‘Cyber-Sex’ Prosecution Fall-Out

‘Cyber-Sex’ Prosecution Fall-Out

Defendant convicted, jailed, later freed in ’96 S&M case can press lawsuit

Oliver Jovanovic’s lawsuit against NYPD Detective Milton Bonilla, former Assistant District Attorney Linda Fairstein, and the City of New York, arising from his 1998 prosecution in what Fairstein at that time touted as the “first Internet-related sex prosecution,” survived an important hurdle on August 17 when U.S. District Judge Paul A. Crotty rejected defense motions to dismiss the case.

Jovanovic was a 30-year-old Columbia University graduate student when he engaged in sexual conduct with Jamie Rzucek, a 20-year-old Barnard College undergraduate, that led to charges of rape, sodomy, and kidnapping against him. The New York media two years later provided sensationalized coverage of the so-called “cybersex torture” prosecution led by Fairstein, then head of the sex crimes bureau in the Robert Morgenthau’s D.A. office.

Jovanovic claimed he was innocent, but the jury thought otherwise and he was sentenced to 15 years-to-life.

After he had served 20 months—during which he claims to have been harassed, abused, and assaulted by fellow inmates, suffering life-threatening injuries from which he nearly died—Jovanovic was freed when the Appellate Division found that his trial was fatally flawed by the exclusion of evidence that would have helped his defense.

The Appellate Division’s decision in 1999 was notable for intimating, for perhaps the first time by an American appellate court, that consent might be a defense to criminal charges arising out of S&M sex that does not produce serious permanent injury. That position has been rejected by the European Court of Human Rights, the highest appeals court in England, and many other American courts.

Following Jovanovic’s release, Morgenthau’s office spent nearly two years futilely trying to get him to plead guilty in exchange for avoiding additional jail time, but finally moved to have the indictment dismissed “in the interest of justice.” The D.A. concluded that it could not successfully retry Jovanovic without the testimony of Rzucek, the alleged victim, who under the terms of the Appellate Division ruling could have been subjected to rigorous cross-examination. The motion was granted “with prejudice,” which means that no further prosecution of Jovanovic for the same acts would be allowed. In short, he won a final disposition consistent with his claim of innocence.

In October 2004, just under three years after the charges were dismissed, and after completing his doctoral degree with honors, Jovanovic struck back, filing a federal civil rights suit against the city, Fairstein, and Bonilla, claiming, among other things, false arrest, malicious prosecution, and denial of his constitutional right to a fair trial.

Crotty denied almost all the defendants’ motions to dismiss, authorizing Jovanovic to proceed with discovery in the case and, if no settlement is reached, a trial on the merits.

Crotty’s opinion recites a litany of amazing allegations by Jovanovic about how he was framed by Bonilla and denied a fair trial by Fairstein.

In November 1996, Rzucek reported to Bonilla that she had been sexually and physically assaulted by Jovanovic four days earlier. Jovanovic claims that the two met after a lengthy e-mail correspondence during which Rzucek expressed interest in having an S&M sexual experience. The judge at Jovanovic’s trial, however, applying the state’s Rape Shield Law, refused to allow him to introduce most of the evidence regarding that claim.

According to Crotty’s summary, Rzucek alleged “that Jovanovic had hogtied her for nearly 20 hours, violently raped and sodomized her, struck her repeatedly with a club, severely burned her with candle wax, and repeatedly gagged her with a variety of materials.”

Jovanovic denies any wrongdoing and claims that there was no physical evidence on Rzucek’s body or in his apartment to match her story, despite a search by Bonilla. Nonetheless, Jovanovic says, Bonilla falsely testified to the grand jury and repeated that testimony on the witness stand. Jovanovic also claims that Fairstein’s “highly inflammatory and prejudicial remarks” about him to the press made it impossible for him to have a fair trial. And he blames the city government for encouraging the kind of misconduct in which Bonilla and Fairstein engaged, pointing to similar conduct in other sensational sex-linked trials.

The defendants argued that Jovanovic’s lawsuit should be thrown out as untimely because of a three-year statute of limitations, but Crotty found that the clock on that started when the charges were dropped in 2001. Accordingly, Jovanovic’s lawsuit filing was ruled timely.

Bonilla and Fairstein also argued that Jovanovic had failed to allege specific facts necessary to prove false arrest, malicious prosecution, and an unfair trial, while the city contended that it should not be held responsible for whatever errors Bonilla and Fairstein committed.

Crotty rejected these claims, finding Jovanovic alleged actions and statements by Bonilla and Fairstein that if found true would entitle him to win his claims. The judge also found that Jovanovic’s allegations were sufficient to raise the issue of whether the city had a “custom” of similar misconduct regarding sex-related prosecutions that would entail financial liability.

Further, Crotty rejected outright Bonilla and Fairstein’s claims of governmental immunity, ruling that they enjoyed partial immunity from liability for routine errors of judgment in doing their work, but that Jovanovic’s allegations, if proved, would overcome such protection. There is no immunity from liability for using false testimony to prosecute a person and prosecutors are not protected from liability for what they say to the press outside the courtroom.

If the defendants don’t respond to this ruling by making an acceptable settlement offer to Jovanovic, the next step would be discovery, giving him a chance to question them under oath and lay the groundwork for proving his claims at trial.

Crotty’s opinion did not indicate the amount of damages Jovanovic is seeking.