Judge bans the word 'rape' from courtoom

[strat81]

From my neck of the woods:
http://www.usatoday.com/news/nation/2007-07-11-rape-ban_N.htm

LINCOLN, Neb. (AP) — A woman who says she was raped has asked the Nebraska Supreme Court to review a judge's ban on saying such words as "rape" and "victim" at the trial of the accused man.

Jury selection is underway in the second trial of Pamir Safi, 33, on a charge of sexual assault. The language restrictions also were imposed during his first trial last year, which ended with a hung jury.

Safi says he had consensual sex with Tory Bowen, 24, after they met in a Lincoln bar in 2004. She said she was too drunk to consent to sex and that Safi knew that.

District Judge Jeffre Cheuvront has ordered witnesses to sign papers that say they won't use certain words and phrases as they testify. Among the words: "victim," "sexual assault," "assailant" and "rape."

The judge said Safi's attorneys will be allowed to use words such as "sex" and "intercourse" when describing what happened.

One of Safi's lawyers, Clarence Mock, says the language restrictions help ensure Safi's rights.

Bowen's filing to the state Supreme Court on Tuesday argues the judge overstepped his authority and that the ban jeopardizes Bowen's First Amendment rights.

Bowen said the ban had a marked effect when she testified for nearly 13 hours at Safi's first trial because she had to pause and make sure her words wouldn't violate the ban.

She said: "I want the freedom to be able to point (to Safi) in court and say, 'That man raped me.'"

The Associated Press usually does not identify accusers in sex-assault cases, but Bowen has allowed her name to be used publicly because of the issue over the judge's language restrictions.

Bowen's lawyer, Wendy Murphy, said the issue should be settled before trial testimony begins because the ban could damage Bowen's credibility or the use of a banned word could lead to a mistrial.

And some more:
http://cnews.canoe.ca/CNEWS/World/2007/07/12/4334409-ap.html

Judge's 'rape' ban leads to mistrial

This undated photo provided by the Lincoln police department shows Pamir J. Safi. (AP/Lincoln Police Department)

LINCOLN, Neb. (AP) - Before a jury was even seated, a judge declared a mistrial Thursday in the sex-assault case where he had barred the words "rape" and "victim" among others.

Judge Jeffre Cheuvront of Lancaster County District Court said publicity surrounding the rape case against Pamir Safi, 33, would have made it too difficult for jurors to ignore everything they heard before the trial, which had been expected to begin next week. A jury was in the process of being selected when Cheuvront declared a mistrial.

Safi is accused of raping Tory Bowen in 2004. He said they had consensual sex, but she said she was too drunk to agree to sex and that he knew it.

Cheuvront barred lawyers and witnesses from using words including "rape," "victim," "assailant" and "sexual-assault kit," and ordered witnesses to sign papers saying they wouldn't use the words. Words such as "sex" and "intercourse" were allowed. State law allows judges to bar words or phrases that could prejudice or mislead a jury.

Bowen, 24, was fighting the ban, arguing that it hurt her testimony because she had to pause and make sure her words wouldn't violate the ban. She said: "I want the freedom to be able to point (to Safi) in court and say, 'That man raped me."'

The Associated Press usually does not identify accusers in sex-assault cases, but Bowen has allowed her name to be used publicly because of the issue over the judge's language restrictions.

Advocates for rape victims criticized the restrictions, saying they discourage victims from reporting crimes, and held rallies on Bowen's behalf.

Safi's lawyer Clarence Mock said the restrictions on language would help ensure Safi's rights, and accused Bowen and her supporters of engaging in an "irresponsible, reprehensible public campaign" to improperly influence jury selection.

"I think the proper way to influence jurors is in the courtroom, not by placing tape over your mouth and holding placards," he said.

Messages left with prosecutors and Bowen's lawyers were not returned Thursday.

Mock said it's up to the county prosecutors to decide whether to seek another trial.

The judge had also ordered the ban in Safi's first trial, which ended in a hung jury in November.

Bowen said in court Wednesday that she would not sign papers promising not to use the banned words, but would try to follow the judge's order. Mock had sought to have Bowen stricken as a witness because of the refusal.

Yes, this is not RKBA/2A related. BUT. It is certainly 1A related and very legal. Imagine if you were in a situation where you were on trial for defending yourself with a gun but you were banned from saying "Person XYZ assaulted my wife and I". Or, for the ladies, imagine if someone tried to rape you and you had to use a weapon in self-defense. But remember, you can't say "rape". Insane.

 

[Erebus]

Or, for the ladies, imagine if someone tried to rape you and you had to use a weapon in self-defense. But remember, you can't say "rape".

I would expect that not being able to say that the person you shot was trying to rape you would make it very difficult to defend yourself. but might leave a big opening for appeal.

 

[MechAg94]

I would say that it is not up to the judge to regulate witnesses like that. It is up to the defending lawyer to effectively cross examine. Regulating witnesses like that smacks of the judge fixing the trial toward a certain verdict. There are other more open ways to insure the jury is open minded about guilt.

 

[HUMONGO]

The terms "Rape" and "Victim" can be highly prejudicial to a jury. Imagine a guy who is falsly accused trying to get a fair trial while during the weeks to months of trial, all the jury hears is that the "...'victim' was 'raped'...."

I still think there needs to be more oversight on women falsly accusing men because of regret or malice. Not an arguement that this is the case here or in every case, but culpability when alcohol is involved lies on both parties.

I believe that the stripper from the Duke case should never see the light of day.

 

[obxned]

The judge is a jerk, but our 'victim' needs to remember that if you get drunk and do something really stupid, you have only yourself to blame!

 

[geekWithA.45]

The terms "Rape" and "Victim" can be highly prejudicial to a jury

If that's true, then the words "murder", "liar", "thief", "theft", and "armed robbery" are also prejudicial.

[moderatorHat]
This thread's borderline OT, but I'll let it go till it takes a turn for the stupid
[/moderatorHat]

 

[Beatnik]

Well, what's the likelyhood that said judge would ban the word "murder" from a self-defense case?

That's what I don't understand: in a self-defense trial, the burning question on everyone's mind is usually "is this actually a case of murder?"

In this case, it seems like the burning question SHOULD be "is this actually a case of rape?" I mean, how are you supposed to determine if something wrong happened if you're not allowed to identify what could be wrong about the situation?

If this judge was elected, I think Nebraska needs to get on the ball here...

 

[ilbob]

I don't know how I feel about this case. Its entirely true that certain words are prejudicial, and imply something that it is up to the jury to decide.

I also think women have to take some responsibility for their own safety. If you are so drunk you are comatose, you are not being responsible, and at least part of the responsibility for what happens to you lies on yourself. It does not excuse the conduct of the man.

I think we pay judges to make these kind of decisions. It is hard to second guess this kind of thing, as state law seems to allow it, and the purpose of the trial in the first place is to come to a fair verdict, and the use of some words and phrases might well make it difficult to come to a fair verdict.

 

[HUMONGO]

If that's true, then the words "murder", "liar", "thief", "theft", and "armed robbery" are also prejudicial.

I think the difference lies in the inflamatory nature of the words. But I agree that they are all prejudicial. I don't necessarily agree with the judge, but I can see the reasoning.

I just get very angry that men are supposedly responsible for their actions while intoxicated and should have unrepressed judgement, yet if a woman is intoxicated, she holds no responsibility?!?!?!? Lets say that he was equally as drunk as she was, she didn't object, verbally or physically, to the "interaction"....but he...while equally drunk...should know that she was too drunk to consent.

This makes as much sense to me as being sued by a criminal for shooting him while he was breaking into my house and threatening my family.:banghead:

 

[strat81]

Guys, let's keep this on topic. I'm not questioning the woman or man's role in this case and whether or not a rape did or did not happen. It's about the judge censoring key words from a trial.

 

[FourTeeFive]

This judge has taken it upon himself to decide how people will react to certain words. This is not his job and it makes one question his understanding of the peoples' rights. Very sad; he needs to take off the robe and not put it back on.

 

[FourTeeFive]

.

 

[Don Gwinn]

Humongo, you're making a lot of assumptions there that don't have anything to do with what you're talking about. None of the problems you're citing would be eased by telling witnesses they can't use the word "rape" in a rape trial.

 

[Nolo]

Censorship of words is totalitarianism. Especially in a courtroom.

 

[mbt2001]

Safi says he had consensual sex with Tory Bowen, 24, after they met in a Lincoln bar in 2004. She said she was too drunk to consent to sex and that Safi knew that.

If she was drunk, got into a car and drove the car into a church, she would be found guilty. The liability of driving the car EVEN THOUGH she was drunk would be hers...

But, if she gets drunk and has sex, it is the guys fault...

Why can't he press rape charges? He might have been drinking too? Why can't he file an accessory charge against her? He couldn't have committed this "crime" without her aid? I mean, they were both drunk right? Cases like this should be tossed out.

Censorship of words is totalitarianism. Especially in a courtroom.

A questionable rape in 2004... Seriously, if the prosecutor can use the word RAPE, then Safi is going to go to jail. RAPE isn't a word, it is an accusation and the guy will not get a fair trail. The picture that the word RAPE brings to mine is one of violation and violence. This encounter was nothing like that. It was two people having sex consensually, and the woman AFTER THE FACT saying she counldn't consent. Be reasonable, this could be any one of us and we would want a fair shake and for people to have a proper perspective? If you are married, have you ever had sex with your wife after having drinks? Well, then that's RAPE under the law...

 

[jfh]

there's been more on this elsewhere--

the CBC did an extensive interview with a lawyer involved in this case. The issue seems to be

1. That the accuser has tried to politicize the trial, and

2. that Nebraska has laws regarding the use of words such as 'rape,' etc., in the courtroom, and they are not permitted.

A week earlier they also had an interview with the alleged victim--and she was one very savvy PC feminist.

I reached the conclusion that 1) the Nebraska law may be a bit 'quirky' given the popular usage of this terminology, but 2) it did sound, overall, like the judge was in a tremendous power struggle with the victimology advocates.

Meanwhile, the accused is mounting a vigorous 'consensual' defense.

Google it to find out more info--IMO, the opinions expressed so far are pretty unsubstantiated (with the exception of mbt2001's comments immediately above).

Jim H.

 

[HUMONGO]

Humongo, you're making a lot of assumptions there that don't have anything to do with what you're talking about. None of the problems you're citing would be eased by telling witnesses they can't use the word "rape" in a rape trial.

No assumptions made, just saying that it is unfair in alot of instances. I don't know anything about this particular case and make no assumptions, I was giving examples, that were indeed off topic.

There are problems with our current judicial system that have no easy fix. Most of these are attributable to overzealous attorneys, but some issues are intrinsic of our society in general.

 

[Henry Bowman]

I can see two sides to this. Both sides are left unexplained by the "news reports." Rape and victim are words that represent legal conclusions. It appears that the actions that took place are not genuinely in dispute. It is how you characterize the events that determine whether a crime was committed (rape) and whether there was, in fact, a victim (rather than merely a participant in noncriminal activity).

My guess is that the judge wants "just the facts" without witnesses editorializing about the legal conclusions to be drawn from the facts. I expect that counsel will be allowed to argue in closing arguments about the legal standard for proving the crime charged (rape) and how the testimony supports or refutes it.

We must start from the assumption the the media is misreporting the facts and, even if they have them technically correct, they are trying to hype something that would otherwise be easily explained into scandal.

The issue is not whether evidence/testimony is prejudicial. If it's relevant, it's prejudicial to one party or the other. The evidence rule is that it can be excluded if "its probative value is is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."

 

[jrfoxx]

I saw this on the news the other day, and it reminded me of the Hollis Wayne Filcher trial, where he and his attorney were barred by the judge from mentioning or in any way referring to,the second amendment in court.(He was charged with manufacture/possession of full-auto guns.) Interesting judicial trend....

 

[JWarren]

If I understand this correctly (both from reading here, and seeing coverage on TV), the ban primarily affects the prosecuting attorney and witnesses.


OK... someone has to say it... it may as well be me.


What the %$# has happened to people in our country?


Of COURSE the prosecuting attorney is going to make statements that are accusitory in nature. This is his JOB DESCRIPTION in a trial.

OF COURSE a prosecution witness is going to has viewpoints that are supportive of the accusations. After all, if they didn't, WHY would they be prosecution witnesses???



It is the responsibility of the jury to hear the various accounts of a crime and then make up their minds as to guilt or innocent.


Have we now become a country where we cannot be expected to come up with an independent decision? If THAT is the caliber of the people on a jury, they have NO RIGHT to be sitting there. I wouldn't trust someone with that lack of cognative ability to make a sandwich for me.



Welcome to the nanny state. Not only can we not be expected not to injure ourselves, we now cannot be expected to think for ourselves.


-- John

 

[RobMoore]

Censorship of words in court hurt Fincher did it not?

 

[keeleon]

When I first heard this it really bothered me that this was even possible to censor someone like that. Although after a little consideration I might be able to see the reasoning.

There is a big difference between "rape" and "non-consentual sex". The term "rape" really does imply a physically violent encounter. If she is going to testify that she was protesting as he made his sexual advances on her, then by all means she should be allowed to use the word, but if she is going to say that he knew she wasn't willing, and he did it anyway because she was intoxicated (as long as he didn't drug her), then she needs to use the term "non-consentual sex" . It really seems that easy to me.

Regardless of the actual facts that are presented, if she says "He raped me" and starts sobbing, the jury will get an image in there heads that might be very far from the truth. Granted, these kinds of cases really are a lot heresay anyway, and I am by no means defending someone that would do either of those. Someone very close to me has had BOTH happen to her, and I think the punishment should be the same.

I still don't think I agree with them censoring things she can say. It really is up to the defense to prove that those things aren't true. She could get up on stage and say he murdered her. As "accusing" of anaccusation as that is, it is the defenses's job to prove otherwise. If she is better and playing the "He raped me *sob" game then he is at "Hey, we were just drinking and one thing led to another...", then he loses and goes to jail. That's how the "he-said-she-said" system works.

 

[JWarren]

It's just that using some words when others better fit what actually happened, can help the story be told in a much more unfair way.

But I do not think it is our place to tell a woman who believes she was raped to tell the story in any manner but her own words.

It is the jury's responsiblity to sort out the facts.


My wife was raped. There is NO way I could expect her to describe the event as "We had non-consentual sex." She DESERVES to tell the event as it occured and it is OUR responsibility to discern the facts.


-- John

 

[keeleon]

Which is why I disagree with the censoring of any words in a courtroom. I'm just saying I can see the reasoning behind it, just like I disagree with not being able to obtain fully automatic weapons, but I can understand it also.

The legal definition of rape fits bot hof the examples I mentioned, therefore the term is valid. BUT, juries ARE stupid, and the guy might not get as fair of a trial, if his only defense to "OMFGRAPEZ!" is "I didn't know she didn't want it". He probably did do it, without her consent, and probably will be (and should be) found guilty, but what if he didn't and it was just an honest to goodness misunderstanding?

I know this is just semantics, but there is no technical difference between a 35 year old "raping" a 12 year old, and a 19 year old "raping" a 17 year old. But there is a difference in intent. When found guilty, they both have the same charges, so liek I said, it really doesn't matter if it was "soft" or "hard" rape, it is the same , and that will (hopefully) be found out.

 

[MechAg94]

Personally, I think the censorship in this case has little bearing on the facts, but I think it would have some bearing on witnesses. I have given a deposition before and it would have affected me if I had to be careful not to say certain words.

In this case, it seems like maybe the accuser is the primary witness testifying so it may have just been the judge's attempt to prevent the woman from making some sort of side show out of the deal. I still don't think I agree with that though.