No Such Word as Rape: Update

Last month, Jeff wrote about the Nebraska judge who had banned the use of words like rape, sexual assault, sexual assault kit, victim, and assailant from his courtroom during a rape trial. But on Monday, the accuser, Tory Bowen, who is just all kinds of brave, refused to sign an order agreeing not to use the terms.

Tory Bowen said testifying about the alleged attack will be difficult enough.

“And then I’m pausing three seconds because I don’t know if it’s a word that will lead to a mistrial or me being jailed or held in contempt. It’s frightening. That’s not something a victim should go through,” said Bowen.

Absolutely not—particularly because it’s impossible to convey that she was raped if she’s not allowed to use any “inflammatory” statements suggesting rape, which presumably include even stating that she did not give consent or that the defendant forced himself on her. Additionally, though Bowen faces sanctions and possible jail time if she doesn’t recognize and adhere to the judge’s stipulation, she notes quite correctly that to do so would necessarily require her to commit perjury. If she were raped, testifying she “had intercourse with” the defendant is not accurate.

This whole situation is complete madness.

Yesterday, Boston law professor Wendy Murphy, filing on Bowen’s behalf, requested a review of District Judge Jeffre Cheuvront’s decision by the Nebraska Supreme Court. Murphy has also filed the request with Cheuvront himself, but he “has not yet indicated to her when or if he will hold a hearing on the filing,” despite jury selection being underway and likely to be complete by tomorrow.

And speaking of voir dere: “27 of the 50 people in the jury pool have been dismissed from the case. Another 27 prospective jurors have been added to the pool to replace those.” The defendant’s attorney notes that “potential jurors were dismissed for a variety of reasons, including their personal experiences,” which is standard procedure and likely means that women (and men) who have been raped have been dismissed from the jury pool (because, of course, having been raped irreparably breaks your mind so you are no longer able to be objective). Of course, if the accuser isn’t even allowed to say rape a happened, I wonder why the judge didn’t instruct the defense they couldn’t dismiss jurors on the basis of having been raped? One might suspect he was trying to stack the court in the defendant’s favor or something…

Meanwhile, I’d just like to point out that this judge has turned a local rape trial, which is bad enough for a victim, into a national story. The judge says he banned the use of “inflammatory” language in the interest of justice, but I now know this woman’s name, what she looks like, what she sounds like, and that she says she was raped. Where the fuck is the justice in that?

UPDATE: And, btw, I also know the alleged rapist’s name, what he looks like, and that he’s on trial for rape. So…major kudos to the judge for that one, too, especially as his plan was designed to cosset the guy. Safe to say that plan backfired once the story went national, methinks.

36 Comments

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36 responses to “No Such Word as Rape: Update

  1. If this jackass had his way, he’d probably like to extend dismissals to those who’ve had premarital sex and other “inflammatory” acts. What a fucking wanker. There has to be some hidden wingnut factory where these fucks are bioengineered.

  2. I don’t get it. “Rape” is a legal term, just as “murder” or “assault” or “perjury” is. How can a legal term be inflammatory?

    If this was a murder trial, would he ban the word “murder” or “homicide”? What would he suggest be substituted? “Premeditated termination of the oxygen supply to the victim’s brain?”

    Okay, I’ll stop trying to be logical now.

  3. Tory Bowen is an incredible person. This is, unfortunately, how it needs to be done – one person, faced with the entire oppressive structure of society, standing her ground and saying,

    No.

    It’s horrible what’s been done and being done to her. But she deserves all the encouragement and praise that can be possibly heaped upon her for taking such a brave stand. Take ‘em down, Ms. Bowen.

  4. Jewel

    My heart hurts for Ms. Bowen and I am incredibly moved by her bravery. I wish she could know that I am thinking of her and wishing her all the best as she struggles for justice in a system that is stacked against her.

    As for that asshole judge…well, I’m just not gonna say anything because his ruling is so ridiculously WRONG and I am so ANGRY that my brain shorted out.

  5. Who has the ability to remove Cheuvront from this position exceeding his competence?

    That is the phone number we should be dialing now.

  6. Mustang Bobby, I think the idea is that “rape” is inflammatory *because* it’s a legal term–the judge is concerned that its use represents a legal determination that has to be left to the jury. Of course, I think he’s wrong, for much the reasons that Dahlia Lithwick gave in her piece in Slate (at http://www.slate.com/id/2168758/)–saying that she “had sex with” the guy isn’t neutral but suggests that it *wasn’t* rape. I could imagine a murder case where a judge could require witnesses not to use the word “murder” to describe what happened. Say, for example, the defendant clearly shot someone, but the question for the jury will be whether or not he did so in self-defense, in which case it wouldn’t be murder. What if then judge then asked a witness to describe what he saw–that is, the defendant shooting someone under whatever circumstances–rather than saying, “Then the defendant murdered him?” That would seem reasonable to me, though this order doesn’t.

    I also think it’s premature to make a judgement that the trial process was flawed because so many jurors were excluded. Typically during voir dire the judge will ask about jurors’ experiences, then ask whether or not they feel that they can be impartial regardless of those experiences–if they say that they can, they can’t be struck for cause, though they can be struck by either side using their peremptory strikes for nearly any reason. It can go both ways–I’ve sat in on voir dire in cases involving domestic violence in which jurors were struck because they had suffered domestic violence and because they knew people that they believed had been falsely accused of domestic violence.

  7. Allie

    Wow. Good for her. What an amazing woman.

    I wonder what a murder trial would sound like with the same restrictions “No, you can’t say assailant. Or murder weapon – that’s too inflammatory.”

    The perjury issue is real – what happened to her cannot be described as “intercourse” without making a mockery of the truth.

  8. Allie

    Ah Mustang Bobby was there before me… What he said.

  9. sari

    Tory Bowen is amazing. I love that she is framing the situation (correctly) as one in which the judge is basically ordering her to perjure herself. She’s a hero.

    Also – following up Mustang Bobby’s comment: I can’t imagine any crime in which it is possible to describe it without “using your words” (as we like to say to the toddlers). “Um, your honor, I was driving, and then I wasn’t driving, because my car was all smashed up and my airbag had deployed and when someone pulled me from my crushed car I saw the defendent standing by his crushed car and witnesses said they saw his car, um, make contact in some fashion with my car, but, um. . .

    Yeah. Right.

  10. I don’t get it. “Rape” is a legal term, just as “murder” or “assault” or “perjury” is. How can a legal term be inflammatory?

    I know. I’m not even sure how the charges can be read under this ruling.

    This whole thing is predicated on the erroneous assumptions that women just willy-nilly make rape accusations against men, that every rape complaint goes to trial, and that men are convicted all the time just because women say so.

    But all of those assumptions are total and complete bullshit, which this judge should certainly know! False reports of rape are lower than false reports of car theft. (And just about every other crime, btw.) Many legitimate rape cases never make it to trial because they are notoriously difficult to prosecute, and DAs will only go to trial with really strong cases. And of the cases that make it to trial, there are a hell of a lot in which convictions can’t be secured. If a rape case makes it to trial, the likelihood that a rape actually happened is pretty goddamned good, considering the accuser had to run the gauntlet of police and prosecutors and pre-trial motions, all of which try to destroy the case to make sure it can stand.

    And beyond that, there’s the whole issue of the victim having been willing to make the report in the first place and to be a spectacular witness on her/his own behalf, while withstanding humiliating questioning and a ruthless assail on one’s character. If they crumble, they don’t go to court.

    The movie The Accused (based on a true story) lays all this out pretty well. It’s an ungodly process, and the conventional wisdom about how a woman can “cry rape” and send a man to prison is so ludicrously out of sync with reality it would be laughable, if it weren’t even quite obviously pervasive even among judges.

    Btw, I think large parts of this myth were born out of racism, in which white women–or, even more frequently, white men on behalf of their white wives or daughters–would accuse black men of rape, knowing they would be convicted on quite literally nothing but the word of the white folks. That actually happened. And to this day, more men of color will be convicted of rape than white men, irrespective of the color of a female accuser.

    But it’s notable that most of the men who loudly and bitterly complain about women who can just point a finger and ruin a man’s life are white men, and they’re generally complaining about white women, and specifically, ex-lovers, wives, etc. In other words, they’re complaining that rape accusations are used as retribution, which is exactly how white men used rape accusations against black men.

  11. Good for her. This is a travesty of justice all around, it’s good that Bowen is willing to stand up for herself.

  12. Typically during voir dire the judge will ask about jurors’ experiences, then ask whether or not they feel that they can be impartial regardless of those experiences

    Oh, I totally get that, Thistle. I guess I wasn’t clear, but I was making a snarky comment about the fact that the defense could still remove jurors’ for experiences he doesn’t want the accuser to be able to claim she had. If that makes sense.

  13. This is one of the most terrible and stupid things I’ve heard of happening in a court of law. Good for Ms. Bowen that she’s willing to stand up to it, but no one should need to go through this shit. Looking at the accused lawyer’s reaction makes me want to scream:
    “Trials should be based on reason and the facts and the law. Not about who can think up the most juicy terms to apply,” he says. But how can you discuss the facts of the case if you can’t say what you believe happened?

    In another article, he claimed that it was because that would be ‘legal conclusion’ and those are for a jury to make – but unless he’s not going to claim his client is innocent, that’s a ridiculous hypocrisy!

    Idiotic.

  14. Arkades

    It’s mind-boggling that a judge would construe a simple, clear, descriptive word describing the alleged crime as being inflammatory and unfairly prejudicial, but sees no problem with requiring (inaccurate) euphemisms, nor with awkward, obfuscatory linguistic constructions necessary to testify about what happened without using the word ‘rape’ itself.

    Aren’t there already things such as burden-of-proof and such that are designed to make the process fair? When a judge restricts an accuser’s speech, that makes things easier on the accused while making things more difficult for the prosecutor, doesn’t that skew the balance? In what way is this just?

    Also… the judge is ignoring existing standards of jurisprudence in favor of stacking the deck to prod the case toward a desired outcome. Worse, if this sort of thing is allowed to stand, the precedent thus set might lead future rape cases to be argued in similar ways, all without any change to the laws themselves.

    Welcome to the brave new world of ‘conservative’ activist judges, folks.

  15. “Trials should be based on reason and the facts and the law. Not about who can think up the most juicy terms to apply,” he says.

    I meant to mention that in my post, that bit about how rape is a “juicy term.” Unbelievable.

    Thanks for picking that up, Chaos.

  16. Jewel

    Holy shit, rape is a ‘juicy term’???

    I’m gonna go be sick now.

  17. Arkades

    saying that she “had sex with” the guy isn’t neutral but suggests that it *wasn’t* rape. I could imagine a murder case where a judge could require witnesses not to use the word “murder” to describe what happened. Say, for example, the defendant clearly shot someone, but the question for the jury will be whether or not he did so in self-defense, in which case it wouldn’t be murder.

    The difference is that we have words to describe the action (killed) or the result (dead) in unequivocal language that make no presumption about whether or not the deed should be considered the crime of murder. One can describe an incident as ‘Jack is dead because Jill shot and killed him’ in a purely factual way without indicting *or* excusing the action. Perhaps Jill had a good reason for doing so, such as self-defense? Because different language exists to describe *what* happened as opposed to the intent, the implications, the *meaning* of what happened, we are not stuck in a linguistic bind. One may resort to neutral, factual language, because it’s there and it’s accurate.
    Unfortunately, no similar ‘value-neutral’ language exists for the crime of rape. Therefore, requiring the prosecution to avoid using the single word that represents the essence of the victim’s complaint (indeed, perhaps the entire case) is ludicrously unfair to one side.

  18. Arkades, that’s actually what I meant–maybe I didn’t quite finish my thought there. I was responding to comments where people thought it would be ridiculous to not be able to use the word “murder” at trial by pointing out that this is different from that due to the lack of a neutral alternative term to rape.

  19. fishboots

    Ms. Bowen is awesome.

    Finding out rape turns the judge on is enlightening. Or sickening. Both, really.

    Because it can’t be said enough, Ms. Bowen is awesome.

  20. Good luck to this young woman. It really looks like she’ll need it. Stupid judge.

  21. Nothing new to add here, except to echo everyone else who’s pointed out how impressive Ms. Bowen is. I’d lose my mind if I had to deal with this judge and this defense attorney (“juicy detail” indeed). I feel quite confident that this case is going to end with at least the judge removed from the bench (even in our current climate, common sense and decency’s going to prevail eventually). Until then, I hope Ms. Bowen can take some comfort in knowing how many people are thinking of her and are outraged at the injustices that keep getting perpetuated against her.

  22. It’s mind-boggling that a judge would construe a simple, clear, descriptive word describing the alleged crime as being inflammatory and unfairly prejudicial, but sees no problem with requiring (inaccurate) euphemisms, nor with awkward, obfuscatory linguistic constructions necessary to testify about what happened without using the word ‘rape’ itself.

    Everything I’ve heard said about euphemisms comes from Tory Bowen herself. She’s saying, “I shouldn’t have to say that I had sex with him.” Which she shouldn’t, definitely.

    But is that what the ruling really says? I haven’t seen a link to the actual decision, so I’m chary of drawing conclusions from news reports. And it’s highly unlikely that the judge is requiring her to say that she had sex with the guy, rather than simply excluding certain terms.

    Thistle explained the reason for the ruling — “sexual assault” is a defined term, and the prosecution has to prove each and every element beyond a reasonable doubt in order to get a conviction. They can’t just jump to the end and draw the conclusion for the jury. (“Rape,” apparently, is no longer the name of a charge in Nebraska, having been replaced by “sexual assault,” but apparently it’s been deemed to be too inflammatory because it’s too close to “sexual assault” as a colloquialism.)

    I don’t agree with this ruling, but I think Lithwick bought too readily into the idea that the only way to convey what happened was with consensual-sounding language like “he was having sex with me.” That’s not the case at all, and if the prosecutors know what they’re doing, they can prep her well so she knows how to convey the crucial elements powerfully without using the proscribed terms. She can certainly say she was penetrated, that she did not consent, that she asked him to stop, etc. And it’s the prosecutors’ job to ask her questions that will get the right information before the jury.

    This is a retrial, incidentally, and the same ruling was in place, from what I’ve read, in the previous trial. My wild guess is that because this is a case of a woman who’d been drinking waking up to find the guy she’d hooked up with raping her, the DA’s office didn’t take it too seriously and didn’t put the kind of prep work into it that they should have. So the witness wound up having to flail around saying things like “He was having sex with me,” and she’s really damn, justifiably angry about that.

  23. “I feel quite confident that this case is going to end with at least the judge removed from the bench (even in our current climate, common sense and decency’s going to prevail eventually).”

    I doubt very much that he’ll be removed from the bench. I would even say that while I disagree with his decision in this case, I don’t think he should be.

  24. it’s highly unlikely that the judge is requiring her to say that she had sex with the guy, rather than simply excluding certain terms

    Right. And he isn’t requiring that, but he’s also not just exluding certain terms, but “inflammatory language” that is suggestive of rape. (I’m getting that from local coverage, not Lithwick.)

    She can certainly say she was penetrated, that she did not consent, that she asked him to stop, etc.

    I’m not sure it is certain that she can say that, hence her claim that she’d necessarily have to perjure herself to testify about what happened under the limiting parameters.

  25. Right. And he isn’t requiring that, but he’s also not just exluding certain terms, but “inflammatory language” that is suggestive of rape. (I’m getting that from local coverage, not Lithwick.)

    I’ve been reading the local coverage, too, and it’s not really all that helpful because it doesn’t set out exactly what the ruling says. Because that’s the first thing you have to look at when you’re deciding stuff like this. And I thought I’d read something saying that they were kept out because they were “prejudicial,” which is a defined term, versus simply being inflammatory.

    I’m not sure it is certain that she can say that, hence her claim that she’d necessarily have to perjure herself to testify about what happened under the limiting parameters.

    Well, I’m not really willing to take her interpretation of the ruling at face value, given that she’s not a lawyer and she’s an interested party here (which is not to say that I don’t believe her when she says she was raped).

    I’m a little surprised she’s not under some kind of gag order preventing her from discussing the case with the press while jury selection is going on. But then, that might be part of the prosecution’s strategy — they probably can’t talk about it, but she’s not a party so she’s not under the direct control of the court (she’s considered a witness; the state is the party), so they let her get the idea that she was raped and that the ruling is unfair out into the public consciousness.

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  27. Also: it wouldn’t make sense for her not to be able to talk about penetration and lack of consent, since those are the elements the state needs to establish to get a conviction. She just can’t put all the elements together in her testimony.

  28. I thought I’d read something saying that they were kept out because they were “prejudicial,” which is a defined term, versus simply being inflammatory.

    I recall reading that in local coverage, too.

    I’m not really willing to take her interpretation of the ruling at face value, given that she’s not a lawyer and she’s an interested party here (which is not to say that I don’t believe her when she says she was raped)

    No, I totally get that. And honestly, I didn’t really consider it taking “her” interpretation of the ruling at face value, because, as you note, this is likely a prosecution strategy, which her attorney certainly knows, and my thought is that her attorney would be carefully guiding her public testimony, too. Letting her say something that the ruling would easily dispute doesn’t seem particularly wise. Or likely–but I could be wrong.

  29. Thing is, she fairly carefully dances around coming out and saying that she’s required to do anything or say anything, just that being prohibited from using certain words will lead her to perjure herself or lead to a mistrial or contempt citation:

    “And then I’m pausing three seconds because I don’t know if it’s a word that will lead to a mistrial or me being jailed or held in contempt. It’s frightening. That’s not something a victim should go through,” said Bowen.

    So she’s not really saying anything that could be disputed by the ruling — the perjury comes in, IIRC, where she said she’d be committing perjury if she said they’d had sex, since that’s not what happened.

  30. she fairly carefully dances around coming out and saying that she’s required to do anything or say anything

    She does, but the law professor who filed the review request on her behalf with the State Supreme Court is more explicit. From the linked article:

    Bowen’s credibility would also suffer, Murphy said, because she would be forced to mischaracterize the encounter with Safi by using neutral words like “sex” and “intercourse.”

    Now, as with any media, Wendy Murphy’s statement could have been unfairly paraphrased, but taking the reporting at its face value, Murphy is affirming what Bowen’s understanding of the ruling’s limitations appear to be.

    That’s also why, as I noted above, I wasn’t presuming to simply take Bowen’s interpretation at face-value, because it certainly seems as though the attorney’s interpretation is the same.

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  32. I don’t actually think Murphy is saying that the ruling says that she has to use the words “we had sex” to describe what happened. In fact, I think that’s pretty unlikely. What I think Murphy is suggesting is that if she can’t say, “he raped me” then she’ll have to say, “we had sex.” Which, actually, I think is untrue. In my experience it’s rare in any case that anything would be described in that conclusory a manner by a witness. You wouldn’t ever say, for example, “then he robbed me,” as a witness you’d probably say, “he grabbed my bag and ran off.” You wouldn’t say, “he then committed attempted murder,” you’d say, “he shot at me.” In this case, I find it kind of strange that the order is even necessary, because I can’t see a prosecutor eliciting the testimony “he raped me” rather than something more descriptive of the exact event.

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  34. CS

    The prosecutor doesn’t need to use the word rape to present the case.

    While the AP story acts like it’s unusual for the prosecutor to be banned from calling the defendant “the assailant”, prosecutors aren’t allowed to refer to the defendant in a murder trial as “the murderer” either. This isn’t something special this judge dreamed up for this case.

    There is no reason for the prosecutor to be talking about a rape kit. Both parties agree that they had sex, and there she isn’t accusing him of physically forcing her to have sex with him. There is no relevant evidence that a rape kit would provide. The mention of a rape kit would be prejudicial and completely unnecessary for presenting the case.

    The prosecutor and the woman claiming to be a victim have making lots of public, emotional accusations in an attempt to sway public opinion, which effectively taints the jury pool.

    The judge isn’t doing anything that prevents the prosecution from presenting it’s case. All he is doing is trying to prevent the prosecutor from swaying the jury with emotion filled accusations rather than evidence.

    The Associated Press is doing what the prosecutor is trying to do. They are trying to sway public opinion on this issue by making emotional accusations such as “Word-banning judge” rather that make a rational argument that what the judge is doing is unfair.

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