DISQUS

turneresq · 1 year ago

Interesting discussion. My guess is that the banning of the use of the word "rape" is b/c (1) of the prejudice/inflaming of the jury you mention and (2) the term "rape" is more of a legal conclusion that is improper for a witness to use. It's up to the jury to determine the ultimate fact (in this case, a "rape"), not the witness.

no · 1 year ago

your #2 makes no sense at all...rape is not a legal conclusion, it's the word that is defined as: sexual contact that usually involves force upon a person without consent or is inflicted upon a person who is incapable of giving consent

that's akin to me having my purse taken or my car taken and me not being able to say 'my car was stolen'.

turneresq · 1 year ago

You are free to say that certainly to friends, family, strangers. But in court, it's up to the jury to determine the ultimate fact. Of course a witness can testify as to what happened (i.e. "threw me on the bed, ripped off my clothes, I was screaming, I did not agree to have sex, etc"), but the term "rape" in a trial is most certainly a legal conclusion that the jury must determine based on the testimony/evidence. Thus, based on the facts testified to (assuming the witness was believed, of course) plus any medical testimony/independent witnesses/etc, the jury would come back with a verdict. Look at it this way: If a victim gets on the stand and their only testimony was, "that guy raped me," that would not be sufficient to nail the SOB, because there wouldn't be any facts to establish all of the elements of the crime.

tbhull · 1 year ago

She should be able to say whatever she wants. If the jury believes her story it does not matter how she describes it. Likewise, if the jury does not believe her story it does not matter what language she uses to describe her version of events. I assume the judge will allow her to describe that the accused forced her into sex against her will. Hell, the prosecution used the term "rape" in the indictment if that is how the crime is described in Nebraska stautes.

hunt · 1 year ago

if you think about it this makes perfect sense. rape is the crime he is charged with. the jurors are there to determine if she was raped, if the crime was committed by him. she will describe what happened. if the jurors determine that the elements of rape are met by their findings of fact, then he will be convicted of rape. so why can he say she consented? because consent is a defense. if he's found guilty, he'll likely be sent to prison for a long time (which is appropriate if he is guilty).

OneManComotion · 1 year ago

If the charge was rape then is not the word in play from a legal standpoint. when it comes to the trial????

This must have been a case in Texas, prove me wrong.

serge · 1 year ago

The presumption of innocence does not preclude the use of terms the jury must hear in order to determine guilt or innocence. How is it prejudicial? This is one hell of an 'activist judge.'

popebuck1 · 1 year ago

If the "presumption of innocence and the defendant's right to a fair trial" equates with the witness not being able to use the words "rape" or "sexual assault," then how can this logic justify having ANY prosecution for ANY crime? Why bother having a trial, if the accuser isn't allowed to actually accuse the defendant of anything?

LawMichigander · 1 year ago

Well this is really better left to law school. The Judge just wants the victim to use language that explains what happened instead of conclusory language, because it is the job of the jury to decide the conclusion. So she should say things like "when he forced me" or such. Most lay people will not understand this.

mirth · 1 year ago

BULL. SHIT.

I, a lay person, am perfectly capable of understanding prejudice.

Tell me, did having the charges of rape and sexual assault read out loud before the jury constitute prejudice?

Deadalus · 1 year ago

No, he's correct.

First, the issue is not prejudice. It's whether the facts of the case constitute the legal conclusion asserted. That is an issue that can only be decided through a careful description of the facts. Asserting legal conclusions is always forbidden in testimony. Believe it or not, there is a fine line between "rape" and "consensual sex" in many cases, and allowing the victim to repeat the allegation does not help the jury decide whether the defendant's actions meet the threshold requirement for a rape conviction.

Second, many men have been wrongfully convicted for rape. So prejudice works both ways, and your outrage could be just as useful in their defense.

mirth · 1 year ago

"...there is a fine line between "rape" and "consensual sex"...

Lemme guess. You're a male.

Deadalus · 1 year ago

Let me guess, you've never read case law on the subject?

Under the law, there are various standards for rape vs. sexual assault etc.

mirth · 1 year ago

Of course there are varying degrees for all acts of violence. That's why we have trials, for the circumtances of a crime to be argued. Totally beside the point. This judge barred the use of the very word this now convicted man was charged with: Rape.

Deadalus · 1 year ago

Because it's a legal conclusion. Rape has a long history of complex interpretation. (First, it was an affirmative defense in fornication trials).

It's just not a very useful descriptive term when laying out the facts of the case. The way trials work is that a jury hears the facts, the judge tells the jury what constitutes the crime under the penal code, and the jury determines if the facts have been proven sufficiently to convict the defendant.

Asking a victim on the stand if she was "raped" is about as informative as asking a witness if s/he believed 1st degree (instead of 3rd degree) murder was committed. It's not a useful question because the person testifying is not an expert on what that term legally means.

mirth · 1 year ago

If "rape" is not a very useful descriptive term, then why are defendants charged with it specifically? Answer: The word "rape" describes a generally-defined crime.

A victim doesn't just assert she has been raped and that's the end of it! Her (or his) accusation is made and then the details are examined and a judge oversees how that examination is conducted. That's how trials work.

Me arguing this further with someone who sees a "fine line" between forced and consensual intercourse is silly...and not a little repulsive.

Deadalus · 1 year ago

You can make that argument, but it obfuscates the complexity of the issue and disingenuously ends the conversation. Certainly anyone can define rape in the "easy" cases, but many cases fall into a "gray" area where courts have struggled to apply the standards.

The reason the term is not a useful description at trial is because it means different things to different people and yet should only mean, in the courtroom, what the statute defines it as.

If you care to bone up on the ins and outs of this issue, there is a plethora of academic writing on it in law journals that is easily found on lexis. You may find discussion of this "repulsive", but most scholars agree that defining "consent" is problematic, and as this is the crux of the issue, there is often a very fine line in difficult cases.

mirth · 1 year ago

I suggest you read the comment of attorney AnalyticalLiberal just above.

Deadalus · 1 year ago

I'm not sure what you want me to respond to there. The generalization that the "law never requires a jury to put aside common sense" is about as silly as it gets. The law varies from state to state and often could be characterized as requiring a jury to put away common sense. That assertion is just too ambiguous to have any meaning.

As I've said before, consent is often the crux of rape. In certain situations, this can make it difficult for a jury to determine if rape actually occurred. A judge may find it helpful to the defendant to forbid the Plaintiff from repeating the legal conclusion (as is forbidden by the Federal Rules of Evidence, and most state versions thereof) that she was raped and prefer instead that the victim describe the events and allow the jury to determine if rape occurred.

Like it or not, but defendants have rights that deserve to be protected, and this is not a cut-and-dry issue. Many, many, many men have been wrongfully charged and convicted of rape. Prohibitions of this type, in my view, do not give any unfair advantage to the defendant and may help ensure the defendant receives a fair trial.

You may see it otherwise, but I'm not clear as to how a Plaintiff's rights can't be upheld if she is not allowed to say the word "rape" on the stand. As long as she can describe the event, and a jury can decide the accusations are trustworthy and constitute "rape", then I don't see the problem.

mirth · 1 year ago

"Like it or not, but defendants have rights that deserve to be protected..."

When weak and, particularly, biased arguments fail, try insults.

pffffft

Deadalus · 1 year ago

I think anyone else reading this would agree that rather than responding to my argument, you have resorted to accusing me of insult where none existed at all.

Good day.

Deadalus · 1 year ago

Especially considering you earlier attempted to discredit my argument by appealing to my gender, of all things.

mirth · 1 year ago

Well, just consider the source - another scheming, conniving woman hoping to deprive defendants of their rights and to send innocent men to prison.

aquarius2 · 1 year ago

Rape is a term for what happened, breathe is a term for exchanging air in the lungs, swallowing is a term for moving something from the mouth to the esophagus, or walking is the action of placing one foot in front of another to move forward or back. One word to describe what the action is or was.

I have heard this before about rape cases., not being able to say a word that described the action. It is not fair to the victim and that is the reason so many rape victims refuse to even admit rape. They are treated like criminals or worse treated as if they CAUSED the rape. Screw this unfair to the accused, juries are not stupid (in most cases).

Bush_Bites · 1 year ago

I don't get it, myself.

Surely, this is not the first time a rape victim said "he raped me" in court. (Or a robbery victim said "he robbed me," etc.)

Why now is this an issue?

mirth · 1 year ago

The bastard was charged with both rape and sexual assault. Why bring him to trial if she couldn't use the words he was charged with?

This is beyond idiocy. And it is way more than infuriating.

njprogressive · 1 year ago

I take it this means that if I argue a speeding ticket in court the officer who pulled me over can not use the terms "speeding" , "speed" or "fast ".

This is absolutely disgusting.

OlderAndWiser · 1 year ago

Judge Jeffre Cheuvront who describes himself as a "simple country judge" (simpleton?) declared a mistrial in this case in July, 2007; a prior trial was a hung jury. Evidently Judge Cheuvront never heard of the 1st and 6th Amendments. I suspect the good ole judge made his own judgment early on when the victim allegedly stated she was "too drunk to give consent."

More on this case: http://safercampus.org/blog/?p=320

Indigo · 1 year ago

It's possible that the judge wants to hear exact, anatomically correct words used to describe the act in specific detail. That strikes me as wierd and I'd have to wonder about what the judge has in mind because it could easily turn into verbal porn. The woman might be embarassed but it's pretty obvious that the judge is looking for a way to get his rocks off in the courtoom. I'd say that constitutes double rape, once in physical action and a second time in judicial abuse. This is tailor-made for the ACLU. Where are they?

mirth · 1 year ago

Exactly my thinking.

SociologistTina · 1 year ago

Well, she could say that she used force, or threat of force, to get her to have sex with him. That seems reasonable-- but what if he conned her? What then?

ucsbclassics53 · 1 year ago

Ridiculous, and more evidence of the double standard in our court system...especially against rape victims. I can't think of another crime where the victim becomes even more of the accused...

TBLJ · 1 year ago

Counting this article this is the 3rd time I have heard this argument. I think it is ridiculous the word rape is not just a legal term it has become part of our vocabulary.

jr · 1 year ago

"strict constructionism"

iggy · 1 year ago

It's ridiculous. She's TESTIFYING. She's SUPPOSED to give her point of view.

If I'm robbed, am I allowed to say in court, "He robbed me"?

I hope so.

AnalyticalLiberal · 1 year ago

John,

This is all about framing. "Rape" is not simply and only a sex act; it is violence perpetrated by means of physical acts of forced sex. By not calling it what it is -- rape and/or sexual assault -- CHANGES the very nature of the violence. Your arson analogy is simply inapt when discussing rape. Put another way, EVERY rape is an assault and battery, but not every assault and battery is a rape -- a rape is a particularly heinous act of assault and battery. One more try: a plain old mugging becomes a "hate" crime when the victim was targeted because he was gay; so, too, a woman being mugged is also "raped" and is a "victim" when the assailant's weapon happens to be his penis.

P.S. I am a happy, well-adjusted hetero male who happens to also be an attorney. What this judge is doing is pure horseshit absurdly disguised as being "even-handed." The law has NEVER required that a jury put aside its common sense to carry out its duties; unfortunately, this judge wants the jury to look at an erect penis forced into an unwilling woman's vagina and then not believe their own lying eyes. This is the kind of stupidity by the few that give all lawyers and our justice system such black eyes. What a dumb-ass....

mirth · 1 year ago

Thank you for an excellent comment.

Antigone · 1 year ago

Very well said. And this type of garbage is the reason that far too many women and girls still refuse to press charges against their rapist. Because they know that nothing in his background can be brought up or used against him - even if he's raped eight other women. Whereas, any stupid thing she might have done in her past can be introduced into evidence to portray her as loose, a slut, a drunkard, always implying that somehow she asked for it. What that judge did is complete and utter bullshit.

moxiegrrrl · 1 year ago

I agree with those who commented that although it may sound ridiculous, the judge is trying to make sure the FACTS are presented. If the victim uses the terms rape and sexual assault, it further cements the guilt of the defendant in the mind of the jury (just think of how often Bush administration lies were repeated in the media until the general public thought they were true - how many people still think Hussein had something to do with 9/11?). It is up to the jury to decide whether rape or sexual assault occurred.

I have no doubt that the victim of rape/sexual assault can adequately describe what happened without having to use those terms. And, to be honest, I think a full description of the events will be much more powerful to a jury.

I would be interested to see if the case goes up the chain because of this. The legal process can be so frustrating and yet fascinating.

EDIT: I would like to amend my view of this particular case - the article referenced didn't make it clear that the judge forced her to use "sex" instead of other ways of describing her attack. I looked up the case and found further information about it. I would wholeheartedly agree that the judge should not tell someone to describe an assault as something indicative of something pleasantly intimate. If he wants to try and curb emotional responses from words he believes could contaminate the jury's views, that's one thing. Forcing a victim to describe an assault as sex has the complete opposite effect, and I highly support the lawsuit she is pursuing because of this.

joshmo · 1 year ago

As a daily reader (at least an hour of text/links a day, good job guys!) from way back, pre-Gannongate, Pre-TWEAK (bless him), I have read the archives I missed... Im a ablgeek!

I have not bothered to comment or register till today.

Are you serious? I agree with what many here are saying about fare trial, words bla bla bla... this case is maddening.

"I was being forsed into sex, uh, into engaging in an act of sex, er... uh against my will, hmmmm a thing that rhymes with ""ape"" only with more ""rrrrrrrrrr"" at the beginning" ...WHAT???

wtf

I have some juice around this clearly.

1stRepublic14thStar · 1 year ago

Are alleged rape victims supposed to come up with cute euphemisms in place of the "offensive" words?

"And then what happened?"

"Well, sir, then that man sitting over there wearing a blue suit, white shirt and red tie painted my portrait. I didn't want him to paint my portrait, but he broke into my house and the lights were off and he was wearing a mask and he had a knife and he told me he would cut and stab me unless I let him paint my portrait. I feared for my life so I told him to paint me in whatever style and colors he wanted, and I begged him not to kill me."

This is the stupidest ruling I can recall. Every day in courts around the country defendants are referred to as "the defendant." Every day in criminal trials all around the country the acts that these defendants are supposed to have committed are referred to as allegations or alleged crimes. Juries and judges understand the presumption of innocence, and they understand that an alleged victim will provide one version of events, and that the defendant will provide another, either by testimony or via the examination and cross examination of witnesses. In short, juries and judges expect that a rape victim will say she was raped, and that the defendant and/or his lawyer will say something else in rebuttal -- didn't happen, was consensual, wasn't me, etc..

There's no reason why Bowen can't say she was raped when she describes her version of events -- the jury and/or judge understands that it's HER version. The defendant and/or his attorney can then try to refute Bowen's testimony by calling witnesses of their own or by cross examining Bowen. It's then up to the jury and/or judge to decide what happened, and then, if he's convicted, sentence the defendant.

TerryInIowa · 1 year ago

I'm not trying to light a fire here, but I believe I understand what some of the commenters are trying to say. (I don't know what happened in the previous trial(s) in this case, but the testamony may have gone something like this.)
Victim: "We went out for some drinks and then went back to his place and he raped me."
Lawyer: "Please describe for the court what you mean specifically when you say he raped you."
Victim: "I mean he RAPED me!"
If the current judge, having looked at a transcript of that sort, decided to instruct the victim not to use the word "raped" to describe what happened to her, I can see his point.
The judge is looking for the actions that constituted the rape, such as...
"When we got back to his place, I passed out on his sofa and when I came to, I was naked, in his bed, and he was having sex with me."
This way the jury can do their job and say "Yep, that's rape."
So, there are conditions that I can imagine that would be good cause for asking the victim not to use the word "raped" when describing what happened to them. But certainly they should be allowed to say what happened to them, without it turning into a verbal porno.
It reminds me (a little) of people who get shocked (from an electrical outlet, cord, or a device with a faulty ground) and say "I got electrocuted the other day." To which I normally reply, "Oh, I'm sorry to hear about your death."
Sometimes I just get a blank stare, sometimes I get an actual description of the events.
Electrocution: Death by electric shock.

mirth · 1 year ago

Tell us, have you ever witnessed a rape trial or heard of one or read of one where the accuser was asked to tell what happened to her and she says He raped me and the jury replied Guilty!?

What do you think lawyers do?

munchkinpup · 1 year ago

John Aravosis
"The article doesn't explain enough of the judge's thinking, but I suspect he doesn't like her using a legal term, "rape," rather than just describing what happened. It would be like me testifying about my house being burned down and calling it arson. The judge thinks this could prejudice the jurors. But, the article notes, the judge has no problem with the accused rapist claiming that the sex was consensual, so why require the woman to put a nicer spin on her side of the story? Shouldn't the defendant and the victim each be permitted to tell their story unencumbered?"

Is this a trial for suspected arson are a trial for RAPE?? Your comparison of the two is idiotic. If your house burned down you MIGHT NOT KNOW if it was arson or not. But if someone BROKE into your home, you would know it was unlawful entry, correct?
The woman who was raped clearly KNOWS what happened to her own body. This is a perfect example of the war against women which has been escalating in this country. So now we have arrived at the point where the woman or her attorney may not call a violent sex act rape? How ludicrous is that?!
I will explain the judge's "thinking" for you. It has nothing whatsoever to do with the victim being able to "tell her story unencumbered", or her testimony being prejudicial. It is a sinister and questionably legal method being utilized by the "judge" to SILENCE THE VICTIM, and obscure her rights in a court of law. Exactly how is she supposed to describe all of the details of her assault if she has been effectively gagged concerning every aspect of her attack? Defendants and victims alike have generally been allowed to tell their sides of the "story" in a court of law. Fairly recently, we have seen various right wing judges in different states dispensing their misogynistic brand of justice. (Don't forget about the public spanking in court of a fourteen year old girl ordered by a judge in Texas, because her stepfather would not pay a questionable $500.00 fine.)

I'd like to know-- how would a man feel if he was mugged in a violent manner but was not allowed to call it being mugged or assaulted? What will we call murder suspects in a murder trial, and so on. This is a decisively clear abuse of the court system by yet another woman hating judge. Wonder what he would do if his own daughter (assuming he has one) was RAPED?
Also, if this is becoming a disturbing trend, more women will not want to subject themselves to such discrimination. Being raped is humiliating enough, but when will society ever comprehend that fact?