There is No Such Word as Rape

rapeIt’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.

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43 Comments

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43 responses to “There is No Such Word as Rape

  1. I read Dahlia Lithwick’s piece in Slate, and I’m just stunned. The word for the crime being prosecuted cannot be said where the jury can hear it. Usually I find myself arguing that the criminal justice system is hugely biased in favor of the prosecution, but how is this fair to anyone? Especially the victim, who has to testify about what happened to her without being able to say, y’know, what happened to her.

  2. Thanks to that, my head has just collapsed in on itself. I fucking dare anyone to say this has nothing to with the insidious and innate misogyny and victim-blaming that’s woven into our society.

    Criminy, this makes me seethe with rage. I mean, what.the.fuck.

    Anyone want to take bets on the odds of having a future murder trial with the words “murder,” “killing,” “violence,” “weapons,” “victim,” and “assault” banned?

  3. Melissa McEwan

    Where’s Nightshift? I have a legal question!

    How is this even legal? By denying the accuser’s right to say “rape,” “sexual assault,” et. al., is that not denying her right to actually make her accusation?

  4. I don’t know the rules on interlocutory appeals in Nebraska (i.e. appeals before a final decision, which are not generally allowed, but there are exceptions), but I wonder why the prosecution hasn’t sought an interlocutory appeal of this idiotic ruling before the re-trial.

  5. I don’t know what the legal profession would call it, but this is judicial what, malpractice? Clearly this judge has already decided the case and is manipulating the trial so that his preferred outcome is the only one still possible.

  6. It’s legal, though this is pushing hard at the limits. Judges have a lot of leeway in setting the rules of their courtrooms, and can order attorneys and witnesses to avoid certain topics, words, or questions. The prosecution might be able to go over the judge’s head in this case and have him removed, but only at the cost of earning his eternal emnity. It wouldn’t be worth it, to them, to make his courtroom such a hostile environment for future prosecutions just to maybe get a conviction in this case.

    No, I’m not a lawyer. I just read a lot. 😛

  7. DBK

    Doesn’t the jury get to here what the charges are? They would have to. Don’t the charges contain words that would make it evident what the case is about?

  8. nightshift66

    The judge has virtually assured an acquital by this ruling, and I cannot fathom his (legal) reasoning for the decision. By forcing the narrative to be told in this fashion, I do not see how the prosecutors can survive a summary judgment motion, let alone get a jury verdict when the standard of proof is ‘beyond a reasonable doubt.’

  9. nightshift66

    Moira sums it up well. In both civil and criminal trials, the judge has enormous discretion in their rulings about how the evidence will be presented, what will be permitted, and so forth. Unlike TV, these questions are almost entirely decided by motion before the trial begins. That way, the jury doesn’t actually get a clue as to what is being excluded.

  10. oh , i have no words!

    but my head hurts!!!

  11. Kelley

    Clearly an abuse of discretion. I smell a judicial complaint as well. How the fuck can you have a rape trial without using the word rape? This judge’s decision is stunning in its ignorance, shortsightedness, and misogyny. Of course, this would never happen in other other type of criminal case. So much for equal protection under the law.

  12. Melissa McEwan

    Clearly an abuse of discretion.

    Seems like he’s handing the defense grounds for appeal from Day One, which makes the entire trial a likely waste of taxpayer money, too.

    Doesn’t the jury get to hear what the charges are?

    That’s what I was asking above. I mean, how can the accuser be said to have fair representation of her complaint if the jury never hears that the crime for which the accused is being tried is rape?

  13. Maybe I’m just cynical from my years as a reporter covering criminal trials, but this might just be a plain old fixed case. Sure smells like one… If the defendant’s family has money, I’d bet on it.

  14. nightshift66

    In law, proving an abuse of judicial discretion is extraordinarily difficult. It is probably a higher bar even than ‘beyond a reasonable doubt,’ especially when the ruling is (it will be argued) to ensure the rights of the criminal defendant. But it isn’t the defense that has grounds for an appeal here, it is the prosecution (technically, the State is the ‘plaintiff’ in a criminal case). This may be a situation that calls for an interlocutory appeal, which is an appeal taken prior to a final verdict in the trial. They are very rare, but the State is so handicapped by this ruling that it may be heard favorably by the appellate court.

  15. Wait, I have more to say.

    These fucking people are still angry that rape is even a crime. They want the 50s back where women were too ashamed to admit it happened. Ever. The fact that feminism gave women voices and empowered them to exercise their rights in a court of law is still pissing these motherfucking fucks off. They are trying to change the law so that rape is no longer a prosecutable crime.

    And you know those people who say “I don’t hate anyone. ‘Hate’ is such a strong word.”? Yeah, well those nicey nice bitchez need to read this article and decide if ‘hate’ is too strong a word for this judge. Because NOT.

  16. We have always been at war with Eastasia.

  17. The Slate article implies that this ban was in effect for his first trial which ended in a jury deadlock. Its hard not to think that this inexplicable ruling is why he wasn’t convicted. To restrict one side in a court case so much seems entirely unreasonable.

    Reading though the comments from the first jury, though, I’m hopeful that they’ll at least get this guy put away. The concerns jurors favoring acquittal had can be dealt with by the prosecutors. That’s why retrials almost always favor the prosecution. Still, they shouldn’t have to talk around the crime someone is being tried for. Its offensive and simply unjust.

  18. Maybe a local group can get access to the court room and perform a little activism of their own by shouting “Rape!” until they’re arrested. A mistrial and a public call for a new judge might have an effect.

  19. Kate217

    By denying the accuser’s right to say “rape,” “sexual assault,” et. al., is that not denying her right to actually make her accusation?

    Liss, that was exactly my initial reaction. The second was how is a jury supposed to define “reasonable” if they are kept in the dark about this ban? It’s like asking a next of kin to decide on an operation without outlining the risks of operating. There can, by definition, be no “informed” verdict if pertinent facts (the existence of the language ban in this case) are withheld from the jury.

  20. This really is insane. There’s obviously grounds for appeal, and I hope it succeeds.

    This makes me think of the film Anatomy of Murder. It came out in 1959, and back then it was a big deal that it referred to “panties,” “rape” and used other ‘language.’ Here we are in 2007, and a real judge in a real court room can’t be as frank as a fictitious one half a century years ago? There’s also a touch of Kafka to this, when this woman is prohibited from talking about the crime at the heart of the trial!

    (Trivia note: the guy playing the judge in the film, Joseph Welch, represented the U.S. Army in the McCarthy hearings and director Otto Preminger liked his style. Welch is the one who said, “Have you no sense of decency, sir?”)

  21. Time-Machine

    ???????????????

    !!!!!!!!!!!!!!!

    ?!?!??!?!?!?!?!?!?!?!?!?!!!

  22. Melissa McEwan

    But it isn’t the defense that has grounds for an appeal here, it is the prosecution

    That’s what I meant. Duh. Thank you for the correction, Nightshift.

    This makes me think of the film Anatomy of Murder.

    Spot on. Good call.

  23. biwah

    nightshift:

    abuse of judicial discretion is extraordinarily difficult. It is probably a higher bar even than ‘beyond a reasonable doubt

    Agreed with your general point regarding the wide discretion enjoyed by the judge, but I think you go too far. This could well reversed based on this decision as an abuse of discretion. Granted it’s a nebulous standard, but it requires a rational process to arrive at a reasonable ruling. If there is no legitimate goal and/or it does not advance the claimed goal, then that’s likely to result in reversal.

    As others have pointed out, the complaining witness is up there for the express purpose of alleging a crime, and it is no secret what crime is being alleged. Therefore no unfair prejudice can result to the defendant from the witness describing the act by its given name, whether or not that name is “conclusory”. The exception would be if the word a was a legal term of art, e.g. witness testifies that the gunman committed “felony murder” as opposed to saying “he killed that guy while robbing him”.

  24. biwah

    …but yes, that overlooks the double jeopardy prohibition. oops.

  25. Further, outside of procedural interlocutory appeals the prosecution cannot appeal a not guilty verdict. Criminal convictions may only be appealed by the defense.

    For a prosecutor to appeal a not guilty finding would put the defendant at risk of double jeopardy, which is prohibited by the 5th Amendment to the Constitution, or at least used to be.

  26. biwah

    outside of procedural interlocutory appeals

    But this would seem to be a ripe issue for interlocutory appeal, though I don’t know about Nebraska law.

  27. I think it’s crazy that the accuser can’t use the word for the crime in her testimony. This ruling seems ripe to guarantee an acquittal or hung jury. I wouldn’t expect this to happen in a robbery or murder trial.

  28. Did she go immediately to a medical center to have tests done and is that the reason even the words “rape kit” cannot be used? Also, did they test her for being unwillingly drugged? If she has some sort of “date rape” drug in her system and one she did not willingly take would that not prove her case?

    Also, I am on her side in this issue, just asking if the medical system is also on her side and got evidence that would prove her case.

  29. Liberality, I hope that you meant your comment to be helpful, but it isn’t a victim’s responsibility to prove the facts of her case, it is the prosecution’s, that is the people.

    From the post about the article, this criminal case has gone to trial TWICE, this means that a prosecutor and perhaps, even a grand jury (depending on jurisdiction) looked at the initial collection of evidence and decided there was sufficient evidence to proceed to trial.

    The issue here, is about the judge abolishing the very word that is used to describe the crime the defendant is accused of in the courtroom, not whether a rape kit was done at the time of the rape or about evidentiary rulings.

  30. LawdHelpUs

    You should check out the baptistsforbrwonback2008.wordpress. com

    They are starting a campaign to change the word ‘rape’ to ‘U.S.E.’ stands for Unplanned Sexual Event. They think it will take away the ‘stigma’ of being raped or as they call it a ‘sometimes unpleasant experience’.

  31. biwah

    I think liberality’s comment was just asking why the term “rape kit” was also prohibited at trial. It wasn’t attempting to absolve the state of its role in law enforcement.

    Things would get interesting if the woman defied the order and used the word rape in her testimony anyway. There would be a contempt finding, which could be appealed – or, if the jury convicts, the defendant will appeal, and there will be a de facto appellate ruling on the appropriateness of the trial judge’s ruling banning the words.

    And it would get catapulted into the media spotlight, which would be a good thing. She understandably may not be feeling like an activist in her current situation. However, it could be a shrewd strategic decision. (this last point also posted in the comments of another blog)

  32. Unplanned Sexual Event. It’s surprise sex!

    Outstanding. By that logic, it’s not murder, it’s an unplanned lethal event.

  33. nightshift66

    biwah,
    She would probably not face contempt charges if she only said it once or twice, say, during an especially emotional part of her testimony. If the defense were stupid enough to call attention to it by objecting, the judge would probably just issue that legal fiction, a ‘curative instruction,’ telling the jury in essence to “forget she said that.” Now, telling someone to forget something is the SUREST way to make them remember it, folks, which is why I say the defense would be fools to object to it.

  34. biwah

    nightshift:

    But the defendant would have to object at some point to preserve the appeal. Which is when things would get interesting. Objection or not, the witness holds some cards here.

  35. Kate217

    Unplanned Sexual Event?

    That describes almost every drunken tumble ever. It still doesn’t imply, let alone clearly state, lack of consent (at best), or violence (at worst).

  36. Outstanding. By that logic, it’s not murder, it’s an unplanned lethal event.

    I believe that’s called involuntary manslaughter.

    Which, unlike rape, actually makes sense since you can kill someone without being in physical contact with them. But, needless to say, no one would ever suggest making all murder equal to involuntary manslaughter.

    Many idiots seem to think that intent to be mean simply in order to be mean, rather than actually being mean, is why rape is bad. So to them, the idea that one can “accidently” commit rape actually makes sense. Their goal was not to ignore lack of consent, they just didn’t care about the lack of consent when it came to reaching their goal. Obviously, allowances must be made. (gag)

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  38. skywind

    Here in Florida, a judge will, upon request, order that the prosecution not refer to the complaining witness as the “victim” during a sexual battery trial. The legal theory is that she is not actually a victim until the jury determines that a crime occurred. Until then, she (or he) is usually called the “alleged victim” or the “complaining witness.”

    How is this different from calling a defendant an “alleged rapist” or “accused murderer” until the jury has rendered its verdict? Innocent until proven guilty, remember?

    Having said that, I’m a bit baffled by the judge’s prohibition of the use of the word “rape.” That seems a bit over the top.

  39. Innocent until proven guilty, remember?

    I think all of us have no desire to return to a Star Chamber system of justice, as perilously close as we are to that happening in today’s jurisprudence.

  40. How is this different from calling a defendant an “alleged rapist” or “accused murderer” until the jury has rendered its verdict? Innocent until proven guilty, remember?

    1) The victim is innocent until proven guilty as well. Adding “alleged” onto only certain types of crimes, or even worse only certain victims, suggests guilt on the part of the victims in those cases.*

    2) The phrase is “innocent until proven guilty” not “we assume nothing” for a reason. The assumption often is that a crime occurred, the question being debated is not whether a crime occurred, but whether the person being prosecuted is guilty of committing the crime.

    People get confused on this technicality because often the actual facts being debated in a rape trial pertain not to “did he rape her?” but rather “did he rape her?” That doesn’t change the general assumptions on which our legal system is founded (which is where the “alleged” comes from), nor the fact that the former is the question being asked more often than people realize.

    This last misconception is part of why rape-apologists usually get away with pretending that false identification = “crying” rape, because people tend to then think of rape in terms of “was she raped?” rather than “did he do it?”.

    *Does Florida do this only to rape victims? Or does this philosophy extend to other types of crimes? Maybe I’m wrong, but I can’t see people expecting the court or the prosecution to refer to a possible victim of murder as the “alleged” victim just because part of the evidence includes explaining why the seemingly natural/accidental death was not what it appeared to be.

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