Banning "Rape" in the Courtroom

abyss2hope originally covered this story a week ago, but now it has hit the big time as Dahlia Lithwick at Slate (HT: How Appealing) has written a story about the unusual decision of a judge in Nebraska.  Basically, the judge has decided that an alleged "rape" victim cannot say she was "raped" in her testimony.  This is from a news account regarding the decision:

For 13 excruciating hours, Tory Bowen testified in court about waking up with a man she didn't recall meeting. She said he was sexually assaulting her.

Bowen, however, was barred from using terms like "rape" and "sexual assault" to describe her plight because a judge ruled they could be prejudicial to the defendant.

Defense lawyers applaud such rulings as aiding fair trials.

Bowen, as well as a Massachusetts attorney who has studied "judicial language" in rape cases, says judges are going too far in "cleansing" such language from the courtroom.

A 24-year-old former University of Nebraska-Lincoln student, Bowen said having to describe her assault as "sex" instead of "rape" was akin to lying on the stand. She said such restrictions discourage rape victims from reporting the crime.

"This makes women sick, especially the women who have gone through this," Bowen said. "They know the difference between sex and rape. If it was sex, I wouldn't be speaking to you."

This was what abyss2hope had to say about the judge's decision:

If the alleged victim isn't allowed to use labels such as "rape" or "sexual assault" then defendants and defense attorneys cannot be allowed to use labels such as "consent" or "mutual" to describe the situation or in questioning witnesses since that would be prejudicial to the alleged victim who has been barred from directly countering those claims.

The words "sex" and "we" and "they" should also be barred from descriptors in any questioning or testimony regarding the alleged sex crime or events which preceded those alleged crimes since they all imply consent and would prejudice a jury against the alleged victim.

And this was Lithwick's take:

You needn't be a radical legal feminist to cringe at the idea of judges ordering rape complainants to obliterate from their testimony any language that signifies an assault. At worst, that judge is ordering her to lie. At best, he is asking her to play at being a human thesaurus: thinking up coded ways to describe to the jury what she believes to have happened. If Mock, Safi's attorney, is correct in stating that "trials are competing narratives of what happened," why should one side have a lock on the narrative language used? Can it really be that the cure for the problem of ambiguous courtroom language is to permit less of it?

And there's another problem underlying Cheuvront's order: Jurors will not be told of it. Not only is the "dangerous" language to be hidden from them, but the fact that it's been hidden will be concealed from them as well. They are not merely too emotional to hear the phrase rape kit. They are also evidently too emotional to know it's been hidden from them in the first place.

I think the first paragraph I've included from Lithwick is especially important.  I certainly agree with judge's premise that a rape trial is filled with charged, emotional, and often inflammatory language.  And there is most certainly a battle between competing narratives (a battle that is more often in favor of the defendant).  However, to establish a rule barring victims from using certain words that are not simply "legal words," but important parts of how those narratives are created is just rigging the trial in favor of the defendant.  If the jury hears a victim say she "had sex" rather than say she "was raped" feeds perfectly into the various meta-narratives a defense attorney can use in a date-rape trial. 

Comments

[Ilah]

That's an outrageous decision, and Bowen's assessment of it is right on.

[George]

"Had sex" is a straw man. Is that really the only other choice? It implies in its simplest terms that when the prosecutor asks what happened, the accuser can only say one of two things.

He raped me.

He had sex with me.

That's ridiculous.

She can say, "I said, 'NO,' and tried to push him away."

Then what happened?

"He slapped me and forced his penis in my vagina."

The jury's job is to decide of that is rape.

This may be a bad opinion, but it is not either/or, had sex/rape, as argued.

[Gideon]

This is somewhat akin to calling the victim, "victim" in cases where that is an issue. I don't think this should be a bright line rule, because there are cases where the rape is not at issue (perhaps the identity of the rapist is), but in cases where the jury has to decide whether the rape actually occurred, this might be a good thing.

[Mickle]

According to Nebraska state law (assuming the site I found is accurate):

a) "rape" is not a legal definition at all, the only legal term is "sexual assault"

b) the legal definition of "victim" in sexual assault cases (possibly all crimes, I didn't check) includes the term "alleged"

Which means that the decision to ban those two words makes even less sense than it did before I knew this.

George,

The issue is not so much that she can only say "had sex" but that he can say "had sex" and she can't say "raped me." Yes she can describe in detail what happened, but she would have done that anyway one would imagine. But now he gets to summarize and provide a detailed description, while she has to just stick to a detailed description. It's not only unwieldy, it's unfair because it treats the defendant as more credible than the accuser. He is trusted to accurately sum up the events but she is not.

Gideon ,

The problem with that is that it ends up prejudicing the jury by treating the most common type of rape as if it were not quite a crime.

[Gideon]

Mickle, thanks for providing the statute.

In my experience, the word "rape" has been replaced by the words "sexual assault" in statutes. They are one and the same. So to whether the use of the word "rape" would be reaching a legal conclusion, I think it would.

I don't think this is fatal to any prosecution of rape, unless the prosecution is relying on the images the word "rape" conjures up. I don't see the difference (from a burden of proof point of view) between saying "He raped me" and "He had sex with me (Not we had sex) and at no time did I give him permission to do so" or "I did not want to have sex with him." "He forced himself upon me" "He did not have my consent".

After all, credibility of witnesses depends a lot on how they say things. So the same passion and disgust at the act can be conveyed, but just not using words that are legal conclusions.

[Ilah]

In some states, "by force" or "threat of force" is also an element of the crime the jury must conclude. Would the alleged victim then, by extension, be barred from using the word "force" because it is a legal definition?

Anyone who has read my posts here knows where I stand on issues of sex offender laws; I think most are ineffective at best, counter-productive in most cases, and damaging at the worst.

But this decision is something entirely different. It requires verbal tap-dancing that I see as unnecessary. Hiding the omission from the jury seems to be an admission that the word-ban indeed tips the scales.

[pat r]

If rape terminology cannot be used in the courtroom because of its potential to prejudice a jury, certainly, any term likely to prejudice a jury may also not be used, like molest, murder, kill, or rob.

Since all of those are technically prejudicial, it may be for the jury to decide whether those acts have occurred based upon the circumstances described.

Wouldn't any other approach necessarily "invent" the crime for which a person is charged?

[Barb]

As the fiance of a man convicted of "attempted" sexual assault, I think the child is given too much power. The kid even admitted that my fiance did NOT penetrate her TWICE, both in depositions and at the trial and the idiots on the jury still chose to charge him with the lesser included charge, which I think is UNCONSTITUTIONAL of ATTEMPTED sexual assault. So he is in prison because he maintains his INNOCENCE for 5-7 yrs. Had he plead guilty, which he did not because he is NOT, he would have received 2 yrs. probation, 6 mos. in jail on work release and 7 yrs. on the predator list. So you see, INNOCENT men don't have a chance!!!!!