No longer allowed to use the word "Rape"

[noamnety]

In a trial involving an alleged sexual assault, how would the prosecution present its case in a courtroom from which the judge had formally banned the words and phrases “rape,” “sexual assault,” “victim,” “assailant,” etc?

"Usually we leave it up to the linguists and philosophers to muse on the crazy relationship between words and their meanings. In the law, words—the important ones, at least—are defined narrowly, and judges, lawyers, and jurors are trusted to understand their meanings. It’s precisely because language is so powerful in a courtroom that we treat it so reverently.Yet a Nebraska district judge, Jeffre Cheuvront, suddenly finds himself in a war of words with attorneys on both sides of a sexual assault trial. More worrisome, he appears to be at war with language itself, and his paradoxical answer is to ban it: Last fall, Cheuvront granted a motion by defense attorneys barring the use of the words rape, sexual assault, victim, assailant, and sexual assault kit from the trial of Pamir Safi—accused of raping Tory Bowen in October 2004."

http://stangoff.com/?p=513#comment-77944

[Sparkly]

1. From the link at your link

Clarence Mock, one of Safi’s attorneys, said Cheuvront made the rulings to keep the trial fair.

The word “rape,” is not a legal term, he said. “Sexual assault” is, but whether a defendant committed that crime is a question for a jury to answer based on evidence at trial, Mock said.

“Under the rules of evidence, witnesses can’t reach legal conclusions,” he said.

“Trials are competing narratives of what happened,” Mock continued. “They should not turn on politicized hyperbole. They should turn on the facts.

“... Using words like ‘rape’ creates unfair prejudices for defendants and invades the (duties) of the jury.”

That is CRAZY!!!!!

Can a case of assault involve a witness saying, "He hit me?"

[AndreaCG]

24. Hmmm, rape is sure a legal term in NYS

My court gets cases where the indictment is for Rape in the First Degree all the time. Also Rape in the Second Degree and Rape in the Third Degree (statutory).

[Morgana LaFey]

32. And so a murder trial couldn't include the words murder and kill?

You bet this is crazy. Actually, I think it's the JUDGE who is crazy -- as a bat.

[Ian David]

2. What do they say instead of "Rape"?

"Alleged unathorized penile entry?"

And instead of "Sexual Assault" perhaps "Alleged unwanted genital interference."

This is fucking MADNESS.

Orwell in the courtroom.

[noamnety]

4. I'm guessing "seduced" or "made love"

in order to not prejudice the jury.

[MADem]

14. You beat me to it--alleged attack of the genitals!! It's insane... nt

[BadgerKid]

22. "surprise sex" (sarcasm) n/t

[dsc]

3. It seems that she could merely describe what happened

and let the jury decide (and if she is telling the truth he is a rapist). Witnesses could use allegedly before some of these words. I think a fairer ruling on his part would be to let the victim use the words but all the other witnesses use allegedly.

[noamnety]

5. "He was raping me"

seems like an accurate way to describe what happened.

This is like outlawing "he stabbed me in the arm" and instead requiring that a person say "he placed the tip of the knife against my arm and then pressed, penetrating the skin in the process."

[dsc]

6. I think she should be allowed to say that

but I also think that a reasonable juror in that particular case would get the idea from I awoke to him penetrating me or words to that effect. I would say that police or others testifying shouldn't be permitted to use rape but instead describe the action.

[noamnety]

8. I'm not sure that works in real life.

"She called 911 and reported that she'd been raped."
"She called 911 and reported that she'd had sex."

"I referred her to a rape counselor."
"I referred her to a sex counselor."

"She came to the hospital and we gave her a rape kit."
"She came to the hospital and we gave her a sex kit."

How would you phrase those things?

[dsc]

11. The first is a quote of what she said

which wouldn't be allowed anyway (hearsay). The second, it seems you could just say a counselor. The third admittedly I wonder about. I have no idea what you would call the kit and the article didn't say.

[Iris]

12. I've been awakened to someone. . .

oh, never mind.

My point is, any sexual act can be consensual. I wouldn't want to leave something like to a jury "getting the idea."

[dsc]

18. well sure it can

except she was passed out, even the defense admitted that.

[Iris]

19. As a woman, I'd have a hard time saying "he was raping me" in a court of law unless it was true.

But it's all a sort of game, isn't it? And this is just the latest strategy.

[dsc]

23. rape doesn't have a legal meaning

so in all honesty it really shouldn't be used in court. Frankly I agree the man should be convicted and that she should be permitted to use whatever words she wants but I also think any reasonable juror will convict given this set of facts if they believe her and not him. That was my point.

[Recursion]

29. Only in Nebraska

I was going to give a "the hell it doesn't" response, but you're right; "rape" is not defined in the Nebraska criminal code, which is unusual.

[dsc]

31. Not just Nebraska evidently many places don't use rape but use sexual assult instead

I am unsure as of why.

[Recursion]

35. As I mentioned in another post...

...rape historically means "abduction" rather than forced sex; I know some states keep rape as a separate law from 1st-degree sexual assault to cover the bodily arrest and/or abduction that generally accompanies rape. Other states simply synonymize rape with first-degree sexual assault, or make it first degree sexual assault with the combination of physical force or threats.

[Morgana LaFey]

33. Oh, please. There are about a bazillion words which do not have

a legal meaning -- do you want to ban all those as well?

[Recursion]

36. Exactly. That argues against the defense lawyer's point

I could see the judge saying the victim could not testify, "he committed first-degree sexual assault against me" because that question is exactly what the jury is supposed to determine. But especially if "rape" does not have a legal definition in Nebraska, and given that it is an unquestionably common word in standard American English, forbidding its use is perverse.

[dsc]

37. from expert witnesses yes

but not from the victim. I think she should have been able to say what she wanted but the police and other people should have had to stick to alleged and defined terms.

[originalpckelly]

7. Am I still allowed to use the word asshole?

I think that aptly describes both the judge and the defense lawyer.

[noamnety]

9. I agree.

I oppose the use of the words judge and defense lawyer, in fact, as they may unfairly prejudice the reader into assuming they are reasonable people interested in justice.

[ProgressiveAmPatriot]

26. Conservative asshole, what's next "Rape does not exist" n/t

[Hosnon]

10. Ok...this line deserves the "wtf" emoticon:

"Words ... are defined narrowly, and ... jurors are trusted to understand their meanings."

I do not trust jurors in that respect very much. And, without further ado:

[dsc]

13. That is quite misleading

jurors have the words defined for them and then are expected to apply the definition.

[Hosnon]

15. Yeah, I know. But, even then, I have little trust that most jurors apply the

provided definition, especially if the difference between the legal definition and the common definition is slight (but extremely important).

[gollygee]

16. What?

What are they saying the charges are if not rape or sexual assault? How can you have a trial without saying what the charges are?

So if someone is murdered, will we not use words like "kill" "stab" "mortally wound" etc.? Or is it just rape trials?

This makes me very very very angry.

[Recursion]

27. I've seen a trial where the victim could not be called "victim"

Since the fact of the crime's occurance was what's in question. I also don't know from the article if Rafi's actual charge is rape (which has a specific meaning in some states that may not apply here -- though I don't know of a jurisdiction in which "rape" has "no legal meaning" as the defense lawyer says), 1st degree sexual assault, or what.

The ruling strikes me as feloniously idiotic on its face, but I'm more sympathetic to a lawyer's comment after the fold that you can have a witness say "he hit me" but not "he assaulted me" since the jury's job is to determine if the event was assault. The only good side I can see out of this is that if the dude gets convicted he has one less avenue of appeal...

[BlackVelvet04]

17. I can understand the defense attorney

trying this tactic, but I can't understand the judge allowing it.

But here's the weirdest part to me:
"prosecutors upped the ante last month by seeking to have words like sex and intercourse barred from the courtroom as well."


Why would the prosecutors do that? What's the woman supposed to say?

[gollygee]

20. Charades?

I have no idea. Stupid.

[Recursion]

28. Playing chicken; it actually can be effective

It's a polite way to make a judge feel stupid about a bad ruling when it becomes obvious he can't continue it to its logical conclusion. Sometimes it makes him rule something later in your favor as an apology. Kind of like what soccer players do with refs.

[ismnotwasm]

21. You gotta wonder what they're afraid of

Lately the word "rape" is another term for "She's lying" You'd think the defense attorney's would embrace it. But no, instead, even the word rape is taken away. Interesting times goes the curse.


And of course SheWasPassedOutItCouldn'tBeRape rape apologists are out. Jesus.

[femmedem]

25. kick. nt.

[Recursion]

30. Turns out Nebraska is one of a very few states where "rape" has no legal definition

But the unicameral's website is down so the link won't work.

In most states, rape is a "superset" of first-degree sexual assault. Generally, first-degree sexual assault involves unlawful penetration and/or penetration of a non-child minor. Many states synonymize rape with first-degree sexual assault, though a few add it as a separate offense to address the bodily arrest and/or abduction that generally accompanies the crime ("rape" etymologically and historically means abduction, btw, not forced sex -- that still causes productions of The Fantastiks some problems).

Obviously I'm loathe to blame a defense attorney for defending his client with the zeal required by the canons. I am pissed at the judge for accepting it. Actually the defense attorney's explanation speaks against his argument: the fact that rape does not have a legal definition in Nebraska means she should be allowed to say it. When "assault" has a legal definition (as I believe it does in all 50 states) I can see a judge striking testimony to the effect of "he assaulted me" since "assualt" must become a term of art in that trial and the jury's function is to determine if it was in fact an assault that occurred.

However, given that "rape" does not have a legal definition in the trial, a fortiori she should be allowed to use the term if it is her honest assessment of the event. Sounds like another misogynist judge needs some impeachin'....

[BlooInBloo]

34. Being permitted only to use legalese would make testifying challenging, to say the least...

... It's clearly a the-bitch-was-askin-for-it type of judge.

You can imagine the appeal if the defendant loses: The prosecution perjured herself on the stand. LOL!!!