The U.S. Supreme Court denied certiorari in a case (previously discussed here and here) involving a Nebraska judge who banned the word 'rape' in a criminal trial for sexual assault. The victim later sued the judge and appealed to the 8th Circuit Court of Appeals, who denied her claim. From The Associated Press:
While restricting Bowen's testimony, Cheuvront allowed attorneys for Pamir Safi to use such words as "sex" and "intercourse" to describe the encounter between Safi and Bowen.
Bowen says Safi sexually assaulted her in October 2004 while she was too intoxicated to give consent. Safi maintains the sex was consensual.
The Associated Press usually does not identify accusers in sexual assault cases, but Bowen has allowed her name to be used publicly because of the issue over the judge's language restrictions.
Bowen attorney Wendy Murphy said in an e-mail Monday that she was disappointed but not surprised by the high court's decision.
"Tory Bowen and this case will forever be known as the beginning of reform on this important issue, because we laid the groundwork for the inevitable day when judges will stop making such ridiculous rulings," Murphy said.
A mistrial was declared in Safi's first trial in November 2006 when the jury deadlocked. Bowen said afterward that the judge's ban had a negative effect on her testimony, causing her to pause to ensure her words didn't violate the order.
Cheuvront declared a second mistrial in July 2007 during jury selection, citing news coverage and public protests on Bowen's behalf.
The decision to deny cert. isn't at all surprising given the procedural disposition of the case. Because the victim, and not the defendant, was denied the ability to say "rape" during the trial, the case is not the result of a criminal appeal. Instead, the case arose from a subsequent civil suit by Bowen against the judge. That sort of litigation is just doomed to fail. Perhaps, if proposals like that of Paul Cassell, are enacted, victims might have a greater role in the criminal process. However, as of now, concerns like those of Bowen are largely unable to be properly litigated.
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