‘Rape’ banned in rape case

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.

8 thoughts on “‘Rape’ banned in rape case

  1. I know this sounds appalling, and I’m not defending the particular decision because I don’t have the facts at hand. However, judges do prevent witnesses from saying things like ‘and then he murdered him’ precisely because to do so is to draw a legal conclusion, and that is the jury’s job. There are multiple kinds of murder trials — ones where there is no body and there is a question on whether the alleged victim is even dead, ones on which they are clearly dead and the question is whether the death was due to natural causes, accident, or intentional killing, and ones on which the only question is ‘was the defendant the murderer?’. What the witnesses are allowed to say will depend on which kind of trial it is. If it’s the first or second people will not be allowed to use the word ‘murder’. (These sorts of issues are why you see forensic scientists saying things like ‘his injuries were consistent with blunt force trauma’ rather than ‘his injuries were caused by blunt force trauma’. Facts about causation are part of what the jury has to decide in a trial.

    I don’t deny that this is traumatic for the victim, and as I said, without seeing the decision and the defense and prosecution motions one can’t really decide if it is the right call. Maybe there is an argument to be made that in the case of something like rape it is never the right call. But since in a case what is at issue is not ‘is this the man who raped her’ but ‘was it rape at all’, the judge’s ruling is absolutely consistent with judgments made in other kinds of crimes. Lithwick is wrong to suggest that rape is here being treated differently from murder or other crimes.

    Incidentally, if the victim can handle it this is a huge opportunity for the prosecution to produce very compelling detailed testimony of exactly what happened to her that will likely be very effective with a jury.

    For more comments along this line from an actual lawyer check out Zuzu’s comments on the Feministe Thread: http://www.feministe.us/blog/archives/2007/06/20/naming-2/

  2. Grr: “in a case what is at issue” should be “in this case what is at issue”

  3. Of course, the most charitable reading of the judge’s decision is that, in his view, the word “sex” is a purely descriptive word, devoid of any judgmental elements explicitly built into words like “rape” and “assailant” contain. If feminists think that “sex,” too, as the word is commonly used in the courtroom or otherwise, is imbued, albeit not explicitly, with similar judgmental elements, then I wonder what word/phrase ought to be used for purely descriptive purposes? For example, is “intercourse” more neutral? (The prosecutor’s motion to ban the words “sex” and “intercourse” eludes me.)

    Dahlia Lithwick writes: “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?” This analogy seems unfair.

    However, rhe analogy between “rape/sex,” “victim/plaintiff,” and “murder/killing” seem very strong, and I take it that the jurisdiction’s reasoning behind banning the use of “rape” in favor of “sex” must mirror that behind banning “victim” in favor of “plaintiff” (or something along those line). So, it is interesting that “murder” is still permitted in a courtroom.

  4. Hmm. I can see Nicole’s point, but I’m not so sure about the analogy to limits on expert witnesses. They have to limit their testimony to what they really know (yeah, yeah, of course problems lurk), hence phrases like “consistent with a letter opener” rather than “caused by Exhibit A”. But surely the complainant does in fact know whether she consented. (She could lie, but that’s a different point.) Is the worry that she doesn’t know whether the defendant knew that she had not consented? The Feministe posts suggest a nice way around the restriction, by the way: very graphic descriptions of what body parts were put where, by whom. Laura’s right about Lithwick’s analogy: inserting “loan” ruins it, I think. If she’d gone with “giving X my money”, though, I think the analogy would have been OK.

  5. You all seem ready to cut off your nose to spite your face…most rape victims are women…on the surface it would seem that women who deem themselves feminists could be assured that a rapist would get what they have coming to them, should they be found guilty of said crime…however, I sense the reluctance in the femenist movement to see this happen…all for the purpose that if rapists are preying on vastly more women than men (which they do), that maybe, at least in one regard, women are not the equal of men, and thus require more protection, with the end result of ruining the whole “we’re all the same” attitude that femenists have…once again, cutting off your nose to spite your face by siding with men who are animals and commit the henious crime of rape…I hope you can all live with the disfigurement.

  6. Judge Cheuvront’s ruling on the defense motion was wrong. A defendant has a right to be judged by a jury of his/her peers if so desired, and one aspect of that right is the presumption that said jury will include those with preferences, prejudices and opinions that roughly mirror society. To limit the power of prosecutors and witnesses to persuade the jury using language that is commonly used within the English language to describe or characterize the events depicted is wrong unless it is required by statute, precedent or the constitution of the country or state the case is tried in. It asks jurrors to not act as they would in their everyday life but instead act based on sanitized and thus at times non-persuasive language when the entire point of introducing evidence and hearing from witness is to pursuade the jurrors to feel one way or the other.

    Furthermore, the fact that the lead defense attorney is arguing that word rape leads to a legal conslusion is particularly absurd. The word rape was removed from Nebraska’s state statutes in 1977. Is it inflamatory? Of course it is, but so is saying a defendent shot someone in the head. Is it prejudicial? That depends at which point in the trial the word is used. If it was used in the prosecutor’s opening statement I may agree, but by the time witnesses testify, the basic facts of the case have long since been introduced to the jury, meaning the word rape would no longer be prejudicial.

    That being said, I’m a bit mistified by those who argue it will now be impossible for the victim to describe what happened in this particular case without committing perjury and/or implying she consented. As she has stated, she doesn’t remember what happened from some point prior to when intercourse started until she woke up, requested the defendant stop, at which point he complied. How could she possibly describe what happened without committing perjury even if she could use whatever words she wished?

    Her testimony should be limited to what happened before, the fact she woke up with the defendent on top of her penetrating her vagina with his penis and what happened afterward. If she was to state what she thought happened, that would rightly be objected to by the defense on the grounds it was speculation. If she was to state what she was told happened, that would rightly be objected to by the defense on the grounds it was hearsay (unless it was an admission of guilt by the defendant or some other exception to the hearsay rule which would be admissable). The only relevant testimony she has to offer as to the particular act in question as I understand it is how much she drank, which if she has enough memory to recall would help the jury decide whether she was capable of consent, and what happened when she apparently regained consciousness and asked the defendant to stop.

    I do not know the facts of this case any more than the average person who’s read a few accounts in the media, but unfortunately, sexual assault is rarely a crime that includes witnesss aside from the defendant and the alleged victim. Furthermore, it rarely leaves compelling evidence. A rape kit is helpful in the extreme minority of cases involving victims raped by a stranger, but when dealing with aquaintance rape, it does little other than prove people had intercourse, which is usually stipulated to anyway, and if the intercourse was rough, that it was indeed rough. The fact the people consent to rough intercourse on a regular basis is not lost on jurors.

    Furthermore a rape kit is dangerous to some victims in that its presence in other cases and media exposure may lead some jurrors to believe that if there was no rape kit done, the victim didn’t feel strongly enough about what happened to bother going to the hospital or reporting it to police. It may also cause jurrors to assume that if the witnesses involved don’t testify that there was bleeding, tearing or bruising during intercourse that it implies the act was consensual.

    I think that despite the inherent unfairness of rape victims overwhelmingly being women victimized by men, prosecutors, advocates and the public have to accept that our legal system requires evidence that often isn’t possible to obtain in rape cases. Some would argue that the precautions women must take to avoid the risk of sexual assault are so great as to limit their ability to function fully in their lives, and I would agree. However, that unfairness doesn’t justify prosecutors bringing to trial cases they’d never dream of bringing before a jury were the crime murder, child abuse or something similary heinous.

    If the victim can’t recall the pivotal moments in which she would have consented or not consented to the act in question, the only relevant point is determining whether she was capable of consenting to sex. Without witnesses describing her as unable to control herself and a firm timeline that establishes when they started having intercourse I can’t see how this case could lead a jury to a conviction.

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