Rape Trial Judge: Don't say Rape!

[SirNitram]

Note the place..

It’s the only way Tory Bowen knows to honestly describe what happened to her.

She was raped.

But a judge prohibited her from uttering the word “rape” in front of a jury. The term “sexual assault” also was taboo, and Bowen could not refer to herself as a victim or use the word “assailant” to describe the man who allegedly raped her.

The defendant’s presumption of innocence and right to a fair trial trumps Bowen’s right of free speech, said the Lincoln, Neb., judge who issued the order.

“It shouldn’t be up to a judge to tell me whether or not I was raped,” Bowen said. “I should be able to tell the jury in my own words what happened to me.”

Bowen’s case is part of what some prosecutors and victim advocates see as a national trend in sexual assault cases.

“It’s a topic that’s coming up more and more,” said Joshua Marquis, an Oregon prosecutor and a vice president of the National District Attorneys Association. “You’re moving away from what a criminal trial is really about.”

In Jackson County, Senior Judge Gene Martin recently issued a similar order for the trial of a Kansas City man charged with raping a teenager in 2000. Despite the semantic restrictions, the Jackson County jury last week found Ray Slaughter guilty of forcible rape and two counts of forcible sodomy.

Slaughter’s attorney, who requested the pretrial order, declined to comment because she is preparing a motion for new trial. The judge also declined to comment.

Bowen’s case gained national notoriety and drew the attention of free-speech proponents after she filed a lawsuit challenging the judge’s actions as a First Amendment violation. A federal appeals court dismissed the suit, but Bowen’s attorney plans to petition the U.S. Supreme Court.

Although he dismissed her suit, a federal judge said he doubted a jury would be swayed by a woman using the word “rape” instead of some “tortured equivalent.”

“For the life of me, I do not understand why a judge would tell an alleged rape victim that she cannot say she was raped when she testifies in a trial about rape,” wrote U.S. District Judge Richard G. Kopf.

Wendy J. Murphy, an adjunct professor at the New England School of Law in Boston, is representing Bowen. She said the practice is “absolutely” unconstitutional.

“There’s no law anywhere that allows courts to issue these kinds of orders against private citizens,” Murphy said. “That doesn’t mean judges aren’t doing it.”

Prosecutors may object, but rarely do they have the time and resources to stop a trial midstream to appeal, she said.

But in cases where the defendant’s version of events is pitted against that of the alleged victim, “words are really important,” Marquis said.

“To force a victim to say, ‘when the defendant and I had sexual intercourse’ is just absurd,” he said.

Jackson County Prosecutor Jim Kanatzar said juries are smart enough to understand that in the adversarial system of justice, the state is going to take one position and the defense is going to take another.

“These are common terms that are used both in and outside the courtroom,” he said. “If someone says something that one side feels is prejudicial, it can be addressed in cross-examination.”

The issue is a discretionary call with judges, said Jackson County Circuit Judge Brian C. Wimes, who did not preside over Slaughter’s trial. Wimes said he typically would not grant a pretrial order limiting certain words, but he would verbally tell the attorneys to avoid using words in a prejudicial or inflammatory way.

Kansas. Can't we just burn the place?

[Durandal]

I can actually see the judge's point here, at least in the case of referring to the defendant as the "assailant". The whole reason there's a trial is to determine whether or not the defendant is an assailant, which makes such references prejudicial by definition.

And calling the accused party the "defendant" is just plain how you're supposed to refer to the person on trial. And the judge can enforce a strict policy of objectivity from all witnesses. The witnesses are there to testify as to facts of the case. How much emotion gets brought into it is pretty much up to the judge's discretion.

[Alyrium Denryle]

I can actually see the judge's point here, at least in the case of referring to the defendant as the "assailant". The whole reason there's a trial is to determine whether or not the defendant is an assailant, which makes such references prejudicial by definition.

And calling the accused party the "defendant" is just plain how you're supposed to refer to the person on trial. And the judge can enforce a strict policy of objectivity from all witnesses. The witnesses are there to testify as to facts of the case. How much emotion gets brought into it is pretty much up to the judge's discretion.

On the other hand, it is kinda hard to convict someone of rape when the victim cannot even say they were raped. What are they supposed to do, say "the defendant and I had sexual intercourse against my will, with a knife to my throat"

[Frank Hipper]

Kansas. Can't we just burn the place?

Why?

The Bowen trial is in Lincoln, Nebraska, and the other case mentioned was in Kansas City, Missouri.

[SirNitram]

Kansas. Can't we just burn the place?

Why?

The Bowen trial is in Lincoln, Nebraska, and the other case mentioned was in Kansas City, Missouri.

I'm a dummy.

[Durandal]

On the other hand, it is kinda hard to convict someone of rape when the victim cannot even say they were raped.

Why is that, exactly?

What are they supposed to do, say "the defendant and I had sexual intercourse against my will, with a knife to my throat"

That would be sufficient, yes.

[Shinova]

Is it really that bad to say "raped" instead of "sexual intercourse against my will"?

[chitoryu12]

Is it really that bad to say "raped" instead of "sexual intercourse against my will"?

Nobody wants to be thinking about how serious anything as harsh as this actually is, so they try to euphemize it by describing it in clean, professional terms instead of just calling it what it is.

[Tinkerbell]

Try to apply this to different types of cases though.

"When the defendant murdered... I mean... allegedly intentionally ended the life of the victim.. I mean, person to whom this case is referring to..."

If you are on trial for rape, you are on trial for rape. By all means, the victim is allowed to say what really happened to her.

[General Zod]

Try to apply this to different types of cases though.

"When the defendant murdered... I mean... allegedly intentionally ended the life of the victim.. I mean, person to whom this case is referring to..."

If you are on trial for rape, you are on trial for rape. By all means, the victim is allowed to say what really happened to her.

There's at least one problem I can see. The defense and prosecutors generally want details. Take an assault case, it's not enough to say that person x was attacked, but rather did you point a gun at his stomach and pull the trigger, stab him in the neck, break his knee, what? So I can see how just saying "I was raped" can be vague and difficult to pass a solid judgment with.

[Superboy]

I can understand the judges reasoning if there is disagreement over whether or not what occured was actually rape. There are cases where it's unclear what constitutes consent and in those cases I can see why it would be important to simply present the facts of what happened and the let the jury decide if that was rape.

[Invictus ChiKen]

Is it really that bad to say "raped" instead of "sexual intercourse against my will"?

Yeap. It implies to it's already been decided that has happened.

[Anguirus]

I feel that it is very relevant if the victim feels that she was, in fact, raped. It is the jury's role to decide whether or not she is misusing the word, and they do so by delivering a verdict.

It's not as if testifying stabbing victims are disallowed from using the word "assault."

[General Zod]

I feel that it is very relevant if the victim feels that she was, in fact, raped. It is the jury's role to decide whether or not she is misusing the word, and they do so by delivering a verdict.

It's not as if testifying stabbing victims are disallowed from using the word "assault."

It is however, extremely vague, and without being specific about what happened can be damaging to the case's credibility. Unfortunately rape cases tend to be far more emotional than most, which makes specific detail difficult.

[Alyrium Denryle]

I can understand the judges reasoning if there is disagreement over whether or not what occured was actually rape. There are cases where it's unclear what constitutes consent and in those cases I can see why it would be important to simply present the facts of what happened and the let the jury decide if that was rape.

Maybe in a case of drunk-rape, or date rape you might be able to make a case for uncertainty of consent. But what if there was clearly violence. Does, for example, a knife to the throat and subsequent cessation of resistance count as consent? Come on.

[Tinkerbell]

I feel that it is very relevant if the victim feels that she was, in fact, raped.

I agree entirely. It might just be the psych major in me, but rape is a horrible ordeal to begin with, and I don't think it's good for someone who has gone through that to then have the experience invalidated by not even being able to use the word.

[Death from the Sea]

Aside from the problem of the victim not being able to be called just that, a victim, because without a victim in case like this, there is no crime. So she has to be the victim. The suspect or defendant or alleged assailant is just that as well, a suspect, defendant or alleged assailant.

AND if the victim can positively identify the person as their assailant, then they should be allowed to call them such after that point.

Another problem is that if the word rape is so prejudiced against the suspect, then why has it taken more than 230 years for the word rape to be found prejudiced? basically there is alot more precedent set against rulings like this.

[KlavoHunter]

Note the place..

Don't say that, unless it's shorthand for "Florida". You'll confuse us otherwise.

[Gil Hamilton]

I don't see why rape is an inappropriate word, given that is is the actual word used for the particular crime in the US Code. It seems rampantly silly to not be able to use the actual term for the crime committed in a court trial.

(a) Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.

[Andrew_Fireborn]

Another problem is that if the word rape is so prejudiced against the suspect, then why has it taken more than 230 years for the word rape to be found prejudiced? basically there is alot more precedent set against rulings like this.

On that note:
Why did it take 82 years for slavery to be officially done away with?
How about it taking 137 for women to be able to vote in this country, in all states?

Yeah, the emotions tied to rape, and the hang'em'high and guilty until (and often past being) proven innocent aren't quite the same level of prejudice as those examples... But it's not like there isn't precedent for things going on for centuries that are less than fair.

[Plekhanov]

I can actually see the judge's point here, at least in the case of referring to the defendant as the "assailant". The whole reason there's a trial is to determine whether or not the defendant is an assailant, which makes such references prejudicial by definition.

And calling the accused party the "defendant" is just plain how you're supposed to refer to the person on trial. And the judge can enforce a strict policy of objectivity from all witnesses. The witnesses are there to testify as to facts of the case. How much emotion gets brought into it is pretty much up to the judge's discretion.

Giving evidence in court is hard enough at the best of times, which it's safe to say does not include giving evidence as the victim in a rape trial, forcing complainants to play word games when describing incredibly upsetting events on top of everything else they have to go through is just absurd.

Another problem is that if the word rape is so prejudiced against the suspect, then why has it taken more than 230 years for the word rape to be found prejudiced?

It would also rather beg the question as to why so many rape defendants are found not guilty?

[Plekhanov]

Is it really that bad to say "raped" instead of "sexual intercourse against my will"?

So do you also think that victims should be forbidden from saying they were stabbed and instead use some clunky euphemism like 'forcibly inserted a sharp object into my flesh against my will'?

'rapidly propelled his hand with clenched fingers into me against my will' instead of 'punched'?

'pierced my flesh with a projectile of lead propelled from a portable firearm using chemical explosives' instead of 'shot'?....

[Darth Wong]

Is it really that bad to say "raped" instead of "sexual intercourse against my will"?

What would you say if the prosecutors in a murder case kept referring to the defendant as "the murderer" instead of "the defendant"?

[Gil Hamilton]

What would you say if the prosecutors in a murder case kept referring to the defendant as "the murderer" instead of "the defendant"?

I'd say that my opinion of attorneys remains exactly the same. However, not referring to the crime the defendant is accused of is silly. If they are on trial for murder or rape, it doesn't make a whole lot of sense for any lawyer or witness that may be testifying to not say the actual name of the crime, but tip toe around it.

[General Zod]

What would you say if the prosecutors in a murder case kept referring to the defendant as "the murderer" instead of "the defendant"?

I'd say that my opinion of attorneys remains exactly the same. However, not referring to the crime the defendant is accused of is silly. If they are on trial for murder or rape, it doesn't make a whole lot of sense for any lawyer or witness that may be testifying to not say the actual name of the crime, but tip toe around it.

It does if it's a jury trial. When you're dealing with juries if you keep referring to someone as a murderer/rapist/whatever the jury will inevitably start thinking he's guilty and their opinions will be prejudiced against him. It's not as if lawyers try going for intelligent jurists who can see around those kind of rhetorical tricks.