I don't know how this hasn't made the evening news. Then again, I had to hear about it from the Yarn Harlot, so maybe it has been. I'll let Stephanie explain:
Tory Bowen says that she was raped. Actually, Tory Bowen, was pre-law at college when she had a drink at a bar that was the last thing she remembers until she woke up in a strangers bed, with a stranger, who was doing something she hadn't consented to. (That would be the rape.) She went to the emergency room, was treated and had a rape kit done and called the police. The police charged her attacker with 1st degree sexual assault and a trial was set. That's where things got weird.
The judge decided that many words around this issue were too inflammatory. That they made the defendant sound guilty, and that they implied a crime...."Rape" is a legal conclusion- he thought. We cannot call it rape until a jury says it's rape. (Hear that women? You can't know something is rape until there's a vote. I suppose being there doesn't grant you any special insight.) So he banned some words. Nobody in his courtroom may use these words, when it comes to this trial:
Rape.
Sexual Assault.
Victim.
Attacker.
Assailant.
Forced.
No one can say that the hospital did a "Rape Kit" and they can't say that at the hospital she was treated by the "Sexual Assault Nurse Examiner." In fact, inside the courtroom no one can even say that the defendant is charged with 1st Degree Sexual Assault.
So what, if anything, was allowed?
Ms. Bowen is allowed to say that she and the defendant had "sex" or "intercourse", which she complains (and very rightly so) implies the exact opposite to a jury, that the acts were consensual and non-traumatic.
The whole thing got laid out from a legal perspective by Dahlia Lithwick in a June 20 article in Slate:
Nebraska law offers judges broad discretion to ban evidence or language that present the danger of "unfair prejudice, confusion of the issues or misleading the jury." And it's not unheard-of for judges to keep certain words out of a courtroom. Words like victim have been increasingly kept out of trials, since they tend to imply that a crime was committed. And as Safi's lawyer, Clarence Mock, explains, the word rape is just as loaded. "It's a legal conclusion for a witness to say, 'I was raped' or 'sexually assaulted.' … That's for a jury to decide." His concern is that the word rape so inflames jurors that they decide a case emotionally and not rationally.
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?
Since the jury wasn't told particular words words were banned, the first trial, unsurprisingly, ended in a mistrial. Stephanie again:
Can you imagine being a juror at a trial where a man is accused of not even sexual assault, but just sex? A trial where the victim (oh, crap. Forgot we can't call her that.) the "complainant" can't say she was forced? A trial where the victim never accuses her attacker of rape? If you were a juror, how seriously would you take a woman who testified about what happened to her for 13 hours without ever using a single word that implied that she thought what had happened to her was a crime?
Before the second trial, and to prove a point, Tory's lawyer tried to get "sex" and "intercourse" banned from the court as well. To which I say: heh. Dahlia did too:
The judge denied that motion, evidently on the theory that there would be no words left to describe the sex act at all. The result is that the defense and the prosecution are both left to use the same word—sex—to describe either forcible sexual assault, or benign consensual intercourse. As for the jurors, they'll just have to read the witnesses' eyebrows to sort out the difference.
Apparently, the second trial has been declared a mistrial by the judge, becaues he fears all the media attention will get in the way of jurors unbiased opinions. Seriously.
A reader of Stephanie's posts in the comments about a psychiatrist in Canda who studying how language events, especially those implying violence against women aren't just semantics, but create reality, a
"real-live reality where perpetrators don't go to jail for crimes they've committed because the language that's used has consent embedded in it. This is absolutely the most egregious example of this that I've heard...One of the examples Allan Wade gives is the problem in calling something 'sexual' that isn't 'sexual' at all. He says, 'If you use a frying pan to hit someone over the head, you don't call that cooking.'"
Okay, ladies of the blogosphere, let that be our rallying cry. Let's let out a collective "WTF??" loud enough for everyone to hear.
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