It’s difficult to be a judge, I’m sure. You have to do your best to balance competing arguments in a way that is fair to all sides. You have to take pains to safeguard the rights of the accused, even when you think they’re probably guilty. And you have to ensure that attorneys are not predjudicing the jury by using inflamatory language.
But sometimes, in trying to balance all of those competing interests, a judge gets so lost in the minutia of balance that he loses all semblance of common sense. That appears to have happened in Nebraska, where Judge Jeffre Cheuvront has decided that the word rape cannot be used during a rape trial.
And not just rape. Sexual assault, victim, assailant, and sexual assault kit are all verboten during the trial of Pamir Safi, who allegedly raped Tory Bowen in 2004. And lest you think this injunction applies to attorneys, you’re mistaken; it applies to those testifying as well, including the victim herself.
Sex, of course, is still allowable as a “neutral” term. Though how it’s neutral in a case where one person is arguing that it was nonconsensual sex is beyond me. Sex doesn’t mean “sex or possibly rape.” It means sex. Which is all the defendant says happened here.
As Dahlia Lithwick notes:
Safi’s first trial resulted in a hung jury last November when jurors deadlocked 7-5. Responding to Cheuvront’s initial language ban—which will be in force again when Safi is retried in July—prosecutors upped the ante last month by seeking to have words like sex and intercourse barred from the courtroom as well. The judge denied that motion, evidently on the theory that there would be no words left to describe the sex act at all. The result is that the defense and the prosecution are both left to use the same word—sex—to describe either forcible sexual assault, or benign consensual intercourse. As for the jurors, they’ll just have to read the witnesses’ eyebrows to sort out the difference.
This appears to be a classic case of date rape. Lithwick summarizes the case:
Bowen met Safi at a Lincoln bar on Oct. 30, 2004. It is undisputed that they shared some drinks, and witnesses saw them leaving together. Bowen claims not to have left willingly and has no memory of the rest of that night. She claims to have woken up naked the next morning with Safi atop her, “having sexual intercourse with her.” When she asked him to stop, he did.
Bowen testified for 13 hours at Safi’s first trial last October, all without using the words rape or sexual assault. She claims, not unreasonably, that describing what happened to her as sex is almost an assault in itself. “This makes women sick, especially the women who have gone through this,” Bowen told the Omaha World-Herald. “They know the difference between sex and rape.”
Perhaps, you think, there’s a loophole here. Surely, you the jury will be told of the prohibition on these terms, right? No, of course not. The jury will be told nothing. They will simply hear a woman describing how she passed out from something, and woke to find herself “having sex” with someone.
And then translate it in order to come to a conclusion.