Jovanovich

[Sandia]

Going back through old threads again...
(You knew I was lying when I said I don't have that much time on my hands, didn't you...? )

I found this one:

http://www.literotica.com/forum/sho...&perpage=20&highlight=piercedboy&pagenumber=1

I'm not bumping the thread, because it goes off track after the first two pages or so... but I am interested in this discussion.

In fact, I'm hoping to convince lavender to come back and post on it some more.

Short summary: (please go back and read the whole case, which lavender was kind enough to post on the original thread.)

A man and woman meet online. After some (somewhat) ambiguous talk about kinky sex, they meet in real life.

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. <g> ... You'll simply have to ask more questions. Of course, that way lies dismemberment. <g>" 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."

They go back to his apartment. The watch a movie, and spend some more time talking. At some point, he gets some strips of cloth out and puts them next to her on the futon they're sharing.

Her testimony:

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.

The man was originally convicted, but the appellate court overturned the decision (meaning he'd be tried again) because of what it considered a misapplication of the rape shield law of the state. (The trial court had redacted - discarded - parts of the evidence under the rape shield law.)

(One of) my interests in this case has to do with the issue of "consent."

My understanding is that consent is always a defense (well, technically, lack of consent is an element of the crime, that has to be proven by the state) in rape cases. I also believe that consent is a defense to most assault offenses. (Certainly a defense in Texas, and probably a defense in other states. I'll have to rely on others for this, since I'm too lazy to go look up the laws in all fifty states.) (Much less other countries.)

Consent is determined (in criminal cases) by the "reasonable belief of the defendant," or language similar to that effect. In other words, it's not a question of whether the complainant "really" consented, but whether the defendant reasonably believed that she had.

On the other hand, a person has the right to withdraw consent to anything at any time for any reason.

I'm curious if anybody has any thoughts on this, or on anything I've said here, particularly if you think I've got it wrong. I acknowledge that I'm especially anxious to hear from anybody with a legal background or knowledge, but welcome any comments at all.

Final note (this is clipped from one of cym's posts on the subject:

April 21, 1998

Dear Editor,

Judge Wetzel instructed the jury of the Jovanovic trial that consent is not a defense for assault. Yet if consent is given, how can it be assault? In this case, the alleged assault included candlewax, biting, and the use of a baton. These activities are often included in consensual sex games. If the woman consented to these activities, then it can't be assault. Only if she withdrew consent, by saying no or safeword, then those acts would become assault.

Would Judge Wetzel claim that "consent is not a defense for rape"? Of course not. If both parties consent, then it's sex, not rape. If both parties consent, then sexual activities that include candlewax and biting are also sex, not rape or assault.

The courts have already acknowledged that consent is considered a defense when it comes to contact sports. Consent is only denied as a defense in this case because it involves sexual behavior. It reveals how deeply sex is stigmatized in this country, when it's considered legally "assault" even if everyone involved is ready, willing and eager to have fun.

Susan Wright
Executive Director
National Coalition for Sexual Freedom

I believe (or at least hope) Ms. Wright was wrong about Judge Wetzel's instructions to the jury in this case, and am curious if anyone else has any information about this.

 

[Guest]

Can't be bothered to read after the mentioning of the name of Lopatka woman. Desperate or truely insane, I can't care less about these people.

Sorry Sandia, I don't know and uninterested in US law.

 

[artful]

Double damn you Sandia,...I had to read the whole thread. ALL because of you. It's your fault,...you made me do it,...I became addicted.

Seriously,...Thank you for the link. I thought the entire thread held posts that should be read by all. Like yourself,...I found it intrigueing and informative.

 

[Guest]

Okay, I read the first page. They are still fucking nuts.

Originally posted by Cym
1. This case is over and has been over for a long time. The initial conviction of rape was overturned and the charges dismissed.

2. This is not about BDSM except peripherally. It's about rape, or the charge or rape. It's about someone getting into a situation before she was ready to be there and then getting scared when stuff started happening. It's about playing safely and not, as you mom told you, talking to strangers.

Sandia, what's the point of asking a question which has been already answered?

 

[Sandia]

CV: I'd love to talk to you, but I got a feeling we ought to take it to the GB. OK?

Sandia.



Ed. to ad: http://www.literotica.com/forum/showthread.php?s=&threadid=101148

 

[Sandia]

Double damn you Sandia,...I had to read the whole thread. ALL because of you. It's your fault,...you made me do it,...I became addicted.

Seriously,...Thank you for the link. I thought the entire thread held posts that should be read by all. Like yourself,...I found it intrigueing and informative.

Thank you Artful.

I think it's important too. I'm hoping some folks who might know more than I will bring some more information in.

 

[lavender]

 

[Ebonyfire]

It depends on the state in the US

Each state can handle this situation as it sees fit. So if you have the bad luck to live in the wrong, state (US), or country (elsewhere) you could find youself in a heap of hurt!

Ebony

 

[artful]

EB

Each state can handle this situation as it sees fit. So if you have the bad luck to live in the wrong, state (US), or country (elsewhere) you could find youself in a heap of hurt!

Ebony

Does this mean we could find ourselves in double jeopardy by performing 69 across a state line boundary, especially if there is some ass slapping going on at the same time ?

(Sorry,...just couldn't resist)-LOL

 

[Ebonyfire]

Re: EB

Does this mean we could find ourselves in double jeopardy by performing 69 across a state line boundary, especially if there is some ass slapping going on at the same time ?

(Sorry,...just couldn't resist)-LOL

Lord I hope so!

Eb

 

[Lancecastor]

Now we're re-reading old law cases?

Ick!

I too got sucked in to reading the summaries clipped by Sandia.

And the comments by those of you who posted.

I saw some civil assault theory, some tort law, some crim and a whiff of individual state morality/indecency law in the course of the read.

Without seeing an unedited law journal summary of the case....well, we might as well go over to the GB and get into one of those "who really has more nukes?" circle-jerks with the undergrad poli-sci students from secondary midwestern "universities".

Sandia...surely there must be a beach or an ice cream stand somewhere near where you live.

Fresh air. You need some fresh air. Stat.


LC

 

[Sandia]

Hey, you didn't click the link, man.

Chanting: click the link, click the link, click the link...

'Sides, I've seen the world. It sucks. That's why I'm in front of my computer.

 

[Lancecastor]

Okay...I clicked the link...

Hey, you didn't click the link, man.

Chanting: click the link, click the link, click the link...

'Sides, I've seen the world. It sucks. That's why I'm in front of my computer.

....and I saw the summary, read most of it.

But...why, Sandia...why?

At least I'm yawning....silver lining...off to bed.

Cheers;
LC

 

[Sandia]

I will quote for you some passages, LC, to lull you off to sleep...

The words of the Teacher...

In much wisdom is much vexation, and those who increase knowledge increase sorrow... The wise have eyes in their head, but fools walk in darkness... For there is no enduring remembrance of the wise or of fools, seeing that in the days to come all will have been long forgotten... So I hated life, because what is done under the sun was grivous to me; for all is vanity, and a chasing after wind...

What do mortals get from all the toil and strain with which they toil under the sun? For all their days are full of pain, and their work is a vexation' even at night their minds do not rest. This is also vanity.

"For whom am I toiling," they ask, "and depriving myself of pleasure?"

Two are better than one, because they have a good reward for their toil. For if they fall, one will lift up the other; but woe to one who is alone and falls and does not have another to lift him up... if two lie together, they keep warm; but how can one be warm alone?

Sweet is the sleep of laborers, whether they eat little or much; but the surfeit of the rich will not let them sleep...

There is an evil that I have seen under the sun, and it lies heavy upon humankind: those to whom God gives wealth, possessions, and honor, so that they lack nothing of all that they desire, yet God does not enable them to enjoy these things...

Do not be too righteous, do not be too wise; for why should you destroy yourself?

Whatever you find to do, do it with all your might... God has long ago approved of what you do...

For there is no work or thought or knowledge or wisdom in the grave, where you are going.

 

[Siren]

 

[artful]

Ok great,...does anyone know of a definate conclusion of the situation ?

 

[Sandia]

Sorry, Artful, I don't think I'll be very helpful, but:

(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:

(1) the actor compels the other person to submit or participate by the use of physical force or violence;

(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;

(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;

*snip*

http://www.capitol.state.tx.us/statutes/pe/pe0002200.html#pe002.22.011

This is the law in Texas (PC 22.011). As you can see it doesn't turn on the issue of a "reasonable person." (I may have put my foot in my mouth with that one.) I actually think this is a better approach to the question. I am curious about the laws in other states, though.

In general, it's my belief that a defendant must do the conduct that makes what he did a crime, at least knowingly, intentionally, or (in some cases) recklessly, in order to be criminally accountable for it.

 

[artful]

Thanks Sandia

I was questioning if anyone knew the "outcome" of the scheduled re-trial. Has it taken place ? Is it still unresolved ?

 

[Sandia]

Artful:

Mr. Jovanovic, now 34, was convicted and sentenced in 1998 to 15 years in jail. But in 1999, the appeals court, in a scathing opinion that laid blame squarely on Justice Wetzel's decision on use of the rape shield law, overturned the conviction. As the court wrote, "The erroneous ruling in effect gutted Jovanovic's right to testify fully in his own defense."

http://www.cybercase.org/81701.html

Latest news (11/01/01): Case dismissed! All charges in the case were dismissed today by state Supreme Court Justice Rena Uviller in the interests of justice after prosecutors announced, without warning, that Jovanovic's accuser was too emotionally unstable to proceed. The dismissal followed on the heels of a Village Voice article published on October 31, 2001 by Nat Hentoff comparing the case to the travesty of the Lenny Bruce prosecution and calling for the DA to drop the case after offering a misdemeanor plea which Oliver refused to accept.

http://www.cybercase.org/index.html



NY Penal Code, Art. 130: http://wings.buffalo.edu/law/bclc/web/NewYork/ny3(a)(1)-.htm#tny130_00 (Similar to TX Penal Code).



A snippet of the Appellate Court ruling:

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.

The full opinion: http://www.courttv.com/national/1999/waiting/jovanovic_dec_doc.html

 

[artful]

Sandia

Thank you very much for the time you have spent in allowing me and others to view the thread topic.