New York Appellate Division Reports

PEOPLE v. JOVANOVIC, 263 A.D.2d 182 [1st Dept 1999] 700
Respondent, v. OLIVER JOVANOVIC, Defendant-Appellant.
Appellate Division of the Supreme Court of New York, First
Department. December 23, 1999

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. Page 183

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.



On this appeal of his conviction for kidnapping, sexual
abuse and assault, defendant Oliver Jovanovic asks us to
examine certain issues regarding the application of the
Rape Shield Law (CPL 60.42). We conclude that the trial
court’s evidentiary rulings incorrectly applied the Rape
Shield Law, and, as a result, improperly hampered
defendant’s ability to present a defense, requiring
reversal of his conviction and remand for a new trial.

The criminal charges arose from a date between Jovanovic
and the complainant which took place after weeks of on-line
conversations and e-mail correspondence. This appeal
focuses on a number of statements made by the complainant
in e-mails sent to Jovanovic. In these statements, she
indicated an interest in participating in sadomasochism.
Defendant’s purpose in seeking to offer these statements in
evidence was not to undermine complainant’s character by
demonstrating that she was unchaste. Rather, it was to
highlight both the complainant’s state of mind on the issue
of consent, and his own state of mind regarding his own
reasonable beliefs as to the complainant’s intentions.

Nevertheless, the trial court concluded that these
statements were inadmissible under the Rape Shield Law.
Initially, we hold that a careful reading of the statute
discloses it to be inapplicable to much of the evidence
precluded at trial. Moreover, the preclusion of this
evidence improperly interfered with defendant’s right to
confront witnesses. “`[C]riminal defendants Page 184 have
. . . the right to put before a jury evidence that might
influence the determination of guilt'” (Taylor v. Illinois,
484 U.S. 400, 408 [citation omitted]), and the trial
court’s discretion to exclude evidence must be
“circumscribed by the defendant’s constitutional rights to
present a defense and confront his accusers” (People v.
Hudy, 73 N.Y.2d 40, 57). Accordingly, we hold that a new
trial is required.

The Evidence at Trial

The People’s case against Jovanovic was primarily founded
upon the testimony of the complainant. She told a detailed
story of becoming acquainted with Jovanovic through
communications over the Internet, both by e-mail and by
so-called “instant messages”,[fn1] as well as in a number
of lengthy telephone conversations.

Their first contact took place during the summer of 1996.
The complainant, a Barnard undergraduate who was home for
the summer in Salamanca, a small town in upstate New York,
went on-line and logged onto a “chat room” called
“Manhattan”, hoping to find other Columbia students there.
In the course of a general discussion, she received an
“instant message” from Jovanovic, and embarked upon a long,
“instant message” private conversation with him. Their
first conversation quickly took on an intimate tone; for
instance, in response to Jovanovic’s information that he
studied molecular genetics and computational biology at
Columbia and ran a small multimedia design firm with his
brother, the complainant said “I may love you, hold a sec
while I check the profile.” When they shortly discovered
that they both spent a lot of time in a particular building
at Columbia, the complainant referred to “destiny” and
asked “want to have coffee?”

In this first conversation, Jovanovic indicated his
interest in the grotesque, the bizarre, and the occult. He
mentioned Joel-Peter Witkin, explaining that Witkin creates
photographs using corpses; he mentioned Eris, the Greek
goddess of discord, and a group called the “Discordians”
who, he said, try to “open people’s eyes”. The complainant
brought up her interest in snuff films [i.e., films in
which a person is killed], and her thoughts of making such
a film herself.

Then, on October 9, 1996, the complainant sent Jovanovic an
e-mail reminding him of their previous conversation, and
raised Page 185 again the subjects of snuff films and
pagan rituals. He responded by e-mail (from Seattle) the
next day, and she e-mailed back immediately. His next
e-mail was on October 16, 1996, by which time he had
returned to New York. She responded right away, continuing
the tone of her earlier correspondence with him (“bring me
anything back from Seattle?”). He did not write again until
October 20, 1996. When she responded that evening, she
(among other remarks) asked how tall he was.

He did not reply until November 10, 1996, when he asked “As
for my height, why? Are you looking to be dismembered by a
tall, dark stranger, or something of that sort? I’m
sometimes strange and dark, but of average height, so
perhaps you should look elsewhere. “[fn2] When the
complainant responded that same day, she wrote of the
Columbia tunnels and their appropriate ambience for a snuff
film. She asked if he had any ideas for murder plots. He
responded the next day, November 11, 1996, with the
suggestion that a film could be made of the true story of
Sharon Lopatka (a woman who was killed in October 1996,
allegedly by a man whom she had just met in person after
developing an on-line relationship with him).

Their exchange of e-mail between November 13, 1996 and
November 14, 1996 continued discussing fantasies for snuff
films, and the complainant’s purported interest in what she
termed “a tall dark dismember-er.”

In the complainant’s e-mail of November 17, 1996, just
after midnight, she told about having dragged a girl she
knew to the emergency room after the girl was raped the
previous night. The complainant’s long message ended by
describing herself as distraught. Jovanovic responded
shortly thereafter with his phone number and an invitation
to call if she wanted. She responded with “hey . . . is
this a plot to begin dismemberment,” and equivocated about
calling him. His e-mail replied “it’s up to you, just
realize that it is an option.”

The next night, November 18th, the complainant’s e-mail
“explained” to Jovanovic her connection to the girl whom she
had said was raped. The complainant told how she
“fingered”[fn3] and then spoke to “one Luke, who was
attached to one skitzophrenic (sic) stalker x-intrest (sic)
d’amour.” It was developed Page 186 in testimony that the
complainant had initiated an on-line conversation with Luke
on October 31, 1996, and began an in-person intimate
relationship with him shortly after that, and that Luke’s
ex-girlfriend, Karen Kahn, became jealous. It was this
ex-girlfriend, Karen, whom the complainant brought to the
hospital, following a telephone call in which Karen claimed
to have been raped. Luke’s trial testimony advanced his
belief that when Karen telephoned the complainant and said
she had been raped, she was motivated by a desire to
interfere with his relationship with the complainant, whom
he was supposed to meet with on the night of the phone

After Jovanovic sent an e-mail asking for details of the
story she had told him about Karen and Luke, on the night
of November 19, 1996 the complainant sent him a long e-mail
in which she provided more information about the afternoon
(November 1, 1996) when she had logged in and found e-mail
from Luke, and from Karen, whose e-mail had warned her to
stay away from Luke.

The complainant’s e-mail to Jovanovic on November 20, 1996
asked “So Oliver, you keep mentioning film after film, but
where pray tell am I supposed to find them?” She also
indicated an intense desire to know more about him, and
spoke of “too many taboos surrounding the questions I want
to ask”. Two hours later he replied “Taboos are meant to be
broken. . . . You’ll simply have to ask more questions.
Of course, that way lies dismemberment. Soon after that,
still on November 20, 1996, she e-mailed back, “I think you
may just be toying with the idea of dismemberment” and told
him that she has to push herself, see how far she can take
it, testing her limits. She also warned, “arms and legs are
not toys” and that “It could get sick. And just may.”

After more e-mails back and forth during the late
night/early morning hours of November 21, 1996, at about
2:30 a.m., the complainant referred to things getting “kind
of intimate,” and then, at about 5:00 a.m., Jovanovic ended
his message with “Should I call you, or you call me.” That
afternoon her e-mail message included her phone number,
with the message that she would be home around 3:00 that

He called at about 3:00 a.m. on November 22nd, and they
spoke for approximately four hours. According to the
complainant’s trial testimony, Jovanovic invited her to see
a movie with him that night, and she gave him the address
of her dormitory. Page 187

The Complainant’s Narrative of the Events of November
22-23, 1996

Jovanovic arrived at 8:30 p.m. on November 22, and
suggested that they get something to eat. When they
finished dinner at around 10:15, he said it was too late
for the movie they had agreed upon, and asked if she wanted
to see a video at his apartment instead. She said “I don’t
know” — explaining in her testimony that although
she did not want to, she has trouble being assertive.
Finally she agreed. He drove to three video rental outlets,
but did not find what he wanted. He said he had some videos
at his apartment, which was located in Washington Heights,
and they proceeded to drive there, arriving at about 11:30

Jovanovic gave her some tea, which she found to have a
chemical taste, and a book of photographs by Joel Peter
Witkin, depicting corpses placed in grotesque poses. They
watched a video entitled “Meet the Feebles,” in which
Muppet-like characters engage in sexual or violent
behavior. During the movie, Jovanovic left the room and
returned with some strips of fabric, which he placed next
to the futon they were sitting on.

When the movie was over, she said it was getting late and
she should go, but they began a conversation that ranged
from the subjects of East Timor, media control of the news,
and religion, to the subject of people with multiple
personalities. Jovanovic told her he had another
personality called the “Wise Philosopher” whom he can turn
into when he encounters pain. To demonstrate, he told her
to twist his wrist, which she did; she testified that he
appeared to be “in” a personality that did not feel pain.

When he introduced the subject of good and evil, the
complainant told him that she did not believe that evil
existed. He looked stern, and in a voice she also
characterized as “stern”, told her to take off her sweater.
He then repeated this directive in a louder voice. The
complainant testified that she did not know what to do,
thought it was a joke, but nevertheless removed her
sweater. Then he told her to take off her pants, and she
complied. He instructed her to lie down, and he tied her
legs and arms to the frame of the futon, one limb to each
corner; she explained that she did not protest because she
did not know what to think.

Jovanovic went to the kitchen and came back with some
candles, including a white candle in a glass. He sat
between Page 188 her legs and lit the candle in the glass.
At this point, the complainant testified that she
protested, asking him not to burn her, telling him to untie
her and demanding that he stop. However, when the glass was
full of molten candle wax he dumped it on her stomach. She
again protested, but he waited for the glass to fill with
wax and then poured it on her stomach. Next, he pulled her
panties away and dripped wax around her vaginal area, and
after her bra popped open spontaneously, he poured wax on
her nipples too. Then he took some ice cubes and placed
them wherever he had poured the wax. She screamed and told
him to stop, but his response was to ask why she was
screaming, and to say that suffering was a human condition.
At one point he gagged her and then blindfolded her. Next,
he proceeded to bite her nipples and her collarbone.

After about an hour of this behavior, he left the apartment
to move his car. When he returned, he cut the ties, picked
her up and carried her to his bed. The complainant said,
“don’t rape me, don’t dismember me, don’t kill me.” He
replied, “is there anything else you don’t want me to do?”
She said, “yes, don’t do anything you can get arrested
for.” When Jovanovic responded, “do you think I’m going to
get arrested for this?” the complainant replied that he was
going to have to kill her if he did not want to get
arrested. He said “that’s easily enough done,” and pinched
her nose shut and put his hand over her mouth for a minute,
until she felt a bit dizzy.

Jovanovic then began to speak to the complainant about the
need for women to learn self-defense, illustrating his
point by noting that the only victim who was able to escape
from noted murderer Jeffrey Dahmer was a person proficient
in martial arts. At some point, unclear from the
complainant’s narrative, he hog-tied her, so she was on her
stomach with her hands and feet tied together behind her

He next retrieved two batons from the closet, turned her on
her stomach, and penetrated her rectum with either a baton
or his penis, causing the complainant intense pain.

The complainant’s next memory was of waking some time on
Saturday, November 23, 1996, still hog-tied. Jovanovic
untied her for a time and attempted to give her some
instruction in self-defense. When she tried to run, he tied
her up again.

Then, that evening, while Jovanovic was trying to look at
her genitals, the complainant found that she was able to
untie her legs, and stood up. The complainant testified
that he then looked frightened. At this point, although she
said he still sought to restrain her, she continued to run
and to fight him Page 189 off, all the while putting on
her pants, sweater, and boots, picking up her bra, panties
and a sock, unlocking the apartment door and finally

Subsequent Events

The complainant took the subway to her dormitory at about
10:00 p.m., fell asleep, woke up, showered, and after Luke
called her at 1:00 a.m., she went to Luke’s apartment,
where she reported to him that she had been tied up,
sodomized with a stick, hit with a baton, and burned by
Jovanovic. The next morning she returned to her dormitory.

On Sunday night, November 24, 1996, she logged on to the
computer at her school library and retrieved an e-mail
message sent by Jovanovic the night before at 10:35 p.m. In
it, he said she had forgotten her gold chain when she left
the apartment, and that he could mail it if she gave him
her zip code, or he could drop it off. He also said, “I
have a feeling the experience may not have done you as much
good as I’d hoped, because you weren’t acting much smarter
at the end than you were at the beginning.” He closed with
the words, “I hope you managed to get back all right.”

The complainant sent Jovanovic a long e-mail the following
day, in which her remarks included assertions that she was
“purged by emotions, and pain,” and that she was “quite
bruised mentally and physically, but never been so happy to
be alive.” She said “Burroughs best sums up my state . . .
the taste is so overpoweringly delicious, and at the same
time, quite nauseating.”

They continued their on-line communications later that day.

The Redacted Statements

With the foregoing narrative by the complainant, the People
were able to present to the jury a compelling story of a
woman being drawn into a cyberspace intimacy that led her
into the trap of a scheming man. However, its compelling
quality was due in part to its one-sided and unbalanced
nature. This imbalance resulted from the trial court’s
ruling precluding Jovanovic from effectively challenging
certain aspects of the complainant’s presentation. Where he
should have been given free rein to explore the
complainant’s truthfulness, her accuracy in relating her
experiences and her grip on reality, he was instead
precluded from inquiring into several highly relevant
statements contained in the complainant’s e-mails to him.
Page 190

The following discussion sets forth the portions of the
complainant’s e-mails to defendant that were subject to the
court’s preclusion order.

First Redacted E-Mail

On November 17, 1996, in the complainant’s e-mail to
Jovanovic, she told him of “dragging” a girl to the
emergency room after the girl reported that she had been
raped. After further additional messages were sent back and
forth between the two that same evening, on November 18,
1996, the complainant wrote to explain to Jovanovic how,
over the Internet, she had first made contact with Luke,
who she described as “attached to one skitzophrenic stalker
x-intrest d’amour” (sic). One sentence was deleted from
this e-mail. It read,

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

Second Redacted E-Mail

Jovanovic’s e-mail of November 18, 1996 requested to hear
more details, and on November 19th, the complainant sent
Jovanovic a long message relating how she became involved
with Luke. She told of “fingering” Luke to chat with, and
how Luke’s “x-intrest”, Karen, was unhappy about the
complainant’s new friendship with Luke and sent the
complainant an e-mail warning her to stay away from him.
The court deleted from this e-mail the following
paragraphs, quoted here word for word (with misspellings and
other errors left intact).

“the boy calls, tells lots and lots of a life led like
burroughs: heroin addicted, bisexual atheist. My kinda
comrad. so he seduced me. come to Ufm, I did[,] come to my
appartment, I did[,] then he got me.

Oh he sighed and pulled out an agonized tale of being
young in Edinborough and on a field trip for highschool .
. . there were “very nice boys” (according to the
chaperons) who worked at the hotel, so said chaperons let
luke and his teen friends hang out with the big boys for a
night on the town. Unfortunately for poor luke, one took a
liking to him, (this is liking with twisted glint in the
eye mind you). yes yes, so young man took young boy (luke)
to empty hotel room, tied him to bed, straddled his ass,
knife to throat, no protection, come in all the way and
make it good . . . made it good . . . pull out laugh leave
him tied and naked and lock the door behind you. Luke
managed to get free, had to hand in his key to same man
the next day at check out. the man smiled that sick
`nordic grin’ and winked. Page 191

`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

Third Redacted E-Mail

Jovanovic answered, shortly thereafter on November 19th,
“[t]hen he got you? How suspenseful . . .,” although the
court precluded the first four words, “[t]hen he got you?”
The complainant’s response, on November 20th, contained a
further personal confession that the court also deleted
from the evidence, in which the complainant had replied,

“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.”

Fourth Redacted E-Mail

Jovanovic’s responsive e-mail on November 20th said,
“You’re submissive sometimes? Should have told me earlier.”
The complainant’s next message in reply, also on November
20th included the following critical information, which was
also redacted:

and yes, I’m what those happy pain fiends at the Vault call
a “pushy bottom”[fn4].

While the vast majority of the electronic correspondence
between Jovanovic and the complainant was introduced into
evidence, the preclusion of the foregoing statements,
particularly the last three, had an enormous impact on the
defense. Basically, it left the jury with a distorted view
of the events. Moreover, in the absence of proof that
Jovanovic had reason to believe, prior to their meeting,
that they both had intended to participate in consensual,
non-violent sadomasochism that night, his ability to
testify in a credible manner as to this defense was
irreparably impaired. Indeed, the limitation imposed by the
court served to insulate the complainant from being fully
cross-examined even as to those statements which were
admitted into evidence, which evinced or implied some
degree of interest in sadomasochism.

These messages were ruled inadmissible on the ground that
they were covered by the protection of the Rape Shield Law
Page 192 (CPL 60.42), in that they constituted evidence of
the complainant’s prior sexual conduct, having the effect
of demonstrating her “unchastity”. In addition to the
messages themselves, based upon the trial court’s
understanding of the Rape Shield Law, Jovanovic was
precluded from questioning either the complainant or Luke
as to whether the two had mutually engaged in consensual
sadomasochism. Although the court ultimately permitted
Jovanovic to ask Luke whether he had caused the bruise Luke
noticed on the complainant on November 23, 1996, the
defense was not permitted to inquire further into whether
Luke’s own conduct toward the complainant at any prior time
had caused any bruising.

For the following reasons, we conclude that the Rape Shield
Law (CPL 60.42) does not support the ruling precluding
Jovanovic from inquiring into the full complement of the
complainant’s statements to him.

The Statute

The Rape Shield Law represents a rejection of the
centuries-old legal tradition holding that, as Professor
Wigmore stated, “the character of a woman as to chastity is
of considerable probative value in judging the likelihood
of [her] consent” (see, 1 Wigmore, A Treatise on the
Anglo-American System of Evidence in Trials at Common Law
§ 62, at 464 [3d ed 1940]). 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 (see, People v. Williams, 81 N.Y.2d
303, 312; Ordover, Admissibility of Patterns of Similar
Sexual Conduct: The Unlamented Death of Character for
Chastity, 63 Cornell L Rev 90, 97-102). It is because
society now views such evidence as generally irrelevant
that the legislature enacted a law prohibiting the use of
such evidence: the law “bar[s] harassment of victims and
confusion of issues through raising matters relating to the
victims’ sexual conduct that have no proper bearing upon
the defendant’s guilt or innocence” (see, Preiser, Practice
Commentaries, McKinneys Cons Laws of NY, Book 11A, CPL
60.42 p. 9 [emphasis added ]; see also, Berger, Man’s
Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77
Colum L Rev 1, 15-22). Thus, it is critical to the theory
behind the Rape Shield Law that evidence of the victim’s
character for chastity is generally irrelevant to a rape

In accordance with this premise, CPL 60.42 provides that,
Page 193

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

1. proves or tends to prove specific instances of. the
victim’s prior sexual conduct with the accused; or

2. proves or tends to prove that the victim has been
convicted of [prostitution] . . . within three years prior
to the sex offense which is the subject of the
prosecution; or

3. rebuts evidence introduced by the people of the
victim’s failure to engage in sexual intercourse, deviate
sexual intercourse or sexual contact during a given period
of time; or

4. rebuts evidence introduced by the people which proves
or tends to prove that the accused is the cause of
pregnancy or disease of the victim, or the source of semen
found in the victim; or

5. is determined by the court after an offer of proof by
the accused outside the hearing of the jury, or such
hearing as the court may require, and a statement by the
court of its findings of fact essential to its
determination, to be relevant and admissible in the
interests of justice

(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

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 Page 194 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 N.C. App. 91, 428 S.E.2d 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 A.2d 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 F.2d 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 A.D.2d
889), and (2) a complainant’s prior claims of rape (see,
People v. Harris, 132 A.D.2d 940, 941). Additionally,
People v. Kellar (174 A.D.2d 848, 849, lv denied 78 N.Y.2d
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,

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 Page 195 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 N.Y. 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 Page 196 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

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 A.D.2d 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
N.Y. 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 Page
197 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 N.W.2d
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 F.2d 515, 523; State v.
Cressey, 137 N.H. 402, 628 A.2d 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 abuse[fn5].
The People emphasize that it is not whether she initially
consented Page 198 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 F.2d 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
Page 199 fear of jeopardizing that other relationship (see,
Olden v. Kentucky, 488 U.S. 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 U.S.
673, 680, quoting Davis v. Alaska, 415 U.S. 308, 318; see
also, State v. Colbath, 130 N.H. 316, 540 A.2d 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 U.S.
730, 736; Davis v. Alaska, 415 U.S. 308, 316). The trial
court’s redaction of the complainant’s statements to
Jovanovic, and its consequent Page 200 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 U.S. 227; see
also, State v. Colbath, 130 N.H. 316, 540 A.2d 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 U.S. 225, 241; see also, Michigan v. Lucas, 500 U.S.
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

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

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,” Page 201 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

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

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 Page 202 from offering the jury any
evidence justifying an asserted belief that the complainant
had indicated a desire to participate in sadomasochism with

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

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

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. Page
203 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 Page 204 effect under the
circumstances, its introduction was improper, and only
served to compound the prejudicial impact of the other

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.

[fn1] “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.

[fn2] is used to mean “grin” in on-line shorthand.

[fn3] 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.

[fn4] 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

[fn5] 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 N.Y.2d 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 A.2d 1231, 1232 [NJ Super]; People v.
Samuels, 58 Cal.Rptr. 439, 447, cert denied, 390 U.S. 1024;
Commonwealth v. Appleby, 380 Mass. 296, 402 N.E.2d 1051;
Iowa v. Collier, 372 N.W.2d 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.

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

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 A.D.2d 848, 849, lv denied 78 N.Y.2d 1128;
People v. Hauver, 129 A.D.2d 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 20th
e-mail was properly Page 205 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 20th
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 20th 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 N.Y.2d
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 Page 206 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 Page 207 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 Misc.2d 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 Misc.2d 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 U.S. 1024 [defendant charged with assault
arising from sado-masochistic activities could not rely on
consent defense]; Commonwealth v. Appleby, 380 Mass. 296,
402 N.E.2d 1051 [same]; Iowa v. Collier, 372 N.W.2d 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 N.Y.2d 567, cert denied 456 U.S. 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 N.Y.2d 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.

Motion seeking leave to file an amicus curiae brief
denied. Page 208

Judgment, Supreme Court, New York County, rendered May 29,
1998, reversed, on the law, and the matter remanded for a
new trial. Motion seeking leave to file an amicus curiae
brief denied. Page 209