Angela M. Mazzarelli, J.P.

David B. Saxe, JJ.

-against- 337

Defendant-Appellant.

Defendant appeals from a judgment of the Supreme Court, New York County (William Wetzel, J.), rendered May 29, 1998, which convicted him, after a jury trial, of kidnapping in the first degree, sexual abuse in the first degree (three counts), assault in the second degree and assault in the third degree.

Mark Dwyer, of counsel (Grace Vee and David M. Cohn, on the brief, Robert M. Morgenthau, attorney) for respondent,

Diarmuid White, of counsel (Brendan White, on the brief, attorneys) for defendant -appellant.

"So said intrest (sic ) plotted my death as well as a means of getting attention, thus the rape."

  ;

'oh wow' I perked up all the time thinking snuff film snuff film snuff film murder plot present, I presented offer of assistance. Luke said sure, then told me more, about his old boyfriend gillian, what he taught him. and about ginger and this one dominatrix who lives on the 10th floor."

"No duh, there's more, more interesting than sex, yes he did catch me, no sex, but 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."

and yes, I'm what those happy pain fiends at the Vault call a "pushy bottom"⁴.

Evidence of a victim's sexual conduct shall not be admissible in a prosecution for [a sex] offense or an attempt to commit [a sex] offense . . . unless such evidence:

(emphasis added.)

The importance of this statute is in no way diminished by the discussion and conclusions that follow. We fully recognize that a woman's character or reputation for chastity is irrelevant to a charge that she was sexually assaulted. Our holding is simply that the Rape Shield Law, by its terms, is inapplicable to the evidence the trial court held to be inadmissible.

Initially , we hold that the redacted e-mail messages were not subject to the Rape Shield Law because they did not constitute evidence of the sexual conduct of the complainant. Rather, they were merely evidence of statements made by the complainant about herself to Jovanovic.

The distinction between evidence of prior sexual conduct (to which the statute expressly applies), and evidence of statements concerning prior sexual conduct, is more than merely semantic. Direct evidence of a complainant's conduct with others would generally be introduced (if admissible) as a basis to infer that she had voluntarily behaved in such a way on prior occasions with others. In contrast, the use of a statement is not so straightforward. It is frequently relevant not to prove the truth of the matter stated, but rather, for the fact that the speaker made the statement. That is, a statement may be relevant as proof of the speaker's, or the listener's, state of mind.

For instance, here , the complainant's statements to Jovanovic regarding sadomasochism were not necessarily offered to prove the truth of what she said, i.e. that she actually was a sadomasochist. Rather, much of their importance lay in the fact that she chose to say these things to Jovanovic in the context of her electronic, on- line conversation with him, so as to convey to him another message, namely, her interest in exploring the subject of such activities with him.

This distinction between evidence of sexual conduct and evidence of statements concerning past or contemplated sexual conduct has been recognized by other jurisdictions with similar rape shield laws. For instance, in State v Guthrie (110 NC App 91, 428 SE2d 853), a letter written by the complainant to a third party, proposing sex, was held to be evidence of conversation, not of a sexual act, and therefore was not barred by that state's Rape Shield Law ( see also, Commonwealth v Killen, 545 Pa 127, 680 A2d 851, 854 [Rape Shield Law does not preclude evidence of sexually provocative statements made by the complainant after the alleged attack, one to a man who rode with her in the ambulance and another to the emergency room physician]; Doe v United States, 666 F2d 43 [testimony as to the content of telephone conversations between the victim and the defendant not excluded by the rule]).

In this State, although no holding has clearly drawn an absolute line of demarcation between prior sexual conduct and statements concerning prior sexual conduct, the Rape Shield Law has been held inapplicable to (1) a complainant's statement to the defendant that she "was out to get laid that night" ( see, People v Hauver, 129 AD2d 889), and (2) a complainant's prior claims of rape ( see, People v Harris, 132 AD2d 940, 941). Additionally, People v Kellar (174 AD2d 848, 849, lv denied 78 NY2d 1128) draws the distinction between statements and conduct in discussing the circumstances under which CPL 60.42(3) permits a defendant to rebut prosecution evidence that the victim had not engaged in sexual conduct with others. The Kellar Court explained that in the face of testimony that the victim was a virgin at the time of the incident, CPL 60.42(3) entitles the defendant to offer evidence rebutting that showing; whereas, if the victim testified that she merely told the defendant that she was a virgin, the defendant would not be entitled to offer rebuttal evidence on that point under CPL 60.42 ( see, People v Kellar, supra).

Were the complainant's statements framed as mere fantasies or secret desires, rather than as reports of her prior activities, there would have been no question that the Rape Shield Law would be inapplicable, since such statements reflect only thoughts and not actions. Yet, in this context, the two types of statements are more similar than not . That her communication took the form of reports about her purported experiences should not transform a highly relevant statement into a protected one.

We therefore conclude that for all the foregoing reasons, the e-mail statements ruled inadmissible by the trial court were not covered by the Rape Shield Law. However, even assuming, arguendo, that no distinction could properly be made between prior conduct and statements about prior conduct, we would still hold that the Rape Shield Law does not support the preclusion of the e-mails at issue, because we conclude that these statements fall within a number of the exceptions set forth within the statute.

Applicability of the Statute's Exceptions

Although the Rape Shield Law is grounded upon a recognition that evidence of a victim's character for chastity is generally irrelevant to a rape prosecution, even the drafters of Rape Shield legislation recognized that information about the victim's past sexual conduct is not always irrelevant ( see generally, Berger, Man's Trial, Woman's Tribulation, supra at 57-69). Indeed , the inclusion of exceptions within CPL 60.42 is due to our legislature's recognition of the possibility that certain types of sexual history evidence will be relevant. The bill was specifically drafted "to strike a reasonable balance between protection of a victim's privacy and reputation while not infringing on the defendant's right to a fair trial based on the presumption of innocence" (Mem of Assemblyman Fink, 1975 NY Legis Ann, at 47-48). A blanket exclusion which covered clearly relevant sexual conduct evidence would unduly circumscribe a defendant's constitutional right to cross-examine witnesses and present a defense ( see, People v Williams, supra, at 312). Consequently, for instance, "the bill deems proof of the victim's past sexual conduct with the accused or acts of prostitution as relevant" (Mem of Assemblyman Fink, 1975 NY Legis Ann, supra), and, accordingly, creates an exception for such evidence. By the same token, the "interests of justice" exception contained in subdivision (5) of the statute was included to ensure that relevant evidence not otherwise admissible could be introduced.

Turning to the redacted communications from the complainant to Jovanovic, even if the precluded statements were viewed as evidence of the complainant's prior sexual conduct, they fall within several of the exceptions contained in the statute. First, given the highly intimate nature of some of this information, the statements , as a practical matter, should be viewed as the equivalent of "prior sexual conduct with the accused ". These statements, made to Jovanovic in the context of a relationship being developed on-line, as part and parcel of the ongoing conversation that led up to their in-person encounter, are really part of the complainant's verbal repartee with him, in which each participant tells the other of their interests and preferences. Viewed with the purpose of her statements in mind, even if the Rape Shield Law were to apply to statements, the redacted statements should therefore have been held to be admissible as falling within the first exception to the Rape Shield Law (CPL 60.42[1]).

The exception for past conduct with the accused is included in the statute because a "history of intimacies" would "tend to bolster a claim of consent" (Berger, supra at 58; see also, People v Westfall, 95 AD2d 581, 583). The statements here, especially in view of their intimate nature, have the same sort of potential of shedding light on the motive, intent, and state of mind of these two people in their subsequent encounter.

Secondly, those redacted e-mail statements that report the complainant's involvement in a sadomasochistic relationship with Luke were also admissible under CPL 60.42(4), the exception for evidence tending to rebut the people's showing that the accused is the cause of "disease" of the victim. The People contended that Jovanovic's actions had caused various bruises on the complainant. Consequently, Jovanovic should have had the right to inquire into the complainant 's statements indicating that at the time of the alleged incident she was in a master-slave relationship with someone else, particularly since she specifically stated that this conduct was "painful". Further , based upon this particular statement, the defense should also have been permitted to inquire of both the complainant and Luke as to whether Luke had caused bruising to the complainant in the days prior to the incident.

Although the wording of section 60.42(4) concededly does not specifically include the word "injury", it is noteworthy that the Memorandum of the bill's sponsor reflects an intent to include the concept of injury along with that of disease ( see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48). There is no support in the legislative history for a purposeful deletion of the word "injury ", and it would be illogical to permit one defendant to introduce evidence rebutting a showing that he was the cause of disease in the victim, but not permit another defendant to rebut a showing that he was the cause of the victim's injuries. No rational distinction can be made ( see, People v Mikula, 84 Mich App 108, 269 NW2d 195). Indeed, in other jurisdictions it has been held that due process rights must encompass the right to offer evidence providing an alternative explanation for evidence presented by the state to prove that the accused caused a physical condition arising from the charged crime ( see, e.g., United States v Begay, 937 F2d 515, 523; State v Cressey, 137 NH 402, 628 A2d 696).

Third, given the relevance of the redacted statements to the issues presented to the jury, even if none of the statute's other exceptions covered the complainant's statements to Jovanovic, the "interests of justice" exception of CPL 60.42(5) would be applicable. That exception was included in order to give courts discretion to admit what was otherwise excludable under the statute, where it is determined that the evidence is relevant ( see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48, supra).

Even if no other exception applied, the precluded communications from the complainant to Jovanovic were highly relevant. The defense did not seek to introduce them to demonstrate the complainant's "unchastity" and thereby impugn her character or her honesty. Instead, the fact that the complainant made these statements to Jovanovic is relevant to establish that she purposefully conveyed to Jovanovic an interest in engaging in consensual sadomasochism with him.

Because the jury could have inferred from the redacted e-mail messages that the complainant had shown an interest in participating in sadomasochism with Jovanovic , this evidence is clearly central to the question of whether she consented to the charged kidnapping and sexual abuse⁵. The People emphasize that it is not whether she initially consented that is relevant, but whether she withdrew her consent and whether defendant continued to act despite the withdrawal of consent. However, the strength of the evidence as to the extent to which the complainant initially indicated to Jovanovic an interest in participating in sadomasochism with him is relevant to a determination of whether that consent was withdrawn.

Furthermore, the e-mails Jovanovic received from the complainant, particularly her statements, "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," and "yes , I'm what those happy pain fiends at the Vault call a 'pushy bottom,'" could illuminate Jovanovic's understanding and beliefs as to the complainant's willingness to participate in sadomasochism with him ( see, Doe v United States, 666 F2d 43), and, as such, are also relevant to Jovanovic's state of mind .

The redacted e-mail messages were also highly relevant to establishing the defense that the complainant concocted her accusation in order to explain to Luke either her failure to meet him that night, or her participation in sadomasochism with another man. Moreover, direct evidence that the complainant had a sadomasochistic relationship with Luke, to which evidence the Rape Shield Law would otherwise apply , should also have been admitted, under the interests of justice exception to the statute. Even in Professor Vivian Berger's ground-breaking article, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom (77 Colum L Rev 1, 98-99), in which she discussed the need for Rape Shield laws, Professor Berger included among her suggested exceptions to rape shield statutes a situation where the evidence arguably showed that the complainant had a motive to fabricate the charge. Furthermore, although our Legislature did not include such an exception in this State's Rape Shield Law, the United States Supreme Court has held that in a rape/sodomy prosecution , evidence of the complainant's relationship with another man may be highly relevant to establish the defense that she lied about the consensual nature of the charged sexual activities out of fear of jeopardizing that other relationship ( see, Olden v Kentucky, 488 US 227).

While defendant was permitted to cross-examine the complainant and Luke so as to elicit that their relationship was "intimate", he was precluded from inquiring into the sadomasochistic nature of that connection. The ruling almost completely prevented Jovanovic from presenting the viable defense that the complainant had reason to fabricate the nonconsensual and violent elements of her story. Only through full cross-examination of the complainant, including the nature of her relationship with Luke, could defendant have "'"expose[d] to the jury the facts from which [it ] ... could appropriately draw inferences relating to the reliability of the witness"'" ( see, Olden v Kentucky, supra at 231, quoting Delaware v Van Arsdall, 475 US 673, 680, quoting Davis v Alaska, 415 US 308, 318; see also, State v Colbath, 130 NH 316, 540 A2d 1212, 1217). That is, only if full inquiry were permitted into her assertion that she was in a sadomasochistic relationship with Luke could the jury have a basis from which to infer that the complainant had a motive to fabricate her accusation of a forcible, violent assault, in order to avoid any negative response from Luke resulting from her voluntary participation in sadomasochism with another man.

In addition, redaction of the long narrative in the second e-mail, in which the complainant told Luke's story of a sadistic sexual encounter, was not justifiable under the Rape Shield Law, as it did not report past conduct on the part of the complainant. In any case, it was highly relevant to the attempted defense that the claim of attack was concocted, particularly in view of the similarity between that narrative and Jovanovic's complained-of conduct on the night in question.

We conclude that the trial court's rulings erroneously withheld from the jury a substantial amount of highly relevant, admissible evidence. Furthermore, these errors were of constitutional dimension .

The Sixth Amendment Right to Confront Witnesses

Cross-examination "is critical for ensuring the integrity of the fact finding process" and is "the principal means by which the believability of a witness and the truth of his testimony are tested" ( Kentucky v Stincer, 482 US 730, 736; Davis v Alaska, 415 US 308, 316). The trial court's redaction of the complainant's statements to Jovanovic, and its consequent limitation on the defense's cross-examination of the complainant regarding her interest and participation in sadomasochism and her relationship with Luke, resulted in a violation of defendant's Sixth Amendment right to confront the People's primary witness ( see, Olden v Kentucky, 488 US 227; see also, State v Colbath, 130 NH 316, 540 A2d 1212, 1217).

Admittedly, the constitutional guarantee of the right to confront the prosecution's witnesses is not absolute, and may be circumscribed by statutory evidentiary restrictions (such as the Rape Shield Law) which serve "the legitimate demands of the

adversarial system" ( see, People v Williams, supra at 313, quoting United States v Nobles, 422 US 225, 241; see also, Michigan v Lucas, 500 US 145, 149). However, no legitimate evidentiary restrictions were applicable here.

While even a proper application of the Rape Shield Law may interfere to an extent with the defendant's right to confront witnesses, it must be remembered that, generally, the evidence precluded by such laws, of other, unrelated sexual conduct by the complainant, is of little or no probative value . "To the extent that shield statutes limit the accused from unfairly attacking the morality of a rape victim, they are unobjectionable" ( Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U Pa L Rev 544, 5 89 [1980]). Where the precluded evidence is highly relevant, however, the deprivation of fundamental constitutional rights cannot be justified merely by the protection of the complainant from an attack on her chastity.

The Prejudice to the Defense

The court's erroneous preclusion of the e-mail messages and other relevant, admissible evidence from the jury's consideration was particularly egregious, in view of the People's approach in presenting the case against Jovanovic. He was depicted as a monstrous sadist, scanning the Internet for unwary victims, preying on unknowing, naive innocents . In contrast, while the People, and indeed, the complainant, both acknowledged that she had flirted with Jovanovic in her messages, trying to impress him with her wit and intelligence, the complainant was basically portrayed as naive, overly trusting, overly polite and ill-informed.

The excluded e-mail stating that the complainant and Luke had a master-slave relationship that included the infliction of pain, and the e-mail in which the complainant referred to "the pain fiends at the Vault" and to herself as a "pushy bottom," i.e. a masochist who pushes the dominant partner to inflict more pain than intended , would have enabled Jovanovic to provide a counterpoint to the People's portrayal of the complainant and avoid the prejudice potentially created by the unbalanced portrayal. It would also have permitted Jovanovic to effectively place the complainant in a somewhat less innocent, and possibly more realistic , light. For instance, the complainant made certain remarks in her e-mails, such as "rough is good," and "dirt I find quite erotic," for which she provided the jury with completely innocent explanations . Defendant was unable to plausibly offer alternative, more suggestive readings of such e-mail remarks , as long as the jury was unaware of the extent of the complainant's interest in sadomasochism.

Jovanovic should have been given the opportunity to inquire as to what the complainant meant by her remarks regarding her participation in sadomasochism. If, in fact, they were exaggerations, or flights of fancy, their extreme nature would be relevant to the issue of the complainant's veracity and reliability . If they were exact statements of fact, Jovanovic should have been permitted to bring to the jury's attention the possibility that the person the complainant had referred to as her "master" might have been unhappy about her experiencing sadomasochism with another "master". He should also have had the opportunity to explore the complainant's intention and purpose in disclosing to him that she was involved in such a relationship.

As the case stood, Jovanovic was precluded not only from bringing out the degree to which the complainant seemed to be inviting sadomasochism, but from exploring the possibility that the complainant was a less reliable narrator of events than she appeared to be at trial. For instance , the prosecutor was able to repeatedly ask the rhetorical question, "Why would she lie?" while the defense was unable to point to an evidentiary basis for any plausible reason, although more than one existed (e.g., her "master" might have been unhappy with her had she told him her conduct with Jovanovic was consensual; or, she made a practice of creating elaborate sexual fantasies). The prosecutor was also able to remark in summation, without any possible contradiction, that if the complainant had wanted to engage in sadomasochism, she could have said so in her e-mails.

Finally, the erroneous ruling in effect gutted Jovanovic's right to testify fully in his own defense, since it prohibited him from offering the jury any evidence justifying an asserted belief that the complainant had indicated a desire to participate in sadomasochism with him.

In light of the degree to which the defense was hampered , both in demonstrating that the complainant had consented to participating in sadomasochism, and in challenging the complainant's reliability and credibility as a witness, the conviction must be reversed in its entirety. Upholding the conviction on the assault charges, as the dissent suggests, would ignore the prejudice resulting from Jovanovic's inability to adequately challenge the complainant's credibility and reliability. We are unable to conclude that the error was harmless.

Other Evidentiary Errors:

Limitation of Inquiry into Karen's Claim of Rape

At trial, the complainant testified to her part in bringing Karen to the hospital when Karen said she had been raped. The court also permitted Luke to offer his belief that Karen's claim was motivated by her desire to interfere with his relationship with the complainant. However, following a pre-trial hearing at which Karen testified , Jovanovic was prevented from inquiring before the jury what the complainant knew about what had actually occurred to Karen. In particular, he was unable to inquire into her e-mail message that

The court determined in its pre-trial hearing that Karen had not actually made a false rape claim, but rather, had expressed uncertainty as to whether the event would fall within the definition of rape. The court therefore concluded that the complainant could not be said to have been a party to a false rape claim, and prohibited all inquiry into this e-mail message. This ruling, too, was an improper limitation of the defense.

As a result of the court's prevention of further inquiry, the jury was left with only the complainant's initial e-mail statement about Karen having been raped, including the complainant's assertion at trial that she doesn't "understand violence". Preventing Jovanovic from cross-examining the complainant regarding the meaning of the words "[Karen] plotted my death as well as a means of getting attention, thus the rape," meant he was unable to cross-examine the complainant regarding the puzzling interaction between Karen and the complainant, whether they treated each other as friends, rivals, or strangers. The jury was left to arrive at the possible false conclusion that the complainant had acted as a good Samaritan and assisted an acquaintance who had been raped. While these points were not central to the elements of the charged crimes, by preventing Jovanovic from seeking to clarify the complainant's misinformation, he was unable to call into question the resultant image of the complainant as responsible, trustworthy, accurate and innocent.

The Spectator Article

In addition, the trial court erred in permitting the People to place in evidence the full text of a news article from the Columbia University campus newspaper, the Spectator, reporting the story of a woman named Sharon Lopatka, who in October 1996 was killed by a man with whom she had initiated an on-line relationship.

The foundation for the prosecutor's use of the article was Jovanovic's reference, in one of his e-mails, to a Spectator article about Sharon Lopatka , in response to the complainant's request for suggested plots for a snuff film. On the basis of that reference, the trial court permitted the prosecutor to read into the record the full text of the article in the course of the complainant's direct examination, apparently on a theory that judicial notice could properly be taken of the article. Defense counsel was not permitted any voir dire on the issue of whether this article had been the subject of an on-line conversation between the complainant and Jovanovic, or indeed what the complainant knew of the story.

Had counsel been permitted a brief voir dire, the court would have found that, as the complainant testified immediately after the article was placed in evidence, in fact she had not understood Jovanovic's reference to have been to that particular article. Consequently, there was no proper foundation for its admission into evidence. Nor was the introduction of the complete article into evidence justified by the concept of "judicial notice", which applies to the introduction of indisputable facts and matters of common knowledge ( see, Richardson, Evidence § 2-201 et seq. [Prince 11th ed]).

Moreover, its prejudicial impact was not properly considered. The article told the story of Sharon Lopatka's on -line acquaintance with a Maryland man whom she had informed of her desire to be tortured and killed, and about her ultimate death, allegedly at the hands of this man. The introduction of the full text was unnecessary, and because of its potentially inflammatory effect under the circumstances, its introduction was improper, and only served to compound the prejudicial impact of the other errors.

Accordingly , the judgment of the Supreme Court, New York County (William Wetzel, J.), rendered May 29, 1998, convicting defendant, after a jury trial, of kidnapping in the first degree, sexual abuse in the first degree (three counts), assault in the second degree and assault in the third degree, and sentencing him to a term of 15 years to life on the kidnapping conviction concurrent with lesser sentences on the remaining convictions , should be reversed, on the law, and the matter remanded for a new trial.

All concur except Mazzarelli, J.P.

who concurs in part and dissents

in part in an Opinion.

MAZZARELLI , J.P. (concurring in part and dissenting in part)

While I agree with the majority’s conclusion that a new trial is required because the trial court misapplied the Rape Shield Law when it precluded material evidence which may have affected the conviction on the kidnapping and sex abuse counts, a different perspective informs my analysis. Further, I would affirm the defendant’s conviction on the assault charges .

I agree, for the reasons set forth in the majority opinion, that the introduction of the full text of the Spectator article was improper. I share the view that the erroneous admission of this evidence had an enormous prejudicial impact on the defense. With respect to the redacted e-mails , I would also find that the complainant’s statements concerning her interest in sado-masochistic practices should have been admitted, because the Rape Shield Law, which is designed to preclude introduction of "evidence of a victim’s sexual conduct", is not meant to exclude statements of interest in sex ( see, People v Kellar, 174 AD2d 848, 849, lv denied 78 NY2d 1128; People v Hauver, 129 AD2d 889, 890). Further, even were these statements to be covered by the statute, I would find that they should have been admitted under the interests of justice exception set forth in CPL 60.42(5), because they are relevant to both the complainant’s state of mind and defendant’s perception of her thinking. The complainant’s discussion of these topics in her electronic conversations with the defendant preceding their date was necessary to provide the jury with an accurate factual narrative.

However, I disagree with the majority that the complainant’s conversations concerning sex with other individuals were improperly excluded under CPL 60.42, and I would also find that the third redacted November 20^th e-mail was properly redacted because it concerned a direct statement relating to the complainant’s prior conduct, her sado -masochistic relationship with her boyfriend. This redaction was also appropriate because the transmission described behavior which would serve only to disparage the complaining witness’s reputation.

The defense argues that the third redacted November 20^th e-mail should have been admitted in its entirety pursuant to 60.42(4), to support a claim that the complaining witness’s boyfriend could have been the source of her injuries. I disagree. The defense was not prevented from putting this theory before the jury as it was allowed to question the complaining witness’s boyfriend himself as to whether he had inflicted any bruising upon the complainant in the days preceding the incident. This is the only bruising relevant to this case. The determination to limit inquiry to this issue was not an improvident exercise of discretion, and again comports with the purpose of the Rape Shield Law. This is especially true when viewed within the context of the main theory articulated by the defense, which is that the alleged violent acts did not take place. Based on this position, details of prior consensual, violent behavior were properly redacted from the e-mail as they would be irrelevant to the defense on the kidnapping and sexual abuse counts.

Unlike the majority, I would not find the third redacted November 20^th e-mail admissible under CPL 60.42(5), the interest of justice exception to the Rape Shield Law. Since CPL 60.42(5) is designed to allow the introduction of material which has been deemed presumptively inadmissible, the proffered evidence merits careful scrutiny ( see, Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, 34 ). Given the complainant’s right to sexual self-determination, I would find that the inflammatory nature of the evidence of her prior sexual conduct would, in the eyes of the jury, outweigh the probative value of this evidence. Presenting this information could mislead the jury to conclude that the complainant was more likely to consent to the charged sexual offenses because she had previously consented to similar , violent acts ( see, People v Williams, 81 NY2d 303 [precluding evidence that complainant had formerly engaged in group sex in a gang rape prosecution]).

Further, the majority states that, "the strength of the evidence as to the extent to which complainant initially indicated to Jovanovic an interest in participating in sadomasochism with him is relevant to a determination of whether that consent was withdrawn" (emphasis in original). I strongly disagree. The encounter should be evaluated on the basis that the complainant, as any person engaging in sexual activities, had a continuing legal right to withdraw her consent to any of the actions taking place in Jovanovic’s apartment. The only evidence relevant to that issue is that which relates to the events in question.

The Rape Shield Law was expressly drafted for the purpose of protecting those persons who are sexually active outside a legally sanctioned relationship. It serves the very important policy objective of removing certain impediments to the reporting of sex crimes. Specifically, the law was drafted to encourage victims of sex offenses to prosecute their attackers without fear that their own prior sexual activities, regardless of their nature, could be used against them at trial. In enacting the Rape Shield Law, the legislature sought to prevent muddling the trial with matters relating to a victim’s prior sexual conduct which have no proper bearing on the defendant’s guilt or innocence, but only serve to impugn the character of the complainant and to prejudice the jury. To limit its applicability and protections as the majority holds would only serve to turn the clock back to the days when the main defense to any such charge was to malign the complainant. Here, where a victim’s sexual preferences are widely disapproved, it is crucial that evidentiary determinations be made with heightened concern that a jury may act on the very prejudices that the statute seeks to exclude.

Additionally, I would affirm the defendant’s convictions for second and third-degree assault. Penal Law § 120.05(2) provides that a person is guilty of second-degree assault when, "[w]ith intent to cause physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument", in this case by scalding the complaining witness with hot wax. Further, Penal Law § 120.00(1) provides that a person is guilty of third-degree assault when " ;[w]ith intent to cause physical injury to another person, he causes such injury to such person" , here by biting the complaining witness. As the majority correctly notes, neither statutory section provides for a consent defense, nor do these sections list lack of consent as an element to be proven by the prosecution ( cf. Penal Law 120.05[5] ["without consent" is an element of the offense]; Penal Law 130.05 [consent established as a defense to various degrees of sexual abuse crimes]). While several New York cases, decided over 25 years ago, have indicated that consent, if intelligently given, can be a defense to a charge of assault ( People v Steinberg, 190 Misc. 413, 416-417 [assault charge sustained where nurse purported to vaccinate people against smallpox but injected only water]; see also, People v Freer, 86 Misc2d 280 [third-degree assault charge sustained in altercation between football players which took place after players got up from a pile-up]; People v Lenti, 44 Misc2d 118 [indictment for third degree assault after fraternity hazing was sustained since the students did not consent to physical harm]), this rule has not been crystallized in this State. Moreover, a number of cases from other jurisdictions have held that the consent defense is not available to an assault charge in the context of sado-masochistic activities ( see generally , People v Samuels, 250 Cal App 2d 501, 58 Cal Rptr 439, cert denied 390 US 1024 [defendant charged with assault arising from sado-masochistic activities could not rely on consent defense ]; Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051 [same]; Iowa v Collier, 372 NW2d 303 [same]). Given the facts of this case, I would find that the court ’s instruction that consent was not a valid defense to the assault charge was not error.

Further , despite the evidentiary errors which require a new trial on the kidnapping and sexual abuse counts, I would find the complaining witness’s testimony was sufficient to support both of these convictions ( People v Arroyo, 54 NY2d 567, cert denied 456 US 979), and, in the circumstances , hot candle wax was appropriately considered a dangerous instrument ( Penal Law § 10.00[13]). Moreover, the complainant’s testimony was corroborated by a neighbor who heard sounds as if someone were "undergoing root canal" from defendant’s apartment at the time in question, by the complaining witness’s prompt outcries to five individuals, some of these individuals ’ observations of the complaining witness’ injuries, the lab results as to her clothing, and the e-mails sent between the complaining witness and defendant subsequent to the incident. I find no basis to disturb the jury’s determination to credit this testimony ( People v Prochilo, 41 NY2d 759).

In addition to dissenting from portions of the majority opinion, I am compelled to write separately to emphasize the fundamental importance of the Rape Shield Law, which is designed to assure that a defendant is not allowed to evade responsibility for his criminal acts by impugning the reputation of a complainant.

Footnotes

(1) "Instant messages" differ from e-mail in that they are used only when both people are on line simultaneously, and the messages, when sent, appear directly on the computer screen of the recipient, rather than going to a "mailbox" for later retrieval.

(2) <g> is used to mean "grin" in on-line shorthand .

(3) The complainant used the word "fingered" to indicate initiating an on-line conversation with a person she didn't previously know, whose user ID she obtained from a Columbia on-line ID directory .

(4) 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.

(5 )There is no available defense of consent on a charge of assault under Penal Law §§ 120.00[1] and 120.05[2] ( contrast, Penal Law § 120.05[5] [where lack of consent is an element).Indeed , while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder ( see, People v Duffy, 79 NY2d 611), as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act ( see, e.g., State v Brown, 381 A2d 1231, 1232 [NJ Super]; People v Samuels, 58 Cal Rptr 439, 447, cert denied, 390 US 1024; Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051; Iowa v Collier, 372 NW2d 303). And, although it may be possible to engage in criminal assaultive behavior that does not result in physical injury ( see, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law Article 120, at 119) , we need not address here whether consent to such conduct may constitute a defense, since the jury clearly found here that the complainant was physically injured. Defendant's claim that there is a constitutional right to engage in consensual sadomasochistic activity is, at the very least, too broad, since if such conduct were to result in serious injury, the consensual nature of the activity would not justify the result.

Motion seeking leave to file an amicus curiae brief denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 21, 1999

_______________________

CLERK

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