Judge sued over ban on word 'rape'

[Omaha Steve]

Source: Omaha World Herald

BY LESLIE REED

LINCOLN — Tory Bowen has taken to federal court her fight to overturn a judge's order that she not use the word "rape" during the trial of the man she accuses of sexually assaulting her.

Her lawsuit, filed Thursday in U.S. District Court in Lincoln, names Lancaster County Judge Jeffre Cheuvront as defendant.

Cheuvront entered the order forbidding Bowen and other witnesses from using the terms "rape," "victim," "assailant," "sexual assault kit" and "sexual assault nurse examiner" during the trial.

The first-degree sexual assault case against defendant Pamir Safi, 34, has twice ended in mistrial.

Read more: http://www.omaha.com/index.php?u_page=2798&u_sid=10126612

[no_hypocrisy]

1. She probably can succeed with the wording of the criminal statute concerning

the crime. I'm sure the terms "rape", "sexual assault", etc. must be mentioned somewhere in the law. Or how about the jury instructions? Sexual assault must be in those.

[Forrest Greene]

3. I Long Ago

...read a short piece about a possible response to the unspeakable sadism that is practiced by the system, after the fact, on women who have been raped. It was written by an ex-convict, who had not been in for rape. He said that in prison, rapists are often able to play the part of a strutting, bad-ass he-man, a strong man who takes what he wants from bitches, etc., etc., etc. — all that macho crap gets them some respect. The author's suggestion was that rapists should be charged instead with indecent exposure, as if they were subway flashers. He felt there would be much less suspicion & mistreatment of the victim, that a conviction would be much easier to obtain, that the probation & sex offender registration aftermaths would be more severe & that, finally, in prison, an indecent exposer is considered a pitiful, weak, disgusting creature, whose life is made hell.

[JerseygirlCT]

18. I'm not really comfortable with that

It also downplays the crime, and makes it sound victimless.

It most certainly isn't victimless, and it's a very, very serious crime. IMO, right next to murder, and bumping pretty damn close to it at that.

What we need are serious sentences for rapists -- measured in decades, not years. And prosectors who take the charge seriously. Very, very seriously.

We've got such a long way to go. Stories like this one are absolutely infuriating.

[badgerpup]

21. I remember that...

...think it was Spider Robinson, was it not?
...can't remember whether it Callahan's Lady or Lady Slings The Booze.

:loveya: loves me some Spider Robinson...

[Forrest Greene]

22. No, It Was

...a letter-to-the-editor in response to an article on court system handling of rape that appeared in Co-Evolution Quarterly, before it became Whole Earth Review. Probably late 1970s. I have read some good stuff by Spider Robinson, too, but not that I can remember on that subject.

[badgerpup]

39. Could have been both...

:hi: Maybe the author saw it there and used it.
That publication sounds like something Mr. Robinson would be reading...

[Ken Burch]

35. It would be even more effective to just tell the guards "these guys fucked 12 year olds".

n/t.

[LiberalFighter]

2. Must be the type of sex the judge likes to have.

[pop goes the weasel]

4. Is the judge a Brownback Baptist?

The judge's ruling sounds suspiciously in agreement with these extremists.

[fasttense]

26. Unplanned Sexual Event (USE)?

They want to call rape an unplanned sexual event? Makes it sound like just a minor annoyance to get raped. I wonder if that is what prisoners in jail call it when a guy twice their size decides to shove a stick up their butt? Oh, nothing serious happened. Just an unplanned sexual event with a stick.


Edited to remove foul language.

[pop goes the weasel]

29. at first I thought it was a parody site

Then, to my sickening horror, I realized that these people are serious.

[Robbien]

5. Good. This trial was a travesty.

No wonder the jury was so confused when trying to decide a verdict. They didn't even know of what crime the guy was being accused.

[demgurl]

6. And '1984' has come to pass.

All we have to do is ban a word and it does not exist any more. Orwell would be proud.

[acmavm]

7. Of course, another nutcase from Nebraska making ridiculous rulings and

treating women like they were farm stock.

It's a totally surreal experience living in this state. Especially if you have tracable brainwave patterns.

[evilkumquat]

8. So What is the Judge's Official 'Reason' for the Order?

I mean, what the hell?

If the order was issued to prevent 'undue prejudice' against the defendant... that makes no goddamned sense whatsoever!

He is on trial for RAPE.

Banning usage of that word or its synonyms (e.g., 'sexual assault') would be like having a trial for a bank robber and banning the words 'bank robbery' or 'theft'.

I mean, what in the HELL?

Evil Kumquat

[Robbien]

9. They were banned because it might prejudice jurors against the rapist

The rapist claims that the sex was consensual. The victim has to use the word sex instead of rape.

[Spangle]

10. So, does this judge

Do the same with all crimes. Like murder, etc I'm serious, I would like to knw.

[Cronus Protagonist]

11. And isn't the alleged rape not a rape until so decided in court?

Innocent until proven guilty and all that old crap that's so out of fashion these days.

[salin]

23. while I understand that - this seems to take it to the ridiculous

so if a rape kit (police tests used to determine whether there is any physical evidence of rape) can't be mentioned or has to be called something that the jury might not recognize (ala that the regular tests were run and these were the results). It might tip a trial to the other extreme of being having evidence and testimony so heavily censored that what evidence was collected, and the findings wouldn't be clear to jurists and might leave the idea that the regular tests weren't run and thus there is no real evidence? This is very sticky. If a judge went this far - I think it is a good thing that the issue is going further up the chain per deliberative process for what is appropriate for trials rather than resting with a single judge's judgement.

[depakid]

34. Impressive, isn't it

These threads always amaze me. I've pretty much come to the conclusion that most Americans simply don't deserve the protections that they've been afforded.

I've also noticed that the same types of people who'd so willingly deny others their state and federal constitutional rights are the ones who cry the loudest when they're called before the bailey.

[Joe Chi Minh]

13. It's crazy. Rape connotes the essential element of force against an unwilling victim,

as well as the sexual component of the alleged action. The alleged victim precisely claims to be a victim, not a partner in consensual sexual congress. His ruling strikes at the very foundation of the adversarial system. Not that I'm crazy about the latter, mind you.

How that judge ever passed his exams is a mystery to me. This is a matter of elementary reasoning, not a knotty conundrum.

[JerseygirlCT]

19. Well, in that case, let's never mention crimes in court at all, shall we?

We'll just let the jury guess why they're there.

[ProudDad]

12. Don't forget to read the article before responding...

"But Clarence Mock, Safi's attorney, said he doubts the federal courts will intervene in a matter that involves state rules of evidence.

"It appears these are all the same misguided legal theories that were presented to the Nebraska District Court and the Nebraska Supreme Court. Both of those courts concluded they were without merit, and I believe the United States District Court will do the same," he said."

<cut>

"The alleged sexual assault followed a night of drinking at a downtown Lincoln bar in October 2004.

Safi maintains the two had consensual sex. Bowen has said she has no memory of leaving the bar with Safi or of consenting to sex. She said she woke up the next morning to find him on top of her."

He said, she said.

Two mistrials already tell me she doesn't have much of a case...

[Joe Chi Minh]

14. That may well be, but what is surreal and frankly barmy is to deny the

plaintiff or her counsel the right to voice her allegation concerning the coercive nature of the act she claims to have been subjected to. It then falls to the Defence to dispute it. Not rocket science. It's an allegation, not a 'pronunciamento' for universal acquiescence for all time, chiselled in stone. It's called the adversarial legislative system, I believe.

I must have misunderstood it, and she was ordered not to accuse him of rape after the case. Not that that strikes me as the judge's business.

[Xithras]

15. These types of cases are hell to judge.

I fall into the camp that believes that if a woman gets drunk of her own volition, sleeps with a guy, and regrets it when she's sober the next day, it's NOT rape. It's the female equivalent of beer goggles.

It's only rape if it can be proven that he plied her with alcohol, or coerced her into drinking, with the sole intent of sleeping with her. Unfortunately, that's almost impossible to prove beyond a reasonable doubt.

[JerseygirlCT]

20. You know what? Even if she consented while drunk out of her mind

the night before, if she hadn't consented that morning? Rape.

[MaraJade]

24. Legally, in most states

It is impossible for a drunken person, male or female, to give consent.

[JerseygirlCT]

25. That's a good point, too -- although I'm sure harder to prove.

But the idea that someone might have said yes once, and that means yes from then on...

Ugh.

[NashVegas]

27. That's Not the Point

Cheuvront entered the order forbidding Bowen and other witnesses from using the terms "rape," "victim," "assailant," "sexual assault kit" and "sexual assault nurse examiner" during the trial.

Imagine a robbery trial where the prosecution/plaintiff was not allowed to use the word "robbed" or "assailant" but told they must instead use something like "property misappropriation" or something along those lines.

Here's more, from previous articles:

Bowen, who testified for nearly 13 hours at the first trial, said the ban’s effect was “huge, huge.” She said she fears a repeat at the second trial.

“They’ll (jurors) think I’m choosing to use the word, ‘sex,’” she said.

“I had to pause (at the first trial) and think, re-navigate (how to say what happened). ... Jurors won’t find me credible because I’m pausing to find the words.”

FYI, the same judge denied the county attorney's motion to deny the defense the ability to use the words "sex" and intercourse" to describe what their client did.

With language being so used - one might say, "fucked over," to determine the outcome, it's no wonder the jury couldn't reach a decision.

[Vidar]

16. Good for her!

[The Doctor.]

17. The judge only rulled out the use of the word 'rape' after the prosecution

said the defense couldn't use 'sex' and a number of other, more innocuous words to describe the incident. - If I remember correctly.

So the defense turned around and said, 'well, if we can't call it 'sex', then they can't call it 'rape'.'

The judge ruled 'fair is fair'.

[Randomthought]

28. Rape is not sex

The Judge is confused I sincerely hope you are not.
As I remember from reading about this case, this defendant has a history of similar incidents.

[LisaL]

32. The judge allowed the testimony of two other women against

the defendant, even though there was no conviction in either one of the prior accusations. I think based on this it should be hard to argue that judge is somehow biased against the alleged victim. I don't think judges have to allow prior accusations testimony in, especially considering there were no convictions.
http://www.journalstar.com/articles/2006/11/06/local/doc454ff4737b29d742445702.txt

[The Doctor.]

33. That's the point.

If you remember the case then you remember the prosecution got what it wanted first. Re-read my post, it seems you didn't get the meaning.

[Bariztr]

30. Poor jury pool in this thread

I am a criminal defense lawyer and I find the judge's decision here courageous and proper. I have often made the motion prior to trial to have inculpatory words limited or even excluded. Why? Simply the presumption of innocence, a simple yet powerful concept that is seemingly lost based on the comments on this thread. The words rape, rape kit, victim and the variations are extremely powerful words that immediately bias the fact finder without them hearing a single bit of the evidence. If using those words are fair then the defendant should be addressed as the "innocently accused" to make it completely fair. But this is the burden of the defense community, prejudging and bias.

There are very few in this thread who should be jurors.

[ProudDad]

31. Thank you for weighing in

It's too bad the presumption of innocence is so rare in the courts, public and media (or on DU!).

As for being a juror, I don't believe what any cop or DA says. I've written that on a jury summons 'cause I know they'd never pick me, why waste my time.

I've had personal experience of the depths to which the cops and DA's will go; the lies they'll tell to get a conviction. And thanks to a bunch of bullshit laws, they have all the power; the judges and defense nearly none.

It's refreshing to hear of a judge trying to level the playing field.

[Evergreen Emerald]

36. Please...the attempt to clean the language is hiding the violence

Rape is not sex. To call it "sex" is not unbiased.

[Randomthought]

37. Exactly

Rape and sex are two entirely different things. Instead of 'sex' if the judge wants to avoid the word rape alleged assault would be more accurate. But rape has nothing to do with sex. It is about power, control and violence. I'm very disappointed to see an attorney commenting in a way that makes me think he/she does not understand the true nature of rape.

[Bariztr]

38. No jury for you.

The issue here is not hiding "violence". The evidence will be heard by the jury and they can decide if it is a crime or not. This is a trial, where the person is presumed "innocent". You are presuming guilt solely based on the charge. This is about the fairness of trials. Your obviously unconcerned about this and find it trivial. I deal with this kind of attitude all the time and here is my general response..."We would like the Court to excuse Emerald for cause from this jury panel".

[truebrit71]

40. The only problem with the presumption of innocence in a case like this is..

...that if the DNA from the rape-kit turns out to be his, he had intercourse with her without her consent, he wouldn't have been charged, right? So he in fact, is presumed to be guilty (otherwise he wouldn't have been charged)and he has to prove he's not guilty..."that ain't my DNA y'honor!!"....

[Bariztr]

41. Not the way it works

There is no presumption of guilt because he is charged. Does not work that way. The filing of a charge is not a finding of guilt. The presumption applies until the moment the verdict is read by the judge. Then can you say the person is guilty, not a moment sooner. The burden to prove guilt is not the defendant's. I am not arguing about this specific case but the general constitutional principles involved in criminal trials. No one should ever say there is a "problem with the presumption of innocence" to believe that is to give even more power to the government.

[truebrit71]

47. In the mind of the jurors it does....it's human nature...

...If he was presumed innocent....why was he charged? See the flaw?

[Evergreen Emerald]

43. you are stating that we should use benign words that do not suggest

guilt to the jury. And I am telling you that terming it "sex" is not benign. It suggests consent. So, it appears that you don't want benign, you want it to favor your client.

[Skittles]

45. how about this then?

being forced to say SEX instead of RAPE if there was indeed a rape may improperly imply CONSENT. GET IT? They are twisting words not to be IMPARTIAL but to be IN FAVOR OF THE ACCUSED.

[superconnected]

42. yeah, men have been trying to shut women up for years.

That's why it makes me nuts when even on internet controlling (half)men start telling women to "shut up". She should be able to call it what she feels it is. Anything else is a denial to her of the right to voice her herself.

Everyone should be allowed to explain what happend to them in their own words.

[Bariztr]

44. More bad jurors

No one is telling anyone to "shut up"...this is your complete lack of understanding about a fundamental constitutional issue. When a someone, either the "victim" or "accused", testifies they can generally use whatever words they want to describe the incident or events. They can choose to call it "rape" or "sex" as you define it. Then a jury decides if the testimony they give is credible and and sufficient to find guilt beyond a reasonable doubt. My comments are directed at the prosecutor being able to use the biased words without any finding of guilt being made. This isn't about the victim it is about the government. However those of you that are predisposed don't care about fairness, just results as long as they fit within your preconceived bias.

[Thickasabrick]

46. If she doesn't remember the details, how does she know it

wasn't consensual?