Oh. My. God. this is so awful. I don't know what else to say.

Of all the hair-raising things you guys post on this site, this--this--is by far the most disturbing to me, personally.

I feel awful for the rape victim involved (yeah, I said it).

It's this kind of thing that I want to force people to read when they say that there isn't a need for feminism anymore. Then again what can we do about it when our society marginalizes feminism and, more devastatingly, the VICTIMS of sexual ASSAULT. And if this trend doesn't apply to murder or other crimes, which it clearly doesn't, than what judges are essentially saying is that *you* can't be trusted to tell your story if you're raped, but if you're murdered after then hey, your corpse can tell it! So no worries.

Safi's lawyer, Clarence Mock, argues that the word rape is similar: "It's a legal conclusion for a witness to say, 'I was raped' or 'sexually assaulted.' … That's for a jury to decide."

No, you idiot, the jury decides whether or not your client is guilty. The rape occurred, or else law enforcement would not have been able to bring charges in the first place.

This actually gave me chills. What better proof that men have the power of naming...

That is so fucking weird... I mean, at first I as like, ok they ban other words like victim... but then I took the liberty to breeze through several transcripts...

Doesnt matter if its drugs, rape, assault or abuse. All of these words have never been banned before.

In drug cases, the prosecutor used the words "criminal, drug trafficking, (I shit you not on this one) terrorist, etc etc"

WTF - all thats left is forcible sex. But calling it sex is an assault. An assault on the poor woman who has to endure this.

However, charges do not mean a rape occurred. If I brought stoupendousness up on pedophilia charges, it does not mean your a pedophile. It means I think your a pedophile, and your presumed innocent until proven otherwise.

But the real injustice is not allowing this woman to right to testify against her alleged perp.

Really. They are starving her of any right to see justice in this case.

Words like victim have been increasingly kept out of trials, since they tend to imply that a crime was committed.

Excuse me if this is a radical notion, but isn't the point of a criminal trial to accuse someone of a crime?

The rape occurred, or else law enforcement would not have been able to bring charges in the first place. - stupendousness

This is not true. Would you say that law enforcement's charges always are true?

If it's in dispute as to whether or not what occured was rape or consentual sex, then it may very well be the case that a rape did not occur. Last I checked (in spite of the best efforts by Bush & CO to reverse this), we still had a presumption of innocence in this country.

Presumably (and I don't know the details in this case), one person is alleging rape and the defendent is responding the sex was consentual. Some sort of sexual contact, claimed by the accusor to be rape, occured, otherwise law enforcement wouldn't be able to bring charges. But that does not mean rape occured. It is rather inconsistent for people who are otherwise liberals to suddenly abandon all liberal principles when "rape" enters the picture.

That being said, the accusor is accusing the defendent of rape. I understand the need not to prejudice the jury, but the allegation is the allegation and it is outrageous that the word used to describe what is alleged to have occured cannot be used in the trial. As others have mentioned, would a judge prevent a mugging victim from saying he was mugged?

I'm with Jeremy F. The presumption of innocence doesn't obviate the fact that in a criminal trial you are accusing someone of doing something.

Well, and right now I am chilled by the fact the jury doesn't know about the ban. I am also chilled thinking about what this judge is like in his sex life.

Well, the article makes clear the prosecution can at least use the phrase "nonconsensual sex" or "forced sex". Substitute "forced himself upon her" for "raped her" and you sound very slightly archaic, but you may actually increase the impact. A witness on the stand saying she woke up to find a strange man forcing his way painfully inside her sounds more invasive to me than the more clinical sounding "rape". Part of the job of a lawyer is to have a way with words.

That said, this is taking "more prejudicial than probative" to an absurd level that results in language more prejudicial than probative.

I'm having problems with the believability of one part of this, though -- a judge really ordered the prosecutor to make no mention of the fact that certain words were banned? Can anyone confirm this?

DAS, you missed stupendousness's point. The complaint is allowed to go to trial because the police believed a rape by SOMEONE actually happened. That has nothing to do with a presumption of innocense. The question in the trial is whether the accused was the one who committed the crime.

Zed, I don't think the judge's reason for banning the words was to help the victim. If she thought "forced sex" made more impact, she could use that of her own voilation. So basically, I think the ban is totally bogus.

This is utterly horrendous and violating.

Maybe from now on we should bar the words "victim" and "murder" from murder trials. Instead, they can talk about the "deceased" being "no longer with us."

Yeah, that'd fly.

I'm not saying that the judge's reason was sane, and I agree that it is bogus (see paragraph 2). I'm saying that if the prosecutor is on the ball, she should be able to compensate without too much trouble.

The question in the trial is whether the accused was the one who committed the crime. - Ninapendamaishi

Well, in any rape trial, there will be one of two possible questions (otherwise there wouldn't be a trial, but a guilty plea): (1) was the act in question consentual or forced? or (2) was the defendent the one who committed the act?

If question #1 was the question of the trial (and, as I said, I've not read about the particulars of the case), then I stand by my point -- to say a rape occured when whether or not a rape occured is under dispute is to throw away the presumption of innocence. Of course, even in such a case, it seems outrageous, as others have pointed out, to bar the accuser from stating her accusations in the natural language to state such accusations. But still, not every accusation of any crime means that such a crime occured -- so to say a rape occured simply because a rape was alleged to occur is rather ridiculous.

OTOH, if question #2 is the question of the trial, as your comment seems to indicate, then it is bizarre for the judge to throw out the use of the term rape, as that the victim was raped would not be under dispute ... the only question would be by whom. I guess the fear is that some people, when faced with an act of horrific violence, would tend to automatically view whomever the authorities say is responsible as responsible (witness how readily the public accepted the Saddam Hussein - 9/11 connection meme). So perhaps there is a prejudicial aspect of using the term "rape"?

Although people who leap from "a crime occured and the police say X did it" to "X did it" on the basis of the severity of the crime ("oh, I don't believe the police when it comes to traffic violations, but rape is so violent, I must believe the police") ought not to be on juries in the first place ...

This has officially ruined my day. Especially considering so many people consider rape to be a sexual act rather than an act of violence and power. My stomach has literally turned reading this.

Zed - "I'm saying that if the prosecutor is on the ball, she should be able to compensate without too much trouble."

Yes, and I hope this particular rape victim sees her attacker brought to justice.

But a successful prosecution under these circumstances would set a harmful precedent for other rape victims. "Lookiee, the prosecutor got a conviction without using any of those icky words. The judge's order wasn't harmful to the trial. Therefore, let's ban the words from all trials henceforth."

DAS, I think a presumption of guilt (if in fact that is an accurate description) is more based upon the fact people rarely lie about rape than it is upon the severity of the crime. And any rate, we understand your point I just think you should drop it, because you're not going to make friends here that way. It's not like feministing doesn't have dozens of people come on just to try and tell the feminists they're hypocrits, so it's not like you're being unique and enlightening.

"But a successful prosecution under these circumstances would set a harmful precedent for other rape victims. 'Lookiee, the prosecutor got a conviction without using any of those icky words. The judge's order wasn't harmful to the trial. Therefore, let's ban the words from all trials henceforth.'"

But if the prosecuting attorney wins the case, wouldn't any protests filed by him or her be more likely to be listened to? Nobody could then call the attorney a sore loser, but rather someone who won a case even with the odds deliberately stacked against them.

DAS makes a legitimate point in response to an incorrect statement.

I'm speechless.

How could anyone think that this was a good idea?

The police must first determine if a crime was committed. If they think a crime (in this case, rape) did not take place, then they do not make formal charges against anyone.

But, obviously the police did think the woman was raped.

This case would not have gone to trial if the police did not have sufficient evidence to believe a crime occurred and to convince the prosecutor to press charges. Now, the defense may argue that the rape did not occur, but the fact of the crime is not on trial.

The defendant is on trial.

If the defense really wants to challenge the existence of the crime, then they should have argued for the whole case to be thrown out in the first place. They should have said, "Hey, the police messed up! They don't have sufficient evidence to show a rape even occurred!"

But they aren't formally challenging the police's conclusion that a crime was a committed or the prosecutor's decision to file the charge.

And I was never talking about the innocence or guilt of the defendant. That's for the jury to decide.

I kind of understand leaving out the word "rape." The word is inflammatory.*

But not allowing the word "sexual assault" to be used? What an idiot.

*Witness the 50 percent of men questioned in a survey who would never ever ever "rape" a woman, but they would force her to have sex.

Inflammatory or not, the woman is alledging she was raped. Just as if she were alledging she was mugged, she needs to be able to state her allegations in full and accurately (as mentioned be other posters before me).

Speaking personally, it's been hard as hell for me to identify my own sexual assault properly. Rape? Simple assault (and isn't that phrase a laugh)? I usually just refer to it as "that thing that happened at that party."

If a woman is brave enough to step forward, to name her abuser, to suffer through the indignities and pain of the trial... She doesn't need to have her experience invalidated this way. She deserves to be able to stand up in court and say that the guy raped her in exactly those words.

Removing the word is just one more step in the process of ignoring or invalidating the crime.

I don't like this, even if the prosecution is successful. Saying 2 people had sex, to me, implies that they had consensual sex, as anything not consensual is rape. This decision moves into that territory where unless it was violent, it's simply considered non-consensual or coerced sex, but still sex. The judge clearly understand that certain words have more power than others, and I can see why he might not like some of those words being used in reference to the defendant, but by banning them altogether, he's implying that a crime possibly did not occur at all.

Also, I see that he banned the words SEXUAL ASSAULT KIT. Wouldn't that be considered evidence that the crime did occur, possibly even tying the defendant to the crime? If they can't mention the kit, then how can they bring forth evidence from the kit?

The tiniest minority of rape cases are ever tried in the first place. Of the precious few that are ever reported, most are deemed too difficult to bring to trial.

Why... why do they think they need to lower that number? WHY!? It's so easy to assault and destroy a woman, physically and emotionally, and get away with it. Not men, though. Kill a man in self defence and spend your life in jail. And I hear so many people complaining that women make this shit up...

I come from a family in which I'm the only woman who hasn't been assaulted in some way. None of my female relatives have even sought justice. Maybe this is why.

That's ridiculous. Clearly a prosecutor is entitled to say (in opening or closing arguments)

"The facts, ladies and gentlemen, clearly (will) show that the accused entered the bedroom of the victim and raped her"
or whatnot.

the guy is freakin' CHARGED WITH RAPE! And the charges ALWAYS get dicussed throughout a trial. That makes no sense.

stupendousness,

Sufficient evidence of the crime is questioned at the Grand Jury, where the defendant does not have counsel or provide witnesses. Under your statements, then, if the defendant's defense is that the intercourse was consensual, he is guilty. His statements agree that intercourse occurred, and your evidential logic concluded that any intercourse was rape.

As others have mentioned, would a judge prevent a mugging victim from saying he was mugged?

Exactly. Now, banning conclusory language in a trial is one thing. Sometimes it's even valid. What is truly warped about this judge's order, however, is the replacement language. Making a rape victim subtitute sex for rape when describing what was done to her is like requiring "He robbed me at gunpoint" to be substituted with "I gave it to him as a gift in exchange for him showing me his gun." I have never heard — until now — of a court actually requiring someone to describe something as its virtual opposite.

Personally, if I were the victim testifying here, I'd simply respond to the question of what was done to me as follows:

"I can't say. I can either commit perjury to avoid contempt or be held in contempt for not committing perjury."

So when they find the defendant "guilty" or "not guilty" (god forbid), do they not get to read the law he is accused of breaking?

Sexual assault is the NAME of the CRIME.

This is ridiculous. As has been said, the case can be tried without using "the words rape, sexual assault, victim, assailant, and sexual assault kit", but it shouldn't have to be that way.

I mean, she asked him to stop; he did. That's good for him. However, since he started having sex with her while she was asleep, and she doesn't remember giving permission before hand, it's a rape trial. Prohibiting the word from being used is unfair, except in situations where the prosecution lawyer and/or witnesses call the defendant "the rapist" before a "guilty" verdict. (Obviously, the word is overly prejudicial in those circumstances.)

As far as I can tell, most juries just want to hear clear, concise language in as little time as possible, make a decision, and go home. "Rape" may be a loaded word, but it's also a concise way of saying "I'm certain this individual initiated sex with me without my consent".

The circumstances of how and why the victim's certain she was raped can be established in responses to follow-up questions.

Oh, and as I forgot to say in my previous post, as an incoming law student, this is outrageous. It makes me wish there was appeals court for the accuser.

That's double jeopardy, Bryan. As you know, the only recourse the victim has (if a "not guilty" verdict is given) is civil court. I'm no law student, but I'm pretty sure even a "not guilty" defendant can be found culpable in civil court.

That then gets us into the can o' worms that is claims and counter-claims, doesn't it?

Correct, it is double jeopardy. But gross negligence in favor of the defendant doesn't make me feel so bad about that. If the first trial was a sham, a second one doesn't seem like a bad idea.

And your absolutely correct, civil court is an option, and has a lower burden of proof, but it only serves to provide monetary recourse. Rapists should not be walking on the streets, even broke.

It makes me wish there was appeals court for the accuser.

I'm not sure what the specific situation in Nebraska is, but this seems like the exact sort of case for which the interlocutory appeal procedure that exists in many jurisdictions is made for. An interlocutory appeal is filed before the case is decided in the trial court to challenge some "final collateral order" — an order that does not constitute a final disposition of the case — if the interests of a party are sufficiently compromised by the order to warrant an extraordinary mid-trial appeal.

Assuming that is the case in Nebraska, this wold certainly qualify, since it does not actually determine the guilt or innocence of the defendant, but will put the prosecution at such an extraordinary and unreasonable disadvantage that an acquittal becomes practically a foregone conclusion.

"Rapists should not be walking on the streets, even broke."

I agree, but as far as I can tell, the "interlocutory appeal" Elise mentioned is probably the best option for getting things done without compromising the "not perfect, but usually sufficient" legal system we have right now.

The judge's decision is dumb. That's not in question. My take on the "one crime, one trial" position has more to do with not wanting to set precedent that can be applied to other sorts of trials, like murder or kidnapping, than anything specific to a rape trial.

I hate my homestate sometimes.

Rebecca,

I see your point, and agree with it. There is definitely a precedent set, and in law, slippery slope arguments are usually true. The interlocutory appeal sounds like a wonderful solution, and I can only hope something like that exists in the state the trial is held.

Oh, and just because I'm going to law school doesn't mean I know anything about law. Its only been a hobby to me, no one has actually taught me anything yet.

I'm desperately trying to imagine a murder trial without the words "killed, murdered, died, stabbed, investigation, forensics" or the like. I'm failing.

Wouldn't the jury wonder what the charges are even about? I mean, really - how can you prove sexual assault without talking about it??

Ok lets see... sex is an enjoyable act between two consenting individuals, whereas rape is an assault that is about power, control, and most importantly, violence.

So that would make robbery be maybe receiving gifts? Beating would be a aquainting oneself? Murder would be supporting another on their deathbed? That seems about the right level of contrast between the terms sex and rape...

Let's also remember Safi has been accused of the same crime with the same method (finding intoxicated women, taking them home, and raping them while they are passed out) twice before.

If the judge doesn't want the word rape, she needs to use the words attacked, invaded, harmed, assailed, hurt, forced, and assaulted, never sex.

Beating would be a aquainting oneself?

Perhaps it would be "receiving an intensive, full contact amateur massage and chiropractic session.

My suggestion over at the Feministe post about this case is to use words that are explicitly stated in the criminal statute for rape. It will be more traumatic for the victims, of course, but perhaps if victims can piece together all of the elements of the crime in their very own testimony (i.e., saying he sexually penetrated her, and she was unable to consent, because she was unconscious), it might work as well -- or possibly work even better -- than saying that he raped her.

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.'

So factually describing what happened--you were assaulted in a sexual manner--is not your eyewitness account, but rather a legal conclusion?

Also, as someone who has testified in a rape case [I had to go over the rape kit in detail and explain all the steps to the jury], I'm just wondering, if I can't say "rape kit", what would I be describing to the jury...the sex kit? And how would I explain the indication for doing the kit "Um, the second we hear a patient has had sex we break out the sex kit and start collecting evidence?"

uhhh... yeah...if i were raped, i'd totally want to call it "sex"...the same way i call what my boyfriend & I do together "sex".
im glad we're identifying both of those things the same way.

uhhh... yeah...if i were raped, i'd totally want to call it "sex"...the same way i call what my boyfriend & I do together "sex". im glad we're identifying both of those things the same way.

It occurs to me that the words aren't even syntactically compatible:

1. We had sex.

2. We raped.

Both utterances are possible in the English language; however, the implied elements are entirely different. In both cases, there is no explicit direct object (what would be called the PATIENT theta role), but in both cases the PATIENT is both clearly implied and completely different.

In 1, the phrase is implicitly reflexive. "We had sex" means "I had sex with someone, and that person did the same with me." On the other hand, in 2, "We raped" does not have any reciprocity implied; it is, instead, a statement that two or more people raped some unspecified number of third parties.

grr...i can just imagine a jury sitting there...confused why they are even there if this trial is about whether or not someone had sex. if you are going to throw out the words, at least give the jury a heads up, b/c last i checked, sex was legal. how is that even right? can someone tell me how that isn't prejudicial to the jury, if they think it is sex, and not sexual assault? unbelieveable! i also agree...however, that in this circumstance, maybe the language of the law should be used...however painful...b/c giving up would be worse. i can't imagine having to equate something incredibly enjoyable w/ such an awful horrific event. obviously this judge cares nothing about what the victim is going through!
i am so disgusted.

As one rape survivor put it: "Sex is to rape as a kiss is to a punch in the mouth."

I don't want to defend the judge's decision, but the idea that "[t]he rape occurred, or else law enforcement would not have been able to bring charges in the first place" and that all that it's acceptable for the defence to say is that the accused isn't the person who committed the rape is ridiculous.

In the majority of rape cases (and in this particular case) there is no question about the identity of the accused, because he is known to the victim. The only issue at the trial is whether a rape took place or not.

Sexual assault is hardly unique in this regard. There are many other crimes, such as dangerous driving, murder, and fraud, where the defence is often that the crime did not occur.

the idea that... ...all that it's acceptable for the defence to say is that the accused isn't the person who committed the rape is ridiculous.

Where did anyone suggest that? It was suggested that the judge shouldn't start off the case that way. The defense can most certainly try to argue the assault didn't take place- it's bullshit for the judge to push the case in that direction, though. The prosecutor must think that an assault took place, or there wouldn't be a trial.

Sexual assault is hardly unique in this regard. There are many other crimes, such as dangerous driving, murder, and fraud, where the defence is often that the crime did not occur.

Sexual assault is unique, though, in that the victim starts off the case assumed to be a liar. When a fraud case goes to trial, the person who was defrauded is not treated like a manipulative liar just out to ruin someone's reputation. In other victimed crimes, we generally treat the victims with tact and respect. It may turn out that the victim was wrong, or lied, or picked the wrong person or any number of other things- but we don't generally work from the position of "Well, she's probably just making this shit up..."

It may turn out that the victim was wrong, or lied, or picked the wrong person or any number of other things- but we don't generally work from the position of "Well, she's probably just making this shit up..."

Which is what makes this order particularly revolting.

Women who have been raped — especially those with no visibly disfiguring injuries to show for it — often come into the courtroom with two strikes against them already, with all of the propaganda out there about how "this rape thing has gone too far" (NB: the talking about rape thing, not the committing rape thing).

By requiring the victim to paraphrase what was done to her, and not even explaining it to the jurors, the court is creating the impression that she's making it up as she goes along ("Are you shitting me? You could see her going through give drafts of her testimony each time someone asked her a question, and you'd think she'd come up with something better than "intercourse". I'm voting not guilty.").

That last line should read "five drafts", not "give drafts.

So what if this woman does say "rape" in her testimony? Is the jury going to be told to disregard the word? Is she going to be arrested?

Back in the 1970s, singer/songwriter Malvina Reynolds composed a song about a similar Neanderthal judge. Her song was used as a rallying cry in a successful recall petition. Perhaps we need to dust it off, update it and sing it again. Some of the words included: "The judge took his position and the judge he wouldn't budge/so we got up a petition and we're gonna budge the judge!"

"Ok lets see... sex is an enjoyable act between two consenting individuals, whereas rape is an assault that is about power, control, and most importantly, violence."

The impression I got is that sex is sometimes enjoyable and consensual, and that rape is forcing someone to have sex against her or his will (which makes it both a type of violence and a type of sex).

For example, I've never found anyone willing to have sex with me. I don't want to rape anyone (I heard that it is possible for a woman to rape a man). Am I a virgin by choice (because I choose to not have sex with someone against his will) or a virgin not by choice (because even if I did rape someone I'd still never have had sex)?

Mina,

If you were to rape someone, you would consent to the act of intercourse - ergo, not a virgin. If you were raped, you would remain a virgin, as you did not have sex.

(Or, as someone so brilliantly put it once, "Saying that rape is your first sexual experience is like saying that being hit over the head with a rolling pin is your first experience with cooking.")

The sexual history of sexual assault victims are generally not allowed to be discussed in rape trials. See Federal Rules of Evidence 412-414. http://www.law.cornell.edu/rules/fre/rules.htm#Rule412

What is generally allowable is evidence that the assailant committed similar crimes. (FRE 413)

"Sex" is not the only word that a victim can use to describe the facts, there are hundreds more.
http://www.kentlaw.edu/perritt/blog/2007/07/judge-bans-word-rape.html