The Wall Street Journal, Monday, April 20, 1998

By Cathy Young

Last week, Oliver Jovanovic, a 31-year old doctoral candidate in microbiology at Columbia University, was convicted of kidnapping and sexually abusing a 22-year-old Barnard College student he had met in an Internet "chat room." "The defense did not do enough to defend Oliver", a juror said after the verdict. In fact, the defense was hamstrung by the misapplication of a law, intended to protect victims from being dragged though the mud, which instead has been used to withhold evidence that could exonerate the accused.

Jovanovic and the Barnard student went on a date after meeting in an America Online chat room in 1996 and exchanging electronic mail. At his apartment, by her own account, the young woman let herself be stripped and tied up; she claimed that Jovanovic then kept her bound, against her will, for 20 hours and sexually tortured her. The defense argued that what happened was consensual. This argument, however, was crippled by Judge William Wetzel's decision - based on New York's "rape shield" law, which restricts the use of the accuser's sexual past - to exclude portions of the e-mail dealing with sadomasochistic sexual activity.

Rape shield laws, now on the books in every state, originated in the feminist overhaul of rape law in the 1970's. The reforms were directed at real injustices: Once juries were commonly instructed that they could consider an accuser's lack of chastity as detracting from her credibility, and defense lawyers could grill a woman about her sexual partners. Such inquiries are now rightly perceived as not only cruel but irrelevant: A woman's promiscuity doesn't prove that she consented to sex with a particular man.

Yet sometimes sexual history is directly relevant to consent and credibility. In the Jovanovic's case, the defense contends that the law ended up shielding perjury. The young woman testified that in her correspondence with Jovanovic, she had never given any indication that she was interested in sadomasochism - a statement that the e-mail excluded from would have called into doubt.

Such suppression of vital evidence seems blatantly unfair, particularly when a defendant is risking a sentence of up to 25 years in prison. It should be noted that the judge also excluded as "prejudicial" the testimony of an ex-girlfriend who says Jovanovic subjected her to a sexual attack similar to the Barnard student's account. One may debate whether her story should have been admissible, considering that she never reported the alleged attack and has no medical record of injuries. But at least Judge Wetzel was more even-handed than Arlington, Va., Circuit Court Judge Benjamin Kendrick, who presided over the trial of sportscaster Marv Albert last year.

Mr. Albert was charged with sexually assaulting and biting a longtime lover, who identified herself after the trial as Vanessa Perhach. During the trial, Judge Kendrick allowed another woman to testify that Mr. Albert had also attempted to assault and bite her. The defense was kept from introducing evidence that reportedly showed Ms. Perhach had a pattern of behaving vindictively toward men who broke up with her (as Mr. Albert was doing), that her methods of revenge included false accusations of criminal acts, and that biting was a part of her sexual repertoire (which would have undercut the prosecution argument that the bite marks were proof of assault).

With his kinky proclivities exposed to a national audience and his defense hogtied, Mr. Albert was pressured into pleading guilty to misdemeanor assault. Many commentators, even those sympathetic to victims' rights, were appalled by what they saw a perversion of laws protecting victims. But this was not an aberration. In a number of less notorious cases, exculpatory evidence has been withheld from the jury because it was related, sometimes indirectly, to the accuser's past sexual behavior.

The jury in the 1993 trial of Charles Steadman, an 18-year-old Wisconsin man charged with sexually assaulting a 23-year-old woman, never learned that the complainant was herself facing criminal charges or sex with underage boys (she was later convicted). The defense wanted to argue, not implausibly, that this gave the woman a motive for a false complaint. She might have thought that being a victim might improve her situation. Or she might have worried that if her encounter with Steadman - with whom she had first gotten involved when he was a minor - became known, it would aggravate her legal troubles. The judge, however, ruled that the charges pending against her could not be mentioned, since they had to do with past sexual activities. Steadman was convicted and sentenced to eight years in prison. Legal scholars - including such feminists as Vivian Berger of Columbia University - have warned that current use of the rape shield law may violate the defendant's Sixth Amendment right to confront witnesses against him and to produce evidence in his favor. So far, appellate courts have not been sympathetic to these concerns. In several states, including Iowa, Pennsylvania and Washington, courts have held that even excluding an earlier false allegation of rape by the accuser does not deny the accused a fair trial.

In 1994, the U.S. Court of Appeals for the Seventh Circuit upheld the attempted rape conviction of Lonnie Stephens, who was barred at trial from giving his version of the events: that the woman became enraged at him because, during sex, he mentioned that a male friend had told him she liked a particular position. While troubled by this hobbling of Stephen's right to defend himself, the court was more worried about creating a loophole defendants could use to smuggle in the victim's sexual past.

Jovanovic's attorneys are planning to appeal his conviction. This case could prove to be a good opportunity to re-examine the constitutionality of rape shield laws when they result in the exclusion of relevant evidence. Champions of victims' rights have argued for years that the truth-seeking function of a trial is impeded when key evidence against the defendant is dismissed on a legal technicality. It is impeded just as much when key evidence that helps the defendant is barred out of a misguided paternalism toward women.

Ms. Young is vice president of the Women's Freedom Network and author of "Ceasefire: beyond the Gender Wars", to be published next year by Free Press.