Rape Trial Judge: Don't say Rape!

[Gil Hamilton]

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.

Lawyers do that anyway, but the actual crime is "rape". That's actually what it says in the law. How can you have a trial if you can't say what the accused is accused of?

[Beowulf]

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"?

Right, but the prosecution typically tries to argue "The defendant brutally murdered John Doe." Often with those exact words. They don't try to dance around what they're accusing the defendant of doing. The defendant is being accused of rape, why shouldn't the prosecution be able to use the term that they're accusing him of doing?

[Plekhanov]

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.

Insisting that people refer to the defendant as the defendant is one thing and seems fair enough, banning the victim from using terms like 'rape' and 'sexual assault' to describe what happened to them and insisting they use convoluted circumlocutions instead is quite another.

[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"?

Right, but the prosecution typically tries to argue "The defendant brutally murdered John Doe."

Yes, they will say that they are attempting to prove this claim. That does NOT mean witnesses are allowed to state it as fact during the trial. If they do, the defense lawyer will voice an objection. If a witness is being questioned and says "Well, after Mr. Deff here murdered the victim, he went on to-", the defense lawyer will voice an objection.

[Patrick Degan]

To have to refer to a rape by euphamism simply obscures the issue at trial, and creates so much ambiguity that it raises the bar on what "proof beyond a reasonable doubt" would be.

[Darth Wong]

Really? Considering the fact that some peoples' definition of "rape" is "consensual sex between two drunken adults", I think this kind of ruling could be justified on the basis of clear communication alone. On the witness stand, one should give an account which is as factual and unambiguous as possible. Using a loaded term with so many different definitions (which not all jurors may even agree on) is hardly constructive toward that goal.

[Superboy]

Imagine a person is on trial for assaulting a child. A witness gets on the stand and says "I was walking down the street when I saw Mr. T assault little Timmy."

In reality, what the witness saw was Mr. T grabbing the arm of Timmy and pulling him along. The witness believes this constituted assault, and maybe the jury would too, but her account of events is obviously loaded if she used the word "assault".

If this woman gives testimony that says, “We headed into my room where he raped me”, it’s obviously very loaded even if she truly considers what happened to be rape. Maybe she considers it to be rape because she was drunk, maybe because she didn’t give verbal permission, or maybe because he physically forced her; whatever the situation was, the events should be described as they happened and the jury should be left to decide.

[Shinova]

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"?

As far as I can tell they're preventing her from saying that she was raped, not that the defendant is a rapist. What I mean is it's one thing to keep calling the defendant a rapist and another for the witness to say that she was raped in her testimony. For one thing, getting raped is what actually, according to her testimony, happened to her, while the defendant being a rapist is uncertain.

[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"?

As far as I can tell they're preventing her from saying that she was raped, not that the defendant is a rapist. What I mean is it's one thing to keep calling the defendant a rapist and another for the witness to say that she was raped in her testimony. For one thing, getting raped is what actually, according to her testimony, happened to her, while the defendant being a rapist is uncertain.

And "rape" means "unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against the will usually of a female or with a person who is beneath a certain age or incapable of valid consent", according to Webster's Dictionary. Are you telling me that this word actually gives a more accurate picture of what happened than a factual description of the event in question?

[Shinova]

And "rape" means "unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against the will usually of a female or with a person who is beneath a certain age or incapable of valid consent", according to Webster's Dictionary. Are you telling me that this word actually gives a more accurate picture of what happened than a factual description of the event in question?

Presumably when she gives her testimony she says a lot more than just "I was raped." What I find weird is that the judge prevents her from saying the word "rape" or the term "sexual assault". Just from the article if all she was allowed to say was "when the defendant and I had sexual intercourse" presumably with "against my consent" added to the end, that's not different from the textbook definition of rape.

If the judge wanted everything to be as clear-cut and free from misinterpretations as possible, I could agree, but I'm not getting that from the article.

[Plekhanov]

Imagine a person is on trial for assaulting a child. A witness gets on the stand and says "I was walking down the street when I saw Mr. T assault little Timmy."

In reality, what the witness saw was Mr. T grabbing the arm of Timmy and pulling him along. The witness believes this constituted assault, and maybe the jury would too, but her account of events is obviously loaded if she used the word "assault".

Which is what defence lawyers are for and they can solve any problems of 'loaded' terms by simply asking "what do you mean by 'assault'?", in the unlikely event that the prosecutor simply left things at that and didn't follow up by asking "how did Mr T assault little Timmy?".

If this woman gives testimony that says, “We headed into my room where he raped me”, it’s obviously very loaded even if she truly considers what happened to be rape. Maybe she considers it to be rape because she was drunk, maybe because she didn’t give verbal permission, or maybe because he physically forced her; whatever the situation was, the events should be described as they happened and the jury should be left to decide.

Well obviously and this is what already happens in all but kangaroo courts, the judge doesn't simply say "the witness says she was raped, case closed I find the defendant guilty".

The point is that it's quite possible to examine a claim that somebody was raped without banning them from using plain English descriptive terms like 'rape' and 'sexual assault' when they are trying to describe what happened.

Not only is banning such plain English terms unnecessary it's also rather cruel as making them perform linguistic gymnastics will make testifying for victims even more stressful than it already is.

[Ford Prefect]

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's called 'innocent until proven guilty'. Until the defendant is proven to have commited a rape, they are not a rapist. Referring to the accused as a murderer or rapist or what have you before they have been proven to be so is wrong. That is a basis upon which the courts are built, objective fact of the matter at hand.

Obviously this is not a hundred percent true, and I don't really know how it differs in America, but that is supposed to be how it works. Some lawyers are assholes, and will manipulate a jury to get the result they've been paid to, and some lawyers will get really passionate about getting their client justice. The court is supposed to be a place where facts rule, so I can get why the judge told her to stop calling the defendant 'the assailant'.

I don't know why he told her to stop referring to what happened to her as rape, however. Whether or not the defendant is guilty, it is still a trial for rape. During the reading of the charges, it would have been quite clearly stated 'x person has been accused of one count of forcible rape etcetera etcetera'.

[Darth Wong]

And "rape" means "unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against the will usually of a female or with a person who is beneath a certain age or incapable of valid consent", according to Webster's Dictionary. Are you telling me that this word actually gives a more accurate picture of what happened than a factual description of the event in question?

Presumably when she gives her testimony she says a lot more than just "I was raped." What I find weird is that the judge prevents her from saying the word "rape" or the term "sexual assault". Just from the article if all she was allowed to say was "when the defendant and I had sexual intercourse" presumably with "against my consent" added to the end, that's not different from the textbook definition of rape.

Yes it is. The textbook definition of rape makes a point of declaring that certain types of consent are not "valid". As I said, it's a loaded term with more than one meaning.

If the judge wanted everything to be as clear-cut and free from misinterpretations as possible, I could agree, but I'm not getting that from the article.

The judge wants that, and he wants to avoid any impression of undue prejudicial influence to the jury.

[Darth Wong]

Which is what defence lawyers are for and they can solve any problems of 'loaded' terms by simply asking "what do you mean by 'assault'?", in the unlikely event that the prosecutor simply left things at that and didn't follow up by asking "how did Mr T assault little Timmy?".

The question "How did Mr. T assault little Timmy" is an example of the Complex Question Fallacy. Merely by asking it in those terms, the defense lawyer appears to concede that Mr. T assaulted little Timmy. It's like the classic example question, "When did you stop beating your wife". The question contains an implicit declaration.

[Death from the Sea]

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's called 'innocent until proven guilty'. Until the defendant is proven to have commited a rape, they are not a rapist. Referring to the accused as a murderer or rapist or what have you before they have been proven to be so is wrong. That is a basis upon which the courts are built, objective fact of the matter at hand.

Obviously this is not a hundred percent true, and I don't really know how it differs in America, but that is supposed to be how it works. Some lawyers are assholes, and will manipulate a jury to get the result they've been paid to, and some lawyers will get really passionate about getting their client justice. The court is supposed to be a place where facts rule, so I can get why the judge told her to stop calling the defendant 'the assailant'.

I don't know why he told her to stop referring to what happened to her as rape, however. Whether or not the defendant is guilty, it is still a trial for rape. During the reading of the charges, it would have been quite clearly stated 'x person has been accused of one count of forcible rape etcetera etcetera'.

actually using terms such as "the assailant" is more for describing the suspect, when the victim cannot identify the suspect (although DNA evidence may be able to). And if there is a defense attorney or hell a prosecuting attorney that doesn't ask for more details as to what the victim means by "rape" then they are shitty attorneys.

And if the police reports are going to list the person that was sexually assaulted as the "victim" why can't they call them that in court?

Am I the only one that this kind of treatment makes you think that if victims of sexual assault see this is what they have to look forward to that they will just not report it? because that is a step in the wrong direction.

[Darth Wong]

Am I the only one that this kind of treatment makes you think that if victims of sexual assault see this is what they have to look forward to that they will just not report it? because that is a step in the wrong direction.

Sexual assault is a nasty business no matter how you look at it. The fact is that women can and do falsely accuse men of rape, and this is the kind of crime where it can literally boil down to one person's word against another. Hell, the definition of the crime in question actually revolves around validity of consent. One can argue that the rules we put in place to prevent false convictions may create a chilling effect on attempted rape prosecutions, but would you accept a greater incidence of false convictions in order to prevent that chilling effect?

[Plekhanov]

Which is what defence lawyers are for and they can solve any problems of 'loaded' terms by simply asking "what do you mean by 'assault'?", in the unlikely event that the prosecutor simply left things at that and didn't follow up by asking "how did Mr T assault little Timmy?".

The question "How did Mr. T assault little Timmy" is an example of the Complex Question Fallacy. Merely by asking it in those terms, the defense lawyer appears to concede that Mr. T assaulted little Timmy. It's like the classic example question, "When did you stop beating your wife". The question contains an implicit declaration.

My prose wasn't all that clear but I put that hypothetical question in the mouth of the prosecutor. Even if I hadn't the point remains that any half way competent defence lawyer isn't going to let a claim on the lines of 'he raped me', 'he assaulted me' and so forth go without challenging them and it's rather unlikely that the prosecutor would be satisfied with such anaemic testimony either.

[Death from the Sea]

Which is what defence lawyers are for and they can solve any problems of 'loaded' terms by simply asking "what do you mean by 'assault'?", in the unlikely event that the prosecutor simply left things at that and didn't follow up by asking "how did Mr T assault little Timmy?".

The question "How did Mr. T assault little Timmy" is an example of the Complex Question Fallacy. Merely by asking it in those terms, the defense lawyer appears to concede that Mr. T assaulted little Timmy. It's like the classic example question, "When did you stop beating your wife". The question contains an implicit declaration.

that is where it is the defense lawyers job to explain to the jury how the Mr. T didn't assault Timmy when taking Timmy by the arm and pulling him along, as it doesn't meet the requirement of "assault".

depending on Mr. T's relationship to Timmy, grabbing him by the arm is assaulting him. As in Texas assault is defined as "any unwanted physical contact" .... parent of course have much more leeway with punishing/correcting their kids.

Change "assault" to "hurt" and it says the same thing. Now if Mr. T is Timmy's dad and he was taking him home forcibly, then that is going to exempt him from the assault charge.

[Ford Prefect]

actually using terms such as "the assailant" is more for describing the suspect, when the victim cannot identify the suspect (although DNA evidence may be able to).

Referring to the defendant in a court case as the assailant is going to paint him as guilty before he has been proven to be so. It's manipulative language that has no place in a trial which is supposed to be based on fact. The only thing the defandant is only the defendant until proven otherwise.

And if the police reports are going to list the person that was sexually assaulted as the "victim" why can't they call them that in court?

I suppose the judge saw it as being much the same: if the defendant is not an assailant until proven to be so, then so to is she not a victim until proven to be so. Again, a court case is decided ont he body of evidence, and calling herself the victim would essentially be her stating that the defendant is guilty.

Am I the only one that this kind of treatment makes you think that if victims of sexual assault see this is what they have to look forward to that they will just not report it? because that is a step in the wrong direction.

I've related the story before, but one of my lecturers (who is a lawyer), once explained to us that a cross-examination can traumatise an actual victim of sexual assault to the point where they will refuse to testify (afraid of going through the ordeal a second time) in future. As Darth Wong said, sexual assault is a nasty business; when someone has been raped, having some stone faced lawyer picking at your statements is awful, even if they're not doing it in such a way to scare you on purpose.

[Superboy]

Which is what defense lawyers are for and they can solve any problems of 'loaded' terms

Yes, and if a witness constantly refers to a defendant as "the murderer" or "the rapist", the defense attorney would challenge that as well. It's still loaded and shouldn't be allowed. Just because a defense attorney might be able to lessen the effect of the word doesn't mean it's fair to use it.

It's called 'innocent until proven guilty'. Until the defendant is proven to have committed a rape, they are not a rapist. Referring to the accused as a murderer or rapist or what have you before they have been proven to be so is wrong.

Yes, but in many of these cases, it's not about proving whether or not the defendant is the guy who raped her, it's about proving whether or not what happened was rape. If it's an established fact that the defendant was the guy who had sex with her, referring to it as rape is the exact same thing as referring to him as "the rapist".

[Ford Prefect]

Yes, but in many of these cases, it's not about proving whether or not the defendant is the guy who raped her, it's about proving whether or not what happened was rape. If it's an established fact that the defendant was the guy who had sex with her, referring to it as rape is the exact same thing as referring to him as "the rapist".

I just had a moment of dawning comprehension. Thanks.

[Alyrium Denryle]

Am I the only one that this kind of treatment makes you think that if victims of sexual assault see this is what they have to look forward to that they will just not report it? because that is a step in the wrong direction.

Sexual assault is a nasty business no matter how you look at it. The fact is that women can and do falsely accuse men of rape, and this is the kind of crime where it can literally boil down to one person's word against another. Hell, the definition of the crime in question actually revolves around validity of consent. One can argue that the rules we put in place to prevent false convictions may create a chilling effect on attempted rape prosecutions, but would you accept a greater incidence of false convictions in order to prevent that chilling effect?

Considering the conviction rate for rapes is less than 10%, I dont think we will have that problem so much, with the false convictions. It isnt as if 90% of rape cases are false accusations.

Honestly, now many rape cases do you think are false accusations, vs the number of rapists that get off scott free due to the factors I wrote about in that massive essay in the other rape thread (or cultural cryptic misogyny if you want to talk about proximate stuff)? I think a bit of leeway for the prosecution is justified considering the hellishly low conviction rates.

[Darth Wong]

Considering the conviction rate for rapes is less than 10%, I dont think we will have that problem so much, with the false convictions. It isnt as if 90% of rape cases are false accusations.

Honestly, now many rape cases do you think are false accusations, vs the number of rapists that get off scott free due to the factors I wrote about in that massive essay in the other rape thread (or cultural cryptic misogyny if you want to talk about proximate stuff)? I think a bit of leeway for the prosecution is justified considering the hellishly low conviction rates.

You make it sound as if there are two teams, and we're trying to level the playing field. The guys being accused of rape aren't all on one team. The women accusing them of rape aren't all on the other team. Things you do to hurt the other team might simply end up hurting innocent people. Scorekeeping proves nothing.

[Alyrium Denryle]

Considering the conviction rate for rapes is less than 10%, I dont think we will have that problem so much, with the false convictions. It isnt as if 90% of rape cases are false accusations.

Honestly, now many rape cases do you think are false accusations, vs the number of rapists that get off scott free due to the factors I wrote about in that massive essay in the other rape thread (or cultural cryptic misogyny if you want to talk about proximate stuff)? I think a bit of leeway for the prosecution is justified considering the hellishly low conviction rates.

You make it sound as if there are two teams, and we're trying to level the playing field. The guys being accused of rape aren't all on one team. The women accusing them of rape aren't all on the other team. Things you do to hurt the other team might simply end up hurting innocent people.

True. But every time we prosecute someone for committing a crime we run that risk. When we make decisions about what we should and should not allow in court, we have to maximize the actual criminals convicted and minimize false convictions.

As it stands right now, we have gone so far in one direction (toward limiting false convictions, or if my evolutionary hypothesis is true, minimizing good convictions) that if we were to give the prosecution a bit of extra latitude, like... allowing the victim to say she was a victim...it probably wont increase the rate of false convictions. Especially because the rate of false accusations is probably pretty low, considering the stigma attached to being raped (do you think that a crime where only a tiny fraction actually get reported, that false accusations will be frequent?)

The defense at least in the US, is allowed to drag the accuser through the mud, but the prosecution cant call a duck a duck.

[Plekhanov]

Which is what defense lawyers are for and they can solve any problems of 'loaded' terms

Yes, and if a witness constantly refers to a defendant as "the murderer" or "the rapist", the defense attorney would challenge that as well. It's still loaded and shouldn't be allowed. Just because a defense attorney might be able to lessen the effect of the word doesn't mean it's fair to use it.

So which other descriptive terms for criminal acts do you want to ban in court? Stole, stabbed, shot, hit...?

Yes, but in many of these cases, it's not about proving whether or not the defendant is the guy who raped her, it's about proving whether or not what happened was rape. If it's an established fact that the defendant was the guy who had sex with her, referring to it as rape is the exact same thing as referring to him as "the rapist".

No it isn't, a witness saying 'he raped me' in response to a question is obviously rather different to habitually referring to the defendant as 'the rapist' throughout the trial.