenuous connection to her sexual past).

Prior to the Jovanovic trial, the most notorious case to raise these issues was that of sportscaster Marv Albert, who was accused by his longtime friend and sex partner Vanessa Perhach of oral sodomy and assault. At the 1997 trial, notable for tawdry details of transvestitism and kinky sex, Albert's attorneys wanted to bring up Perhach's alleged conduct with other men, particularly men who left her--as Albert, who was getting married, was about to do. She had reportedly harassed and threatened a former boyfriend's family, and may have made false accusations of crimes as a form of revenge. A former lover was also willing to testify that biting, on which the assault charge against Albert was based, was a part of her sexual repertoire.

ALL this testimony was barred by Circuit Court Judge Benjamin Kendrick. (Meanwhile, a woman who came forward with a claim that Albert had sexually assaulted her several years earlier was allowed to take the stand.) With the defense's hands tied, Albert pleaded guilty to misdemeanor assault. The outcome struck many observers--even those, such as Geraldo Rivera, who are generally sympathetic to victims' rights--as shockingly unfair.

And then there are the more obscure cases:

* In Wisconsin in 1993, 18-year-old Charles Steadman was convicted of raping his 22-year-old foster sister Jessica in a he said/she said case in which physical evidence of force was absent and the defendant claimed that the sex was consensual. What the jury didn't know was that when Jessica filed the complaint, she herself was facing criminal charges of having sex with minors. (She eventually received probation with mandatory psychiatric treatment.) Clearly, this gave her a reason to lie--particularly since she had had sexual relations with Steadman when he was underage. She might have thought that being a victim would improve her legal situation as a defendant, or she might have worried that if her encounter with Steadman became known, she would get in more trouble with the law. None of these possible motives could be introduced at Stead-man's trial, since Jessica's legal problems were related to her past sexual activities and hence inadmissible.