Judge bans the word "rape" at rape trial

June 24, 2007 7:11 PM

Judge bans the word "rape" from a rape trial.Jeffre Cheuvront, a Nebraska judge, "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." This move follows some tightening of language during trials meant to avoid unnecessarily swaying jury members. But has it gone too far this time?
posted by cmgonzalez (112 comments total)

What's the crime he's actually charged with? If it's something other then rape that ruling makes sense. There are rules about not bringing up a woman's sexual history, regardless of how it might show her to be a less reliable witness.
posted by delmoi at 7:21 PM on June 24, 2007

Rape is a legal conclusion - it is perfectly acceptable for it to be banned from a trial until the state has proven each and every element of the crime beyond a reasonable doubt.
posted by miss meg at 7:21 PM on June 24, 2007

"it" meaning the word rape.
posted by miss meg at 7:21 PM on June 24, 2007

Ladies and gentlemen of the jury, I am going to argue that the defendant -- with full foreknowledge and malicious intent -- did, in fact, on the night of 30 October, 2004.....

....um,......

....do something really, really awful. So awful, in fact, that you should send him to prison for a long time.

Now I can't tell you exactly what he did -- you're just going to have to take our word for it -- but it was really, super bad.
posted by Avenger at 7:21 PM on June 24, 2007 [3 favorites]

Sexually assault, man. The term is SEXUALLY ASSAULT.
posted by IronLizard at 7:24 PM on June 24, 2007

engage in nonconsentual sex?
posted by blue_beetle at 7:25 PM on June 24, 2007

So why doesn't the prosecution just move that the judge ban the word "innocent"?

This seems like a bad move since, now, every time the prosecution wants to take about what's going on they must describe the situation in specific and graphic terms. "Brutally assault" is, for example, still fair game.
posted by Kid Charlemagne at 7:25 PM on June 24, 2007

This seems like a bad move since, now, every time the prosecution wants to take about what's going on they must describe the situation in specific and graphic terms.

Seems like the prosecution would want to do that anyway. Their job is to disgust the jury as much as possible.
posted by delmoi at 7:28 PM on June 24, 2007

Kid Charlemagne - that's the point though. In order to prove rape the state has the burden of proving that a penis was inserted into the vagina against the will of a woman. It is graphic, it is unpleasant for everyone involved, but is necessary to ensure that the state is living up to its obligation.
posted by miss meg at 7:28 PM on June 24, 2007

this judge is so silly
posted by caddis at 7:40 PM on June 24, 2007

I don't know enough about the specifics of this case to comment on it, but this is really fucked up in general. The word sex would imply consent to any common-sense American juror, and if the victim (complainant?) is forced to use it in their statements in place of rape it will weaken their case. A graphic description of the actions would sound oddly clinical, and not convey the same emotional tone unless there was a lot of force, bruising or tearing going on. I could accept the prosecution being banned from using the words, but not the witnesses.
posted by BrotherCaine at 7:45 PM on June 24, 2007

I can sort of see why. It's a hot button issue. People seem to lose all sanity when the word "rape" comes up. You might also remember it as "a fate worse than death." I've personally seen what were rational, level-headed folks turn into gibbering, bloodthirsty maniacs at the mention of the word and the pointing of a finger, trying to pick fights with anyone who questions the event, hiding out in a cellar with a rifle because someone is "coming for" them. You'll note the elaborate punishment rituals people devise, too. Or the way we have a lot of folks suddenly getting out of jail on DNA evidence - you know, from convictions back when all it required was an accusation, the wrong skin color, and some tears.
posted by adipocere at 7:48 PM on June 24, 2007

Rape is a legal conclusion - it is perfectly acceptable for it to be banned from a trial until the state has proven each and every element of the crime beyond a reasonable doubt.

This makes no sense. Do we ban the word "murder" in murder trials? "Larceny" in theft trials? "Arson" in arson trials.

A lot of courts have banned using the word "victim" because it creates a prejudicial presumption in jurors that the defendant is guilty. I think that makes sense, although I don't feel strongly about it either way.

Banning the word "rape" puts the alleged victim in the outrageously ridiculous position of testifying that she was...what? She can't say she was raped, even though that is what she is asserting. The prosecutor has to tell the jury he is proving...what? Rape is the name of the crime. Instead, I guess they will have to substitute a tortuous and circuitous phraseology that mimicks the definition of rape. Furthermore, the Federal Rules of Evidence have enshrined rape shield laws into the very fabric of trial procedure. This is a pretty clear sign that our legislators and the relevant judicial branch members intend to offer extra protection to alleged rape victims. This ban goes against that policy decision's intent.

If anything, this will just be extremely confusing and bizarre for the jurors and probably create more prejudicial confusion than having the jurors hear the word "rape."
posted by Falconetti at 7:50 PM on June 24, 2007 [1 favorite]

victim (complainant?)

On preview, BrotherCaine correctly notices that the word that replaces "victim" in jurisdictions that have banned the word from trials is "complainant." There is no such substitute for the word "rape."
posted by Falconetti at 7:52 PM on June 24, 2007

Language Log commentary on this issue, by Roger Shuy, who specializes in language and the legal system.
posted by Arturus at 7:54 PM on June 24, 2007

This is appalling; the plaintiff couldn't even say that she was examined by a SANE nurse without being threatened with a mistrial, since Sexual Assault Nurse Examiner would be predjudicial.

As It Happens interviewed Tory Bowen last week, it's definitely worth listening to(mp3).
posted by Alvy Ampersand at 7:54 PM on June 24, 2007

Or rather, had to say she was examined by a SANE nurse, without the jury being told what the acronym stood for.
posted by Alvy Ampersand at 7:55 PM on June 24, 2007

Sexually assault, man. The term is SEXUALLY ASSAULT.

The article indicates that phrasing is also proscribed.
posted by musicinmybrain at 8:01 PM on June 24, 2007

This is silly and will result in a mistrial.

But, it sounds like the guy will eventually be found not guilty anyway:

owen met Safi at a Lincoln bar on Oct. 30, 2004. It is undisputed that they shared some drinks, and witnesses saw them leaving together. Bowen claims not to have left willingly and has no memory of the rest of that night. She claims to have woken up naked the next morning with Safi atop her, "having sexual intercourse with her." When she asked him to stop, he did.
posted by drjimmy11 at 8:07 PM on June 24, 2007

Roofies?
posted by IronLizard at 8:10 PM on June 24, 2007

But, it sounds like the guy will eventually be found not guilty anyway

Yeah, because that description makes it sound like a wacky screwball comedy...we could call it Golly, How did THAT Get There?...or also that she was maybe roofied and not supposed to wake up in the course of getting raped, which would be...well...less wacky.
posted by kittens for breakfast at 8:15 PM on June 24, 2007

This makes no sense. Do we ban the word "murder" in murder trials? "Larceny" in theft trials? "Arson" in arson trials.

Hopefully. A witness shouldn't be able to get on the stand and say, for example, "I saw the defendant commit larceny with my own two eyes." That a legal conclusion. The witness should just say what he saw.

A graphic description of the actions would sound oddly clinical, and not convey the same emotional tone unless there was a lot of force, bruising or tearing going on.

That's not necessarily a bad thing. The emotional tone isn't an element of the crime.
posted by Mr. President Dr. Steve Elvis America at 8:23 PM on June 24, 2007

Hopefully. A witness shouldn't be able to get on the stand and say, for example, "I saw the defendant commit larceny with my own two eyes." That a legal conclusion. The witness should just say what he saw.

The problem is that the word that denotes the legal conclusion is often the same common word that is used by the average person as a descriptor. In this case, the woman who claims she was raped will have to say she had "intercourse" with the alleged rapistintercourser. I think that is an untenable position to put a complainant in, requiring either awkward locutions and testimony that will sound forced and artificial or contempt of a judge's orders.
posted by Falconetti at 8:30 PM on June 24, 2007

And anyway, if a witness says "I saw defendant commit larceny with my own two eyes," it is not as if defense counsel won't have the opportunity on cross to take apart that statement if some element of larceny could not have been seen by the witness.
posted by Falconetti at 8:32 PM on June 24, 2007 [1 favorite]

I think that is an untenable position to put a complainant in, requiring either awkward locutions and testimony that will sound forced and artificial or contempt of a judge's orders.

The prosecution has ample opportunity to prepare the complaining witness to prevent the testimony from sounding awkward or forced.

In any event, a trial is not the place for a victim to tell her story in her own words, particularly not if those words draw legal conclusions that will cause prejudice.
posted by Mr. President Dr. Steve Elvis America at 8:40 PM on June 24, 2007

Here's an article that summarizes the deadlock from the first trial; the guy has a shady past but there's a few things that the jury heard that were enough for reasonable doubt for some.
posted by Challahtronix at 8:44 PM on June 24, 2007

And anyway, if a witness says "I saw defendant commit larceny with my own two eyes," it is not as if defense counsel won't have the opportunity on cross to take apart that statement if some element of larceny could not have been seen by the witness.

Why let them say it in the first place, though? What's wrong with making witnesses testify simply to what they observed in the first place?
posted by Mr. President Dr. Steve Elvis America at 8:44 PM on June 24, 2007

"surprise sex" doesn't have the same cachet.
posted by wires at 8:44 PM on June 24, 2007

This is Nebraska, after all -- a state which in the late 70's passed a law changing the state constitution to deny bail for "sexual offenses involving penetration by force or against the will of the victim". In short, until it was knocked down by the Appeal's court in '81, an accusation was sufficient to send someone to jail for months.

We tend to overcompensate here in Huskerland.
posted by RavinDave at 8:45 PM on June 24, 2007

This is silly and will result in a mistrial.

Well, that already happened once. But if the jury unanimously acquits him, then how could there be a mistrial? On the other hand, if they convict, then there is no way he'll get an appeal since the judge has bent over backwards this way.

The problem is that the word that denotes the legal conclusion is often the same common word that is used by the average person as a descriptor. In this case, the woman who claims she was raped will have to say she had "intercourse" with the alleged rapistintercourser.

That's not true. She can say something like "He held me down and stuck his penis in my vagina, after I repeatedly begged him not to do it." It's pretty clear, and it's not a bastardization of language at all. Now, it does sound childish, but the point is, a graphic description of what happened should serve in place of rape.
posted by delmoi at 9:11 PM on June 24, 2007

As the article points out, there isn't a stark dichotomy between banning the word and allowing it. The judge can caution the lawyers and witnesses in the jury's presence to avoid using the word for the reasons that have been discussed. The judge can also instruct the jury not to draw any inferences from the fact that someone used the word. Putting the issue out in the open strikes me as the best way to balance the need for expressive language against the likelihood of unfair prejudice.
posted by brain_drain at 9:21 PM on June 24, 2007 [1 favorite]

That's not true. She can say something like "He held me down and stuck his penis in my vagina, after I repeatedly begged him not to do it." It's pretty clear, and it's not a bastardization of language at all. Now, it does sound childish, but the point is, a graphic description of what happened should serve in place of rape.

Well, she can't say that because she was supposedly asleep when it happened and woke up to it. But beyond that instance of the complainant testifying herself, the ban applies to the prosecutor as well, so he will either have to say "sex" or "intercourse" (which is what all the articles contend will be the result of this ban). I assume as well that the defense can ask questions like "Did you have sex with this man?" and the complainant will have to answer "Yes." How prejudicial will that sound to a jury?

What of a case where a woman was raped while unconscious and woke up to realize it after the fact. How is she supposed to describe that?

The more fundamental question is whether saying "rape" is so prejudicial by its very utterance that it justifies this judge's novel ruling? Maybe if there was actual data out there about the psychological and emotional influence that word "rape" has on a listener, then the judge's order would be more defensible. Maybe there are empirical studies out there about this issue, but I am not aware of them and the judge sure didn't consult any before making his ruling. If there is no proof, besides anecdotes and gut feelings, then we should be making important decisions in the court room about it.
posted by Falconetti at 9:22 PM on June 24, 2007

This is really interesting, the article Challahtronix linked too. Here's a quote:

Lindsay Pickering, 20, and the youngest member of the panel, heard similar comments.

“One said, ‘If he did it before, he’ll do it again,’” she said. “I think some of them went in (the jury room) thinking he was guilty.”

She said she grew frustrated with one juror in particular who, according to Pickering, was misusing the evidence from the Kansas City and Fort Riley incidents.

“I was saying you can’t use this for this purpose,” she said. “... I stopped talking. Seriously, I couldn’t believe how some of the jurors were acting.”

Juror Judy Quade-Anderson said she followed Cheuvront’s instructions about the earlier incidents.

It seems like the jurors who wanted to acquit were the ones who followed the instructions.
posted by delmoi at 9:23 PM on June 24, 2007

I assume as well that the defense can ask questions like "Did you have sex with this man?" and the complainant will have to answer "Yes." How prejudicial will that sound to a jury?

The way you phrased that sentence implies agency, which she says she didn't have. The girl could respond something like "he had sex with me" And anyway, I don't think that sounds at all as prejudicial as "And then he raped me"

What of a case where a woman was raped while unconscious and woke up to realize it after the fact. How is she supposed to describe that?

How could she describe it even with the word "rape"? She can't say "he raped me" because she didn't actually witness it.
posted by delmoi at 9:28 PM on June 24, 2007

I assume as well that the defense can ask questions like "Did you have sex with this man?" and the complainant will have to answer "Yes." How prejudicial will that sound to a jury?

Not at all, since the prosecution will already have elicited testimony that she had non-consensual sex with him on direct.

What of a case where a woman was raped while unconscious and woke up to realize it after the fact. How is she supposed to describe that?

She should testify that she woke up to find the defendant having sex with her. What's so hard about that?

Saying "rape" is prejudicial because it's legally conclusive. She's not the one who decides whether she was raped. That's the jury's job. The jury shouldn't be put in a position of feeling that they are required to make a finding simply because they think she's sympathetic. The jury should feel free to say, for example, "we believe you, or at the very least we believe you are testifying in good faith, but we don't think what you describe constitutes the crime charged."

Allowing witnesses to provide legally conclusive testimony interferes with the jury's ability to do this.
posted by Mr. President Dr. Steve Elvis America at 9:33 PM on June 24, 2007

My gut reaction to this was "how stupid!!", but honestly, I think it's a good thing. If a victim/accuser gets on the witness stand and says "the defendant raped me", that is all well and good, but the prosecutor is going to have to elicit a hell of a lot more information than that in order to convict. Rape is a legal conclusion, and is a terrible description in the context of a trial. Banning "He raped me" in favor of "I woke up and his penis was inside me; I was horrified because I had been asleep and I never told him yes" is not a travesty; it's a fair trial. It's not as if the judge banned the words "he forced me" "against my will" and "i told him no".
posted by gatorae at 9:47 PM on June 24, 2007

Allowing witnesses to provide legally conclusive testimony interferes with the jury's ability to do this

I guess we disagree on the level of prejudice saying a word like "murder" or "rape" causes in the minds of jurors as opposed to the degree of detriment it imposes on prosecutors. You're principled in your opinion, as you consider any legally conclusive language or language that has dual purposes to be ideally verboten, and I think your concern is legitimate.

These sort of language issues seem more appropriately a case-by-case consideration, with the judge, as was said above by brain_drain, being able to attempt to mitigate any potential damage by giving limiting instructions to jurors or allowing certain words only in particular contexts. Judges do this all the time when statements are offered not to prove the truth of the matter asserted, but for some other purpose, like impeachment. This sort of balancing act seems more flexible and appropriate to me than a total ban.
posted by Falconetti at 9:50 PM on June 24, 2007

“I prayed they’d try this guy again,” Foreman, 48, said in an interview on Thursday. “Not guilty didn’t mean we didn’t think he did it. ‘Not guilty’ says the state didn’t prove its case.”

Having just helped acquit someone of attempted murder, I can sympathize.
posted by Slothrup at 9:50 PM on June 24, 2007

These sort of language issues seem more appropriately a case-by-case consideration, with the judge, as was said above by brain_drain, being able to attempt to mitigate any potential damage by giving limiting instructions to jurors or allowing certain words only in particular contexts.

I suppose I don't see any reason to allow witnesses to say "rape," "murder," or "rob." I don't see what legitimate trial purpose it serves.

Mitigating instructions for dual purpose testimony don't work very well, and the sentence "he murdered him" isn't even dual purpose testimony. It's single purpose, and the single purpose is illegitimate, since the witness is testifying outside of his personal knowledge--even if he saw the defendant point the gun at the victim and pull the trigger.

I suppose I would ask you what legitimate trial purpose you think allowing this testimony serves.
posted by Mr. President Dr. Steve Elvis America at 10:42 PM on June 24, 2007

I'm ... I was going to start off by saying "I'm sorry, but--", and then I realized that no, I'm not sorry about saying this.

Anyone who thinks it's okay to bar the word "rape" from being used in a case about an alleged rape is a fucking asshole who has internalized the collective unconscious socially accepted misogyny. Full stop.
posted by tzikeh at 10:57 PM on June 24, 2007 [4 favorites]

You're making a fool of yourself, tzikeh. This is a fine point about trial procedure that can be argued both ways by reasonable people. It has nothing to do with misogyny.
posted by Mr. President Dr. Steve Elvis America at 11:03 PM on June 24, 2007

Cheuvront can be goofy, but he's not even remotely misogynistic.
posted by RavinDave at 11:05 PM on June 24, 2007

Rape is a legal conclusion - it is perfectly acceptable for it to be banned from a trial until the state has proven each and every element of the crime beyond a reasonable doubt.

Ludicrous. If the trial were not about the rape in question, it would be acceptable to ban it, but it's extremely pertinent.

She can't say "he raped me" because she didn't actually witness it.

She woke up with a penis in her vagina that she didn't ask to be there. If that's not witnessing rape, you need to get your head checked.
posted by oaf at 11:20 PM on June 24, 2007 [1 favorite]

She woke up with a penis in her vagina that she didn't ask to be there. If that's not witnessing rape, you need to get your head checked. -- oaf

I need to et my head checked? You need to learn to read.

What of a case where a woman was raped while unconscious and woke up to realize it after the fact. How is she supposed to describe that?

How could she describe it even with the word "rape"? She can't say "he raped me" because she didn't actually witness it.

I was talking about Falconetti's hypothetical situation, not the actual case. You're supposed to read the italicized stuff too, you know.
posted by delmoi at 11:25 PM on June 24, 2007

She woke up with a penis in her vagina that she didn't ask to be there. If that's not witnessing rape, you need to get your head checked.

See? You don't even know the elements of rape in the Nebraska. This is precisely why not letting people say "rape" during a trial is a good idea.

Get your own head checked.
posted by Mr. President Dr. Steve Elvis America at 11:28 PM on June 24, 2007

This is precisely why not letting people say "rape" during a trial is a good idea.

In what backwards jurisdiction do judges not give any instructions to juries?
posted by oaf at 11:51 PM on June 24, 2007

Banning the word "rape" puts the alleged victim in the outrageously ridiculous position of testifying that she was...what? She can't say she was raped, even though that is what she is asserting. The prosecutor has to tell the jury he is proving...what?

It seems that this could both be a reasonable standard for witness testimony and an absurd obstacle for the prosecution's closing arguments.

Witnesses shouldn't really be testifying as to foregone conclusions of a trial, should they? You don't ask a witness on the stand if he/she saw someone commit nth-degree murder or manslaughter, you ask if he/she observed a violent act and its attendant facts and details. The legal process will bear out whether it constitutes murder or manslaughter.

In the same way, it doesn't make sense that you'd ask a witness if he/she'd been raped or observed a rape unless it was the verdict of another trial. As a witness, their role in the fact-finding of the case is not diminished by leaving the legal determination of "rape" to the jury.

On the other hand, it is the job of the prosecutor to argue for one interpretation of the facts, and it's impossible to ask the jury to find that said facts constitute rape, or assault, or murder, when you're not allowed to say the word in your closing arguments. The word must be used in closing statements.
posted by kid ichorous at 11:52 PM on June 24, 2007

On the other hand, it is the job of the prosecutor to argue for one interpretation of the facts, and it's impossible to ask the jury to find that said facts constitute rape, or assault, or murder, when you're not allowed to say the word in your closing arguments. The word must be used in closing statements.

This occurred to me as well. I think it's likely just a matter of poor reporting and the judge has every intention of allowing the prosecutor to say "sexual assault" during the closing (there's no crime of "rape" in Nebraska).

In what backwards jurisdiction do judges not give any instructions to juries?

Prophylactic measures are better than curative ones.
posted by Mr. President Dr. Steve Elvis America at 11:59 PM on June 24, 2007

We were having an argument and the defendant then put a bullet in me that I didn't ask to have put there.

There. No messy legal conclusions.
posted by madamjujujive at 11:59 PM on June 24, 2007 [2 favorites]

We were having an argument and the defendant then put a bullet in me that I didn't ask to have put there.

I think you can say "he shot me." Shooting isn't automatically a crime—just ask the Vice President.
posted by oaf at 12:02 AM on June 25, 2007 [1 favorite]

I have an issue with the bit where the jury isn't even allowed to know that some words have been banned. When they hear something like 'I woke up and he was having sex with me' it's really not going to sound that bad, and they won't even realise that the witness is being forced to describe it like that rather than use the more descriptive (and more accurate terms) that they would expect from someone who has been sexually assaulted. Might as well have a mugging victim testify 'he ran up to me and I gave him my handbag'.

I can kind of understand not using the word rape, but cutting out the terms that describe the actual crime he's accused of, that's going too far. Be straight with the jury otherwise how are they supposed to make a good decision?
posted by shelleycat at 12:26 AM on June 25, 2007

Complainant sounds whiny. Isn't such a term prejudicial for the victim?
posted by Cranberry at 12:28 AM on June 25, 2007 [1 favorite]

We were having an argument and the defendant then put a bullet in me that I didn't ask to have put there.
There. No messy legal conclusions.

You're torturing this on purpose - it's not difficult or unnatural, it's actually what's expected of a witness. Do you really not believe that witnesses can and should give strictly fact-finding accounts of an event without legal speculation?

"I shouted 'stop' and attempted to leave, but the defendant pinned my arms and forced himself onto me..."

"We were arguing, and the defendant drew a gun and shot at me as I turned to flee..."
posted by kid ichorous at 12:33 AM on June 25, 2007

I hope they had to say smurf instead.

"On the night in question, did you smurf Ms Bowen?"

"No, I did not smurf Ms Bowen. I wasn't even smurfing there."
posted by chuckdarwin at 1:19 AM on June 25, 2007 [2 favorites]

We were having an argument...

Objection.

Argument is conclusive. It presumes the defendant was in an argumentative mood, or acting in an argumentative way.

Sustained. Strike from the record.

We were having a heated discussion...

Objection.

You honor, "a heated discussion" is no less presumptious.

Well, he was yelling at me, chimes in the witness.

You haven't been asked a question.

Yes, I have. I'm trying to answer it, but I can't just say we were having a discussion. That man who I know has twice been convicted of rape (points to the defendant) was yelling at me at the top of his voice, calling me names, and threated me with 3rd degree aggravated manslaughter with intent to do grevious bodily harm... his words, not mine.

And then the bastard shot me with the concealed handgun he was carrying without a permit within 200 feet of a school. He ran to his uninsured, car double-parked outside and then drove off at twice the posted speed limit.
posted by three blind mice at 1:23 AM on June 25, 2007

My example is silly but no more tortured than having to use weasel words to avoid saying "rape" or "sexual assault" to describe an alleged crime. If so, why then wouldn't any charge be potentially too prejudicial? How about statutory rape when it comes to children? Can we still say rape then or do we need to think up some euphemisms so we won't influence the jury? (And why is the jury assumed to be so utterly feeble minded?)

If I am indeed shot, that's a fact and I am going to say "he shot me." And if I am indeed raped that's a fact and I want to say that. It is then up to me to make the case that what I am charging is the truth and up to the jury to render a decision based on the facts of the matter as presented. Charges do not imply a foregone conclusion - innocent until proven guilty, remember?
posted by madamjujujive at 1:45 AM on June 25, 2007 [1 favorite]

The prosecution has ample opportunity to prepare the complaining witness to prevent the testimony from sounding awkward or forced.

In any event, a trial is not the place for a victim to tell her story in her own words, particularly not if those words draw legal conclusions that will cause prejudice.
posted by Mr. President Dr. Steve Elvis America.

Whose words is the victim allowed to use? Is there an approved list?

Can a person claim to have been mugged, or is that a legal conclusion too? Perhaps 'The accused forcibly invited me to divest myself of my watch and valuables, via the expedient of sticking a gun in my face'?

If the testimony of a witness does somehow 'draw a legal conclusion' and the defence somehow fails to object, and the jury somehow brainlessly goes 'duh, she said rape so it must be true' the judge can always instruct the jury that the witness is using the word colloquially and the jury is not to infer a legal conclusion. Me, I kinda think juries aren't so dumb as to immediately prejudice just because the 'R' word is mentioned.
posted by kaemaril at 3:55 AM on June 25, 2007

This is totally moronic, and I can't believe how many people are seriously defending it. She's been barred from saying forced, sexually assaulted, explicating the acronym Sexual Assault Nurse Examiner, etc... Basically as a juror, if I couldn't understand the instructions that such terms are allegations, I should be kicked out on voir dire.

Anyway, if rape is not a crime in Nebraska (which it isn't, this is first degree sexual assault), what is the basis for banning the word? It has no legal weight.
posted by BrotherCaine at 3:59 AM on June 25, 2007

>> See? You don't even know the elements of rape in the Nebraska. This is precisely why not letting people say "rape" during a trial is a good idea.

Get your own head checked.
posted by Mr. President Dr. Steve Elvis America at 7:28 AM

>> (there's no crime of "rape" in Nebraska).
posted by Mr. President Dr. Steve Elvis America at 7:59 AM

Fascinating. You appear to be berating somebody for not knowing the elements of a non-existent crime.
posted by kaemaril at 4:05 AM on June 25, 2007

Just awful. Since I'm assuming the woman believes she was raped, whether or not the jury does, I can't imagine how violated she must feel by this. Rape is just as much about making someone helpless and forcing yourself on them as it is about the act of sex itself, and to be told she's not allowed to say anything that might, you know, point out she was raped is like being made helpless all over again.

Keep in mind as well that not only can they not use the words on the judges list, they can't tell the jury they're not allowed to use them. If I was tricked like that as a jury member I'd be calling for the judge's head. The point of having juries in trials is so your peers decide what evidence matters, not a judge.
posted by XQUZYPHYR at 5:13 AM on June 25, 2007 [1 favorite]

Keep in mind as well that not only can they not use the words on the judges list, they can't tell the jury they're not allowed to use them.

Bothers me too. And to make a generalization, it does seem to me that the people most inclined to think this a great legal innovation would be the first to damn "political correctness" -- and what's more stereotypically "PC" than being told you can't call a spade a spade? Weasel words indeed.
posted by kittens for breakfast at 5:20 AM on June 25, 2007

Can a person claim to have been mugged, or is that a legal conclusion too? Perhaps 'The accused forcibly invited me to divest myself of my watch and valuables, via the expedient of sticking a gun in my face'?

It's very simple: "The man approached me, drew a gun, demanded all of my money, jewelry and portable electronics, and threatened to shoot me if I didn't comply. So I complied." Just reporting the facts is a fine measure of fair testimony.

If the point of the trial is to determine whether rape has actually occurred, then allowing witnesses to assert their own conclusions of the facts, rather than just the facts, can be seen as prejudicial. Though I agree with kid ichorous that the word needs to be allowed in closing statements.
posted by effwerd at 5:50 AM on June 25, 2007

Having said what I said above, I should note that I agree completely with the following from the article:

Professor Robert Weisberg teaches criminal law at Stanford Law School, and he acknowledges that judges in rape trials face a particularly complicated challenge when it comes to keeping prejudicial or conclusory language from a jury. He has no problem, for instance, with the fact that courts have gradually jettisoned the word victim for the less loaded complainant. The former proves too much. But he cautions that there is no value-neutral word for unwanted sex and that the word intercourse "understates what happens in a rape case." He warns that a blanket ban on the word rape may in fact be the worst solution. A jury instruction from the judge or gentle admonitions that witnesses watch their language throughout the trial is the better, more transparent fix. "That," says Weisberg, "is what judges get paid for."
posted by effwerd at 6:03 AM on June 25, 2007

What I want to know is, how does the judge who made this ludicrous order intend to enforce it in his courtroom? If I'm, say, a doctor called to the witness stand and told "Oh, by the way, this is a rape case, but you can't say any of the following words because it might create prejudice against the accused rapist," you had damned well better believe that I would make it my personal mission to slip in as many accidental references as I could. At the very least, I'd start sentences with things like "Well, there's a four-letter word that sounds like 'grape' that describes what happened here, but I'm not allowed to say it, so..."

Even if the prosecutor's witnesses are a little less hostile and passive-aggressive than I would be, there is no conceivable way that they're going to get through a full trial without someone slipping up and letting the jury know that there's a list of verboten words. And, frankly, if a juror gets the notion that there are interdicted word, I'm inclined to think he'll put two and two together: trying to get a list of terms banned sounds like pretty powerful evidence of presumptive guilt.

And while we're at it, how exactly does this judge expect medical evidence to be given if he's forbidden terms like 'sexual assault kit' from being uttered in the courtroom? Is someone actually arguing that using proper medical terminology creates an inherent bias? How do you expect the prosecution's witnesses to present a case when they're forced into saying things like "I examined her with... uh... medical supplies and found evidence of.. uh... well, someone had stuck his thing into hers, and she reported that his was an unwelcome visitor at the time"? It's like something out of Kafka...
posted by Mayor West at 6:13 AM on June 25, 2007

It's very simple: "The man approached me, drew a gun, demanded all of my money, jewelry and portable electronics, and threatened to shoot me if I didn't comply. So I complied." Just reporting the facts is a fine measure of fair testimony.

Okay, again:

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

and
prosecutors upped the ante last month by seeking to have words like sex and intercourse barred from the courtroom as well. 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.

They are not allowed to say she went to the hospital and was given a rape kit. They are not allowed to say a forcible act was committed against her. They are not allowed to directly say she had sex against her will, which is what they are trying to prove in the matter of prosecution.They are allowed to imply it, or try to word their way around it- but they are essentially saying the alleged victim is not allowed to directly accuse the defendant.

To use your analogy, the judge has ordered that both parties are allowed to say the defendant asked the accuser for money, and the accuser gave money to him, and it's up to the prosecution to let the jury figure out "oh... I get it! Maybe she was mugged!"

She's accusing the guy of rape. Say he raped her, prove he raped her. It's a fucking trial, not a round of Taboo.
posted by XQUZYPHYR at 6:20 AM on June 25, 2007

This all needs to be put into a little more context. The rules that govern lay truth-seeking don't always apply to trials. There's always a tension between truth and prejudice in a trial: the judge must decide when to ban evidence or testimony that is relevant, but is too prejudicial to the defendant. For example, prosecutors are almost never allowed to introduce evidence about the defendant's past criminal history, even if it's for the same kind of crime he's on trial for now. In normal life, if you were trying to decide if a guy was a drug dealer, you'd naturally want to know if he'd dealt or used drugs in the past. But in the very circumscribed world of a trial, what he did in the past is too prejudicial. You don't convict someone for being a "criminal" in general; you convict him for the precise conduct he's charged with.

Now, I happen to believe here that the judge made the wrong decision in balancing the probativity of the word "rape" against the possible prejudice. But nevertheless, this is a crucial rule to guarantee fairness in the legal system. If we didn't have this rule, then defendants would be able to introduce evidence in a rape trial that the victim was promiscuous, that she was wearing a tight dress, etc. etc.
posted by footnote at 6:46 AM on June 25, 2007

They are not allowed to say she went to the hospital and was given a rape kit. They are not allowed to say a forcible act was committed against her. They are not allowed to directly say she had sex against her will,

No, you're wrong. She's able to testify to exactly what happened to her; she just can't use the word "rape."
posted by footnote at 6:48 AM on June 25, 2007

No, you're wrong.

No, I'm not.

Before the first trial, Cheuvront granted a defense motion to bar prosecutors from eliciting testimony or making arguments in front of jurors using words like “rape,” “sexual assault kit,” “victim” and “assailant.”

...Bowen won’t be able to explain to jurors why she’s using clinical words — or, worse, words that imply consent — when she describes the encounter with Safi.

They're not allowed to say rape kit. They're not allowed to extract the usage from witnesses. They're also not allowed to have a rape kit explained or defined by said witnesses.

So they're technically allowed to say she was given a rape kit, only they can't say "rape kit," or explain what one was, or say that she was given one without using a different term that they then aren't allowed to explain. Still standing by your position that's being allowed to "testify to exactly what happened to her?"
posted by XQUZYPHYR at 7:08 AM on June 25, 2007

She can still testify to the fact that she was forced to have sex against her will and was medically examined for evidence of this. Yes, I agree that the circumlocution is probably uneccesary to preserve fairness. But it's wrong to say she can't testify as to what happened. She just can't use certain words. Hysteria here really doesn't get you anywhere. This isn't some conspiracy by a sexist judge to defend a rapist; it's merely a bad evidentiary ruling.

And that the jury doesn't know she's been barred from using the word "rape" is nothing unusual. The jury never knows about earlier evidentiary rulings on prejudice -- informing them would nullify the whole point of ruling evidence inadmissible. Again, it seems strange if you're thinking about this from the perspective of normal truth-seeking, but this is a trial. Like it or not, truth is not the only goal in the criminal justice system.
posted by footnote at 7:24 AM on June 25, 2007

Hysteria here really doesn't get you anywhere.

Not to amble too far down Irony Lane here, but when arguing that any practice is not sexist, it is important -- if you wish your point to be taken seriously -- to avoid language loaded with sexist baggage (e.g., "hysteria").
posted by kittens for breakfast at 7:29 AM on June 25, 2007 [2 favorites]

"rape" may be a legal conclusion, but it's also a state of fact, the fact of intercourse minus the fact of consent. witnesses are sworn to testify to facts, and all it takes is one witness with the courage not to be gagged by this judge. what's the judge gonna do if i use the word "rape" in his courtroom, anyway? is he gonna turn all red-faced and start blustering at me? does he imagine that he will enjoy community support for this, and that he can keep his job without community support?

this judge sounds like he's pro-rapist and anti-truth in language, two good reasons for getting rid of him.

euphemizing the language is a game anyone can play. if the defendant is acquitted at a trial which lacks fundamental fairness for the victim, the victim's relatives won't lynch the defendant, oh no. they'll host him as the guest of honor at a necktie party. see?
posted by bruce at 7:31 AM on June 25, 2007

And if I am indeed raped that's a fact and I want to say that.

The reason there is a trial - theoretically - is because there is a disagreement over the facts. Now, in most cases, there is not an honest disagreement: one side is lying and pretending that something didn't happen that they know perfectly well did happen. But there are still some cases where there's actually a disagreement over the facts, and a case like this is a rare example where both sides may honestly believe their own story. It's not impossible that two people could get drunk & go home together and one could think it was rape and one could think it was drunken consensual sex.

That means that the very substance of the trial is working out not the facts, but the interpretation of the facts. It looks like the parties are not disagreeing so much over the incidents as the meaning of the incidents, so using the most neutral language to describe the events seems reasonable. If he did in fact take a sleeping woman into his bed then no jury is going to find that acceptable, and if she woke up in the middle of it, that does seem like an odd sort of drunkenness... But if she were just too drunk to make an informed decision, that can't really be blamed on the guy. Everyone makes mistakes.
posted by mdn at 7:33 AM on June 25, 2007

As the owner of a uterus, I claim the right to use the word "hysteria" whenever I want.
posted by footnote at 7:33 AM on June 25, 2007

As the owner of a uterus, I claim the right to use the word "hysteria" whenever I want.

Words fail me.
posted by XQUZYPHYR at 7:38 AM on June 25, 2007 [1 favorite]

As a gentleman of Scots-Irish descent, I claim the right to refer to "fucking micks" whenever I please, but that hardly invalidates the connotations of the term. Get thee to a thesaurus, I urge.
posted by kittens for breakfast at 7:44 AM on June 25, 2007

Have I somehow stumbled onto feministing.com? I thought this was metafilter. Really, I'm as unhinged a feminist as anyone on mefi (check my posting herstory) but I draw the line at reproofs for using the word "hysteria."
posted by footnote at 7:46 AM on June 25, 2007

The connotations of "hysteria" aren't any mistier than, say, those of "uppity"...there's quite a stretch between pointing out loaded words that undermine your argument by their very presence and suggesting you spell "women" as "womyn" or something similarly ridiculous.
posted by kittens for breakfast at 7:56 AM on June 25, 2007

I don't think the victim (loaded word, but this ain't court) should be able to refer to the defendant as a rapist any more than the defendant should be able to refer to her as "my willing sex partner".
posted by Challahtronix at 9:07 AM on June 25, 2007

Can the phrase "unrequested penis surplus" still be used?
posted by Bort at 9:09 AM on June 25, 2007 [1 favorite]

They are not allowed to say she went to the hospital and was given a rape kit. They are not allowed to say a forcible act was committed against her. They are not allowed to directly say she had sex against her will, which is what they are trying to prove in the matter of prosecution.

None of this is supported by your quote. You're wildly overreacting.
posted by Mr. President Dr. Steve Elvis America at 10:10 AM on June 25, 2007

And if I am indeed raped that's a fact and I want to say that.

The witness in this case admits that she does not have personal knowledge of all of the facts that would be required to support a rape conviction. All concerns about letting witnesses draw legal conclusions aside, why on earth should witnesses be allow to testify to things they admit they don't know?
posted by Mr. President Dr. Steve Elvis America at 10:12 AM on June 25, 2007

None of this is supported by your quote. You're wildly overreacting.

Sez article:

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.

Every single word is supported. You stand accused of the reckless piloting of a truck full of bullshit. How do you plead, my good man?
posted by kittens for breakfast at 10:22 AM on June 25, 2007

posted by Bort Can the phrase "unrequested penis surplus" still be used?

Based on the dickheaded comments in this thread, I certainly hope so.
posted by fandango_matt at 10:30 AM on June 25, 2007

Every single word is supported. You stand accused of the reckless piloting of a truck full of bullshit. How do you plead, my good man?

"She had sex against her will. The defendant forced her to have sex with him by penetrating her while she was unconscious and unable to struggle or protest."

Find any of the banned words in those sentences, idiot.
posted by Mr. President Dr. Steve Elvis America at 10:36 AM on June 25, 2007

Mayor West writes "how exactly does this judge expect medical evidence to be given if he's forbidden terms like 'sexual assault kit' from being uttered in the courtroom?"
And
bruce writes "all it takes is one witness with the courage not to be gagged by this judge. what's the judge gonna do if i use the word 'rape' in his courtroom, anyway? is he gonna turn all red-faced and start blustering at me? does he imagine that he will enjoy community support for this, and that he can keep his job without community support?"

I doubt there will be much blustering just jail time and fines.
posted by Mitheral at 10:51 AM on June 25, 2007

I think you're getting a little too personal over there, douchebag.
posted by kittens for breakfast at 10:52 AM on June 25, 2007

I think you're getting a little too personal over there, douchebag.

Yeah, I get a little testy when some ignorant nitwit calls bullshit on me. This thread is full of self-righteous retards ranting about stuff they don't know jack shit about, and worse, don't even care to know jack shit about. It's like listening to fundamentalist Christians talk about evolution.
posted by Mr. President Dr. Steve Elvis America at 10:58 AM on June 25, 2007

Settle down, Beavis. What exactly is everyone except you not caring to know jack shit about, making us all exactly like Christian fundamentalists? I feel as though you might be in a better position to share if you took a few deep breaths before you posted.
posted by kittens for breakfast at 11:00 AM on June 25, 2007

I think you're getting a little too personal over there, douchebag.
posted by kittens for breakfast at 1:52 PM on June 25 [+] [!]

I love it! And you were just calling in the feminist language police on me earlier...
posted by footnote at 11:04 AM on June 25, 2007 [1 favorite]

I'm quite calm. You're quite stupid. Consequently, I don't think this conversation has much potential, so I'll see you around.
posted by Mr. President Dr. Steve Elvis America at 11:04 AM on June 25, 2007

I'm quite calm. You're quite stupid.

BURN. We should have a dance-off or something.

I love it! And you were just calling in the feminist language police on me earlier...

Not at all. You chose your words poorly for the audience your words were attempting to reach. I chose my words correctly, as Steve really IS a douchebag.
posted by kittens for breakfast at 11:13 AM on June 25, 2007

I'm a bag used for holding fluid for vaginal irrigation?
posted by Mr. President Dr. Steve Elvis America at 11:28 AM on June 25, 2007

Are you, Steve? Are you?
posted by kittens for breakfast at 11:39 AM on June 25, 2007

No.
posted by Mr. President Dr. Steve Elvis America at 11:44 AM on June 25, 2007

...are you sure?
posted by kittens for breakfast at 11:46 AM on June 25, 2007

Yes.
posted by Mr. President Dr. Steve Elvis America at 11:51 AM on June 25, 2007

madamjujujive: And why is the jury assumed to be so utterly feeble-minded?

Well, don't you think it would be prejudicial if the defendant and plaintiff were referred to respectively as "the victim" and "the perjurer," throughout the proceedings, even if those making the statements felt that they were supported by fact?

Witness testimony is treated as evidence, given under penalty of perjury, and not as the legal musings and argumentation of a lawyer, given under penalty of contempt. As I understand it, it's not really the place for an eye-witness to be saying "Mr X raped Ms. Y." The witness there is offering a legal opinion, and the defense would naturally object, wouldn't they?

What the defense in this case has done is preemptively object to certain language. And don't get me wrong, I think this scattershot action can have serious drawbacks. If the prosecutor were unable to use the terms "sexual assault" or "rape" in his opening and closing arguments, it would devolve this trial into an utter farce and a travesty.

When they hear something like 'I woke up and he was having sex with me' it's really not going to sound that bad, and they won't even realize that the witness is being forced to describe it like that rather than use the more descriptive (and more accurate terms) that they would expect from someone who has been sexually assaulted.

Don't mistake the omission of certain words from testimony for imprecise language. "Rape," like "murder," is a broad legal term referring to a continuum of findings. Is a witness saying "X raped Y" really giving the jury a descriptive and accurate piece of evidence? It's not a more descriptive term, as it glosses over all the important factual details involving consent, penetration, and force. It's not a more accurate term, since it's the very same term we use both for a 17 year old sleeping with a 19 year old, and for a brutal attack in a back alley or a prison. Rather than a precise, descriptive piece of evidence, it seems more like a broad conclusion.
posted by kid ichorous at 12:00 PM on June 25, 2007 [1 favorite]

Then...perhaps you could address the question I put to you, however snarkily I did so? Because you've had a lot to say on this subject, and I would be curious as to what exactly it is that you find so flat-earth about the mentality of those who think this language should not be banned. I don't think I'm exaggerating when I say that you feel quite strongly about it, but I have yet to see an argument put forth that's truly compelling. What am I overlooking here?
posted by kittens for breakfast at 12:02 PM on June 25, 2007

What am I overlooking here?

As I'm sure you're aware, the Sixth Amendment guarantees that defendants charged with serious crimes are entitled to be tried by a jury. The jury's role is fact finding. The judge instructs the jury on the elements of the crime charged, and the jury decides whether the prosecution has proven facts supporting each element beyond a reasonable doubt.

We have to ask, then, why allow anyone to speak at all during a trial? It seems like a silly question, but the answer underlies all of evidence law. We allow people to speak during trial because it aids the jury in their fact-finding mission, and we allow them to speak to the extent it aids in that mission.

Statements that do not tend to prove or disprove an element of the crime charged, or provide background or support for other evidence that will, simply have no place in court, because they're irrelevant to the jury's fact-finding mission. More specifically, a witness testifying to his personal opinion about a legal matter (e.g. "he robbed him") is not helpful to the jury because the jury is supposed to decide for itself whether the law was violated. To fulfill its task, the jury needs testimony going to each element of the crime, not testimony going to the crime itself.

Additionally, many crimes (including rape) have elements that cannot necessarily be observed by a third party, or in some cases even by the victim. There's simply no reason to allow witnesses to testify to opinions that we know can't possibly be grounded in legally sufficient personal knowledge. Again, witnesses are called to aid the jury in its fact finding, and proffering partially unfounded legal opinions just isn't helpful.

It's no justification to say, "well, he really did rob him." I'm sure he really did! But the purpose of a trial isn't to punish the guilty through whatever method seems most expedient. The purpose of a trial is to provide the defendant with some minimum process in the face of an accusation by the state.

It's likewise no justification to argue that it will reduce the effectiveness of the testimony. Testimony isn't supposed to draw inflammatory conclusions, and if a statement of the actual facts (not legal opinions) is not enough to gain a conviction, well, maybe the defendant shouldn't have been convicted.

Finally, it's no justification to say that when a witness says "rape" or "rob" they aren't using those terms in the precise legal sense. It's probably true that they aren't, but it raises the question of just what they do mean by them, and how we hope to get this information to the jury. "He raped me" could mean a lot of things, some of which meet the legal standard and some of which don't, but "he forced his penis into my vagina while I was unconscious and unable to struggle or protest" only means one thing, and it's much more helpful to the jury.

What's more, there is scarce reason to allow the word. There's argument above that the witness won't be able to testify credibly without being able to say "rape" or "sexual assault," but I think this concern is overstated. The prosecution has ample opportunity to prepare the witness and develop her testimony before trial, and I don't think that the sort of factual specificity that is required when the word "rape" is disallowed is really the hallmark of dishonest testimony.
posted by Mr. President Dr. Steve Elvis America at 1:34 PM on June 25, 2007 [3 favorites]

The problem I have is that there is scarce reason to disallow the word "rape" if in fact "he forced his penis into my vagina" is an adequate substitute. As forcible penile entry into an orifice is what most people would think of when the word "rape" came into play, why bother banning the word to begin with? Surely the accuser would be expected to elaborate upon what she meant by rape; I can't imagine that "he raped me" would be considered adequate testimony even if the word were permitted. What, ultimately, is then the point of taking the word off the table other than to force the prosecution into ridiculous verbal gymnastics? Are words like "rape" and "sexual assault" really so charged that at their merest invocation the jury will see red, close their minds to any and all evidence to the contrary? Is this less likely to happen if the alleged victim gives a long and wrenching description of the mechanics of the alleged assault?

Unlike some, it's very hard for me to imagine that most jurors would see a man having sex with an unconscious woman as anything other than rape; the issue, it would seem to me, is not proving that what the accused allegedly did is in fact rape, but whether he did it at all. So I'm less concerned about the jury failing to convict due to a lack of comprehension vis-a-vis why they're even all sitting there when they should really be at work than I am just baffled that the judge should make a call that seems so patently ridiculous. Is there really sufficient reason to doubt that if the event happened as the alleged victim claimed, it is unambiguously an act of rape by absolutely any definition? Is there really a way in which a man could have sex with an unconscious woman due to a wacky misunderstanding? And is there really sufficient reason to think that use of the words themselves would prejudice the jury? I'm having a tough time answering these questions with anything other than a "no."
posted by kittens for breakfast at 2:46 PM on June 25, 2007

Forced was on the list of banned terms, so it'd have to be: "he put his penis into my vagina while I was unconscious and unable to struggle or protest".
posted by BrotherCaine at 2:58 PM on June 25, 2007

As forcible penile entry into an orifice is what most people would think of when the word "rape" came into play, why bother banning the word to begin with?

Here's the thing, though, I doubt the prosecution's theory of the case is one of "forcible penile entry," since the complaining witness admits that she doesn't know the circumstances of penetration. This is precisely why the judge won't let the word "rape" be said--the natural implications of the term are not supported by the personal knowledge of the witness and aren't even in line with the prosecution's theory of the case.

Rape is actually a quite complicated crime, with lots of different alternative elements, and we don't want the jury jumping to conclusions about what is or isn't rape. We want them to follow the judge's instructions and make findings of fact with respect to each element enumerated in the charge actually brought.

What, ultimately, is then the point of taking the word off the table other than to force the prosecution into ridiculous verbal gymnastics?

If the prosecutor can prove facts that support each of the elements of rape, he'll have no problem at all. If he can't, well, maybe he should be struggling. Remember, the jury decides whether a rape occurred, and the judge gives them the elements of rape. The prosecution just needs to prove each element, none of which refer to "rape." He has no reason to say "rape" (except in closing, and if the judge's ban extends to closing--which I doubt--he's insane).

Are words like "rape" and "sexual assault" really so charged that at their merest invocation the jury will see red, close their minds to any and all evidence to the contrary? Is this less likely to happen if the alleged victim gives a long and wrenching description of the mechanics of the alleged assault?

They're surely somewhat prejudicial, and since the terms, if used in testimony, are going to be opinion or conclusion, they're not good evidence. Only good evidence should be put before the jury. If the jury wants to convict after hearing a wrenching factual account of the incident, then the should go ahead and do so.

Unlike some, it's very hard for me to imagine that most jurors would see a man having sex with an unconscious woman as anything other than rape

Possibly, but "a man having sex with an unconscious woman" is not rape in Nebraska. The prosecution must prove at least one more element. Again, this is why the jury should be shielded from lay opinion and conclusions--they're often wrong, and they're often in line with and support the mistakes the jury is prone to make anyway.

Is there really sufficient reason to doubt that if the event happened as the alleged victim claimed, it is unambiguously an act of rape by absolutely any definition?

It's certainly not unambiguously an act of rape in Nebraska, even if the alleged victim's claims are true.

Is there really a way in which a man could have sex with an unconscious woman due to a wacky misunderstanding?

Not a wacky misunderstanding. The fact that the alleged victim doesn't remember anything prior to "coming to" doesn't mean she was lying there limply. In fact, she doesn't know what she was doing, because she can't remember.

Now, normally when people can't remember what they were doing and suddenly come to, they were lying limp and unconscious during that period they don't remember, but not always. People do initiate sex in their sleep. People do have weird memory lapses when they've been drinking. It happens.

That's why it would be pernicious to allow the complaining witness to testify that she was raped; she doesn't know what she was doing before she came to. She can't!

Now, you're scoffing at me. You're saying, come on, we both know she was lying there limply and that he raped her. I agree!

But it's the jury's call.
posted by Mr. President Dr. Steve Elvis America at 3:28 PM on June 25, 2007

That's why it would be pernicious to allow the complaining witness to testify that she was raped; she doesn't know what she was doing before she came to. She can't!

Now, you're scoffing at me. You're saying, come on, we both know she was lying there limply and that he raped her. I agree!

I'm laughing less at you than at the notion that a defense lawyer would make that argument. The idea that a jury could somehow buy it kinda makes me cry a little bit inside, though.
posted by kittens for breakfast at 3:46 PM on June 25, 2007

The idea that a jury could somehow buy it kinda makes me cry a little bit inside, though.

Why? She really doesn't remember what happened before she came to, and people regularly do all kinds of things when "unconscious." The defense isn't laughable.

It's perfectly possible that he woke up first, rolled over and initiated intercourse, and she unconsciously responded positively. He was perhaps still under the influence of sleep and alcohol himself and was not aware that she was actually completely unconscious.

I don't know if you've ever messed with sleeping people for fun, but they can do all kinds of things you normally associate with conscious action (sit up, get up, talk) and never have any memory of it.
posted by Mr. President Dr. Steve Elvis America at 4:00 PM on June 25, 2007

I'm laughing less at you than at the notion that a defense lawyer would make that argument. The idea that a jury could somehow buy it kinda makes me cry a little bit inside, though.

There's another argument, though it might not be pertinent to this case. Both of these people could have been absolutely smashed and both could have acted with impaired judgment. She may have, in her drunken stupor, consented to sex before passing out, and he might, in his own drunken stupor, have failed to stop once she fell asleep. They may have woken with completely different impressions of what transpired before.

There is sometimes an assumption that, in situations where neither party can reasonably give consent, a man must take sole accountability. It's similar to the occasional precedent of prosecuting underage boys for statutory rape for sleeping with underage girls. I'm not saying that it's the driving logic in this case, or that you're guilty of it, but there does seem to be a general disbelief that two people can be mutually stupid and irresponsible in bed.

Then again, there's also the possibility that he drugged her, and retained a level-headed mens rea throughout the act.
posted by kid ichorous at 5:51 PM on June 25, 2007

Is there really a way in which a man could have sex with an unconscious woman due to a wacky misunderstanding?

Unconciousness comes in many forms. Have you ever heard of sleepwalking? you are not conscious when you sleepwalk. you can do all sorts of quite complicated things when you sleepwalk that you have no memory of when you regain consciousness. I've had a number of sleepwalking incidents, and it is very disorienting to be told about or discover evidence of my bizarre behavior afterwards. So, yes, a man could have sex with an unconscious woman due to a "wacky misunderstanding" if a sleepwalking woman were sexually aroused, for instance. If that man kinda knew something was weird but took advantage of the situation anyway, that would be questionable but would it be rape? if the man had been drinking himself and just thought the woman was kinda drunk too, things become ever fuzzier...

What, ultimately, is then the point of taking the word off the table other than to force the prosecution into ridiculous verbal gymnastics?

Why do you think detailed descriptions are "ridiculous verbal gymnastics"? The whole point of a trial is to provide both sides of a story. It's perfectly obvious to you after reading a paragraph about the incident exactly what happened, who's right and who's wrong, who deserves what punishment and what justice is. Our justice system was created to work against precisely the kind of assumptions you're making. That doesn't mean your conclusion is wrong; your instincts may very well be spot on. But the problem is, everyone always thinks their instincts are spot-on, and we cannot trust our instincts when justice is at stake. We have to really invest in trying to listen to both sides of a story as fairly as possible. In this case, we have to give the accused the benefit of the doubt. We have to assume he is innocent until proven guilty.

So why take the word out? All the word means is that what he did should be legally reprimanded. It doesn't really provide actual information about the events themselves, but rather imbues a judgment on the events: in this case, whether or not it was rape is unclear, because it's dependent on whether the man could have honestly understood the woman to be consenting.
posted by mdn at 7:07 PM on June 25, 2007

It's perfectly obvious to you after reading a paragraph about the incident exactly what happened, who's right and who's wrong, who deserves what punishment and what justice is.

Well, shit, you feel comfortable reading my mind on the basis of maybe five hundred words of posting, so I guess we're both a couple of FBI profilers in training.

in this case, whether or not it was rape is unclear, because it's dependent on whether the man could have honestly understood the woman to be consenting.

If the woman was unconscious, it is difficult to see how she could have granted consent. Notions like "sleepwalking" seem, to me, to fall on the wrong side of Occam's razor. YMMV. I'm pretty sure what happened was the chick passed out and he fucked her, because it's the theory that requires the least amount of work, and the simplest solution tends to be the correct one, in my storied experience. Right behind that is the theory that she feels some kind of buyer's remorse for fucking this guy and has convinced herself that she was raped so as to absolve herself of responsibility. Could indeed happen. Right behind that is the theory that she, for whatever reason, trumped the whole claim up because she wanted to ruin the guy's life for some as yet undisclosed reason. No visible motive and it's a little bit Hollywood, but there are surely precedents for this behavior. All of these things are possible, but I would argue each is a little further down the chain of plausibility. "I thought you were digging it...what do you mean you don't remember, baby?" just kinda sounds like he got caught with his hand in the cookie jar. It's almost moronic enough to be true, I'll grant you. But it's physically impossible for me not to roll my eyes at the suggestion.
posted by kittens for breakfast at 9:01 PM on June 25, 2007

Well, shit, you feel comfortable reading my mind on the basis of maybe five hundred words of posting, so I guess we're both a couple of FBI profilers in training.

? I don't have to read your mind when you post stuff like "I'm pretty sure what happened was the chick passed out and he fucked her". The point is, you are "pretty sure" about that based on nothing but assumption and common sense. That is not what we base our legal system on, because it is actually not fair.

it's the theory that requires the least amount of work, and the simplest solution tends to be the correct one, in my storied experience

Yeah, this is exactly NOT how constitutional jurisprudence operates. With good reason. Your experience may make you comfortable drawing conclusions based on the simplest explanations, but when we're talking about people's lives & futures, we have to actually work out an equitable way to get as close to the truth as possible. We have advocates and rules and an unbiased overseer, and an unprejudiced jury of peers to draw a final conclusion, after having reviewed all testimony and evidence deemed relevant to the case. Even though you're pretty sure about what happened based on your gut feeling or common sense, the jury has to work things out in a more analytic way. That is a good thing.
posted by mdn at 10:29 PM on June 25, 2007 [1 favorite]

If the woman was unconscious, it is difficult to see how she could have granted consent.

I think some of the trouble is your lack of familiarity with Nebraska rape laws and just what the elements of rape in Nebraska are. You can find the Nebraska penal code online (and the relevant crime is actually titled "sexual assault").

As for the rest of your remarks, you don't really know how likely each of the scenarios you described is. You have some hunches, founded on a combination of speculation and spotty anecdotal information, but you don't really know. What's more, you don't even know how to find out.

Nonetheless, you appear to be dead-set in your beliefs, despite the fact that they rest on precious little but your own prejudices and preconceived notions. That's OK, though, because it doesn't really matter how poorly founded your personal beliefs are--you're entitled to believe anything you want.

But this is a criminal trial. The fact that certain defenses make it "physically impossible" for you not to roll your eyes is completely irrelevant. We're not just going to apply your intuitions to a superficial recounting of the case, find the defendant guilty, and call it a day.

I don't even know what you're arguing at this point. The judge should make evidentiary holdings based on what makes you roll your eyes? Based on what makes him roll his eyes?

Even obviously guilty defendants deserve a fair trial, and the judge in this case (the person who has more information about the details of the trial than anyone else on earth) has decided that a fair trial requires the witnesses and lawyers being barred from drawing certain legal conclusions during the trial through the use of certain words. This is an eminently reasonable ruling, since lay witnesses drawing legal conclusions during trial is never specifically allowed, but merely tolerated in certain circumstances in which it's deemed harmless.
posted by Mr. President Dr. Steve Elvis America at 10:48 PM on June 25, 2007

Yeah, this is exactly NOT how constitutional jurisprudence operates. With good reason.

Dude -- we're NOT deciding the case. WE CAN'T DECIDE THE CASE. I would feel very uncomfortable deciding the case with my cynically raised eyebrow as the major deciding factor. I would want to see evidence and hear testimony...those things that you are no more privy to than myself. In the courtroom, sure, let's hear your theory that she was a somnambulist or a split personality (one a nympho...the other a prude!!!) or what have you, but don't try to convince me, here on a message board, of the likelihood of these scenarios, because they're laughable, and I'm going to laugh at them accordingly. I'm sorry if this offends.

(Fewer convolutions are involved in the notion that the alleged victim is, for whatever reason, just consciously lying about her willingness at the time; should this conversation continue elsewhere, I would stick to this as the main ray of hope for the accused, were I you.)

All of which is not the argument besides -- what we were actually talking about was whether the judge was right to take hot button words out of play. I remain unconvinced. The case should play the same either way.
posted by kittens for breakfast at 5:22 AM on June 26, 2007

Dude -- we're NOT deciding the case. ... In the courtroom, sure, let's hear your theory that she was a somnambulist ... but don't try to convince me, here on a message board, of the likelihood of these scenarios, because they're laughable, and I'm going to laugh at them accordingly.

so you'll take these laughable theories seriously under the right circumstances, then? It's just ridiculous until you're in court?

All of which is not the argument besides -- what we were actually talking about was whether the judge was right to take hot button words out of play. I remain unconvinced. The case should play the same either way.

If the issue remains not whether they had sex, but whether the sex that they had was consensual drunken love or sexual assault, the reasonableness of the ruling is clear. If the woman says she was raped and then the man is asked, so did you actually have sex with her while she was unconscious, and he says yes, everyone in the room jumps to their feet with you, saying, case closed, before he has a chance to explain what he thought happened.

But if his story is honestly that he went home kinda drunk with a woman and they were having sex when suddenly she started telling him to stop, you at least want to know the rest of the story. Calling it rape from the start is going to subconsciously deter people from listening to what they'll interpret as the rapist's lies or excuses.

You may think it's laughable that someone could be in a blacked-out state but seem awake enough to an outsider, but the human body can handle a surprising amount of complexity just on reflexes and machinations, and if both parties had been drinking, it could have been drunkenly understood as drunkenness.

Maybe he should have known she was too far gone to consent - it's entirely possible it was obvious she was seriously out of it and he was less fucked up. Maybe she was passed out cold. Maybe he even drugged her, for all we know. But the point is, the jury has to make these calls without bias, and given that no one is arguing that an act of sex took place, it has to be described in neutral terms (as opposed to a case where the dispute is whether an act of sex ever took place - then it might be called rape because the accused can say they never had sex at all. In that case the jury doesn't have to distinguish the act itself from the interpretation of the act.)
posted by mdn at 7:02 AM on June 26, 2007

All of which is not the argument besides -- what we were actually talking about was whether the judge was right to take hot button words out of play. I remain unconvinced. The case should play the same either way.

You haven't really told us why you think the words should be allowed.

The "no legal opinions by a lay person" argument that's been offered above in several forms by me and other people is a winner, frankly. It's grounded firmly in the Sixth Amendment and long-standing principles of evidence law.

That, coupled with the "'rape' is misleading given the prosecution's theory of the case and implies facts outside of the witness' personal knowledge" argument should've sealed the deal, and I don't really see where the hang up is.

You keep rebutting with "I don't think it's that prejudicial," but the issue was never raw prejudice. The issue was relevance, which is tested without respect to prejudice. The linked article did a poor job explaining this, but that's really what's going on.

The testimony "I was raped" is irrelevant in this trial because it doesn't tend to prove or disprove any element of the crime charged. Irrelevant evidence can be excluded regardless of prejudice, and prejudice here is just icing on the cake.

Now, you seem to think the words shouldn't have been excluded, but it's really not clear why. If you think the evidence is relevant, where is the above analysis wrong, and what material fact does it tend to prove? If you think it's irrelevant but should be admitted anyway, why?
posted by Mr. President Dr. Steve Elvis America at 10:21 AM on June 26, 2007