A judge has banned the use of the words ‘rape’, ‘victim’, ‘assailant’, ‘sexual assault kit’, and ‘sexual assault’ in a Nebraska rape case, accepting the defense argument that they are prejudicial. This has, it is said, left only the word ‘sex’ to describe what took place. (Though the defense has tried to get that banned as well for the re-trial: the first jury deadlocked.) Dahlia Lithwick at Slate writes,
Bowen [the complainant] testified for 13 hours at Safi’s first trial last October, all without using the words rape or sexual assault. She claims, not unreasonably, that describing what happened to her as sex is almost an assault in itself. “This makes women sick, especially the women who have gone through this,” Bowen told the Omaha World-Herald. “They know the difference between sex and rape.”
Of course, some, such as MacKinnon, insist that rape is very much a kind of sex (indeed, an all too common kind of sex). But Lithwick suggests that use of the word ‘sex’ carries a very strong presumption of consent:
The real question for Judge Cheuvront, then, is whether embedded in the word sex is another “legal conclusion”—that the intercourse was consensual. And it’s hard to conclude otherwise. Go ahead, use the word sex in a sentence. Asking a complaining witness to scrub the word rape or assault from her testimony is one thing. Asking that she imply that she agreed to what her alleged assailant was doing to her is something else entirely. To put it another way: If the complaining witness in a rape trial has to describe herself as having had “intercourse” with the defendant, should the complaining witness in a mugging be forced to testify that he was merely giving his attacker a loan?
It seems to me that there is indeed a widespread use of ‘sex’ on which rape is a kind of sex, but also a widespread use of ‘sex’ on which sex must be consensual. Given the latter, it certainly seems that forcing the complaining witness to use the word ‘sex’ is prejudicial. It also seems to me that whether the event which occurred should be described as ‘sex’ or ‘rape’ is precisely what’s at issue, and that both sides need to be able to describe the facts as they see them. Interestingly, Lithwick notes that it’s increasingly common to get words like ‘victim’ banned in courtroom proceedings. This seems to me somehow different. If a person is being charged with a crime, surely one has to be able to name that crime in the courtroom. And, importantly, Lithwick notes that nobody is trying to ban the use of the word ‘murder’.
Update: I’ve learned here that I made an error in the above description. It was the prosecution that tried to ban ‘sex’ and ‘intercourse’ in order to avoid the connotations of consent. The discussion at Sex in the Public Square also makes a very nice case for avoiding both the terms ‘rape’ and ”sex’– that testimony would be much clearer and better if it contained more explicit and precise terms than those.