Before he was charged with second-degree murder in the 1986 death of Kathleen Holland, 17, Joseph Porto calmly confessed on videotape that he had strangled his girlfriend till "my hands got tired," then used his high school graduation tassel to finish the job. Porto, now 19, gave a similar account to a prosecution psychiatrist, explaining that he had exploded in jealous anger when Holland told him she wanted to date other boys.
But when Porto took the witness stand at his trial on Long Island last month, he made a stunning recantation. He had invented the murder story, he tearfully claimed, because he was ashamed to tell the truth: Holland had begged him to wrap a rope around her neck to produce a state of near suffocation, called sexual asphyxia, that is said to heighten erotic pleasure. In his excitement, he said, he pulled too hard. Nassau County Prosecutor Kenneth Littman derided the new story as the "oops defense." But the jury found Porto guilty on only the lesser charge of criminally negligent homicide, a crime punishable by no more than four years in prison.
Holland's family was outraged. Last week her brother made public a 6,000- signature petition demanding that Porto get the maximum penalty. "Rough sex?" scoffs her father Denis, a retired policeman. "That phrase wasn't even part of my daughter's vocabulary." It had, however, become part of the public's vocabulary earlier this year during the "preppie murder" trial of Robert Chambers, who claimed to have killed Jennifer Levin accidentally during an unbridled sexual episode in Manhattan's Central Park. Last week Levin's father Steven held a press conference to protest such defense tactics. "It's become open season on women," he said. Porto Prosecutor Littman agrees: "Rough sex is the defense du jour."
Some are calling it a new twist on the old trial strategy of blaming the victim. "The she-asked-for-it defense doesn't work anymore," says Harvard University Law Professor Alan Dershowitz. "So now we're hearing she demanded it." The first use of that argument may have been in the trial last year in St. Louis County, Mo., of Dennis Bulloch, who faced murder charges in the death of his wife. Julia Bulloch's body, bound to a chair with adhesive tape, had been found in the burned remains of the couple's garage, which Bulloch admitted torching. He claimed that his wife had choked to death accidentally during an episode of sexual bondage. Though he faced the death penalty for murder, he drew only a seven-year prison term on the lesser charge of manslaughter. Frustrated prosecutors have now moved to try him for arson.
Much of the controversy surrounding the Porto trial hinged upon whether sexual asphyxia would have been part of a teenage girl's erotic habits. Porto Attorney Barry Slotnick, who defended Subway Gunman Bernhard Goetz, put an expert on the stand who testified that the practice was far more common than people realize, though deaths occur mostly among males engaged in solitary sex.