Rape victim can't say she was raped at trial? What are these judges thinking?!?!?

[The Heretic]

http://www.kansascity.com/105/v-print/story/654147.html

Judge’s ban on the use of the word ‘rape’ at trial reflects trend
By TONY RIZZO
The Kansas City Star
It’s the only way Tory Bowen knows to honestly describe what happened to her.
She was raped.

But a judge prohibited her from uttering the word “rape” in front of a jury. The term “sexual assault” also was taboo, and Bowen could not refer to herself as a victim or use the word “assailant” to describe the man who allegedly raped her.

The defendant’s presumption of innocence and right to a fair trial trumps Bowen’s right of free speech, said the Lincoln, Neb., judge who issued the order.

“It shouldn’t be up to a judge to tell me whether or not I was raped,” Bowen said. “I should be able to tell the jury in my own words what happened to me.”

Bowen’s case is part of what some prosecutors and victim advocates see as a national trend in sexual assault cases.

“It’s a topic that’s coming up more and more,” said Joshua Marquis, an Oregon prosecutor and a vice president of the National District Attorneys Association. “You’re moving away from what a criminal trial is really about.”

In Jackson County, Senior Judge Gene Martin recently issued a similar order for the trial of a Kansas City man charged with raping a teenager in 2000. Despite the semantic restrictions, the Jackson County jury last week found Ray Slaughter guilty of forcible rape and two counts of forcible sodomy.

Slaughter’s attorney, who requested the pretrial order, declined to comment because she is preparing a motion for new trial. The judge also declined to comment.

Bowen’s case gained national notoriety and drew the attention of free-speech proponents after she filed a lawsuit challenging the judge’s actions as a First Amendment violation. A federal appeals court dismissed the suit, but Bowen’s attorney plans to petition the U.S. Supreme Court.

Although he dismissed her suit, a federal judge said he doubted a jury would be swayed by a woman using the word “rape” instead of some “tortured equivalent.”

“For the life of me, I do not understand why a judge would tell an alleged rape victim that she cannot say she was raped when she testifies in a trial about rape,” wrote U.S. District Judge Richard G. Kopf.

Wendy J. Murphy, an adjunct professor at the New England School of Law in Boston, is representing Bowen. She said the practice is “absolutely” unconstitutional.

“There’s no law anywhere that allows courts to issue these kinds of orders against private citizens,” Murphy said. “That doesn’t mean judges aren’t doing it.”

Prosecutors may object, but rarely do they have the time and resources to stop a trial midstream to appeal, she said.

But in cases where the defendant’s version of events is pitted against that of the alleged victim, “words are really important,” Marquis said.

“To force a victim to say, ‘when the defendant and I had sexual intercourse’ is just absurd,” he said.

Jackson County Prosecutor Jim Kanatzar said juries are smart enough to understand that in the adversarial system of justice, the state is going to take one position and the defense is going to take another.

“These are common terms that are used both in and outside the courtroom,” he said. “If someone says something that one side feels is prejudicial, it can be addressed in cross-examination.”

The issue is a discretionary call with judges, said Jackson County Circuit Judge Brian C. Wimes, who did not preside over Slaughter’s trial. Wimes said he typically would not grant a pretrial order limiting certain words, but he would verbally tell the attorneys to avoid using words in a prejudicial or inflammatory way.

“You don’t want to create an unfair environment,” he said.

Those who defend the accused say the determination of whether what happened was rape or consensual sex is up to juries, not witnesses.

“They shouldn’t be able to use the word ‘rape’ as if it is a fact that has been established,” said Jack King, director of public affairs and communications for the National Association of Criminal Defense Lawyers. “These are loaded words.”

But Bowen says there is nothing fair about allowing the defense to describe what happened as sex and forcing the victim to describe it in the same words, especially when jurors are not told that an order limiting speech is in place.

Bowen was a 21-year-old Nebraska college student in 2004 when, she said, someone incapacitated her with a rape drug. When she awoke, she was being raped, she said.

Though The Star typically does not name rape victims, Bowen agreed to have her name and photo used.

She said it’s hard enough to get up in front of 12 strangers and talk about what happened without having to worry about being found in contempt of court for saying the wrong thing.

“I think it’s unfortunate that I have to turn into a human thesaurus on the stand,” Bowen testified in a pretrial hearing.

Murphy said it’s disturbing that such “censorship orders” are entered almost exclusively in cases involving rape or sexual assault.

“If it’s about defendants’ rights, then why aren’t they used in other cases?” she asked.

Alison Jones-Lockwood with the Metropolitan Organization to Counter Sexual Assault said that there is a historical trend of doubting the word of a woman who says she was raped or questioning how she might have done something to put herself at risk.

She attributes that attitude in part to how the crime affects people’s sense of personal safety.

“If it happened to her, it could happen to me,” Jones-Lockwood said.

The jury in Bowen’s case deadlocked after one trial in 2006. The judge declared a mistrial because of pretrial publicity before a second trial in 2007.

Prosecutors dismissed the case before a third trial because of the judge’s orders on what words could be used and limits on evidence, including prior rape allegations against the defendant.

It would have come down to his word against hers, and as Bowen said, “The judge took my words away from me.”

“How can the jury make an educated decision?” she asked.

What's next?

Witness - "Then he took out a gun and shot the guy"

Judge - "Sir, you can't say that - it might prejudice the jury"

 

[Mike_Yates]

Did the defendant have an ACLU lawyer?

 

[Raidho]

That's insane. It's not the act that's on trial, it's the person.

I wonder if "while he held me down and fucked me while I screamed 'No' " would have been in contempt as well.

 

[Karen Kraft]

http://www.kansascity.com/105/v-print/story/654147.html



What's next?

Witness - "Then he took out a gun and shot the guy"

Judge - "Sir, you can't say that - it might prejudice the jury"

What a fucking outrage !!!!

I sure hope Kansas City's judges are elected and not appointed!

As all y'all know, I'm very respectful of the judiciary and law-and-order rules, ordinances, statutes, and laws. But this really is pure horseshit.

Now, if the accused was charged with money-laundering and some woman wanted to go in and say that the defendant raped her, okay. Character assassination isn't nice -- even in court. But this was a RAPE trial, right?

If the accused is charged with rape or sexual assault, he has the right to confront his accuser in open court and hear him/her/it state the true elements of the acts which gave rise to the criminal charge. Similarly, the accuser has the right to tell the jury her complete and unedited version of what happened. If the charge is rape and she says that they had sexual intercourse, the dude walks, since the State has been unable to show, by the accuser's testimony, that it has met its burden of showing, beyond a reasonable doubt, that a crime has taken place.

Reflecting on this, I suspect [read: I sure hope] there's more to this story than first meets the eye!

Added:
I also notice that we've come full circle from the days when the girl/woman's name was kept out of the press. Now it's the accused's name that is kept out of the press. Great! Next, they will allow the defense attorney to ask if she is married or not. If she says she is not married and never has been married, then the attorney will ask if she is a virgin: if not, she's a slut who wanted to fuck anyone who came along.

 

[Karen Kraft]

Not a bad idea though, come to think of it.

Next time I get a parking ticket due to my not getting back to the meter to feed more money into it, I'm going to ask the judge to disallow the words, "meter," "expired," and "time," from the meter maid's testimony.

 

[great lover]

Not a bad idea though, come to think of it.

Next time I get a parking ticket due to my not getting back to the meter to feed more money into it, I'm going to ask the judge to disallow the words, "meter," "expired," and "time," from the meter maid's testimony.

That might take some convincing. However, now you have a precedent.

 

[Karen Kraft]

Ah! It's about Political Correctness!

If the accused was a rich Ivy League student, the judge's orders would be completely different.

It's a familiar story. Boy meets girl in a bar. Boy and girl drink alcohol. Boy and girl retreat to a more secluded place, maybe his apartment. The next morning, there are differing interpretations of what happened next.
In the Nebraska case of Tory Bowen and Pamir Safi, there was a police report, followed by charges of rape and a trial. Make that two trials. The first resulted in a hung jury. The second ended in July when the judge declared a mistrial, arguing that pre-trial publicity rallied by the accuser had botched the jury selection. Another trial may be in the works, but arriving at the "truth" - or at least the resolution of a conviction or acquittal - is proving much more difficult than it should be.

But notice these important facts:
Bowen's version is that she awoke in the morning, naked, with Safi on top of her, having sex. She told him to stop. He did. Because her clothes from the night before were caked with vomit, he also gave her something to wear. And he gave her a lift home.

Is this rape? Oh wait, we're not allowed to use that term. See, in the first trial the judge, answering a motion made by the defense, forbade Bowen to use words in court such as "rape," "sexual assault" and "sexual assault kit" (used at the hospital to collect evidence) - even though Safi was charged with rape. She also couldn't refer to herself as a "victim" or the accused as an "assailant."

Bowen was basically left to describe sex, an act to which she says she did not consent. Which, by the legal standard used in many states, is where sex switches to rape.

You have to wonder, would the judge have gone to such extremes to control the language jurors would hear had the circumstances been closer to the more common perceptions of rape? What if there was parking lot surveillance tape of Safi dragging Bowen to a waiting car? Or if she had been slashed with a knife as she fought him off? What if there were police photos of her wrists bruised, the skin torn by ropes used to restrain her during an attack? Would these things have made the judge more willing to let Bowen use the words she saw fit to describe events?

The jury would still have to do its job - weigh evidence against the presumption of innocence, and then decide. Other information was allowed. Two women testified that Safi, now 33, had sexually assaulted them, but neither incident resulted in a conviction.

Seems to me it is the judge, not Bowen, who is out of order. In declaring a mistrial, the judge argued that Bowen had made a public issue of the language ban - which brought protesters outside the courthouse - which he interpreted as an attempt to "intimidate" the court and "interfere" with the selection of a fair and impartial jury.

No, she just wanted her say. And the judge went too far in taking that right away from her. The judge's actions are important because this case illustrates an all too familiar pattern - especially on college campuses - when the sexes meet, drink and get frisky, with accusations to follow. Bowen was a college senior that night in 2004, out celebrating Halloween with her sorority sisters. Nobody should have to give up the right to charge, or deny, rape later just because they were exercising poor judgment in the events that led up to an alleged assault. And we should not presume that when there is no strong-arm violence, there is no rape.

Not that long ago - less than two decades - some states retained laws that said a husband could never be charged with raping his wife. As if once a woman agreed to have sex with a man, and even married him, he got free reign over her sexually, for life. Those laws may have changed, but the mindset remains: Once you leave the bar with him, you are saying "yes."

Almost two-thirds of rapes are committed by people known to the victim. The term "date rape" has become part of the vernacular, but the law has been slow to grasp the problem.

Unless this case is retried, justice will have been derailed by a judge's quibbles over language. In which case Bowen could fairly complain she has been legally assaulted.

There may or may not have been a rape in this case. Nobody here knows all of the facts, and the accused is entitled to a presumption of innocence unless and until the State can show, beyond a reasonable doubt, that a crime was actually committed. Nevertheless, the accuser is entitled to tell her story they way she wishes. The end.

http://llnw.image.cbslocal.com/0/2007/07/16/320x240/images_sizedimage_197022802.jpg
Tory Bowen
http://journalstar.com/content/articles/2007/06/08/news/local/doc4669b5d595acd641705859.jpg
Pamir Safi

 

[JustSkye]

we're not allowed to call it that here in this state (ND), either. When someone is charged, it's called 'sexual misconduct'.

Nice, huh?

 

[Karen Kraft]

we're not allowed to call it that here in this state (ND), either. When someone is charged, it's called 'sexual misconduct'.

Nice, huh?

... and is "murder" called retroactive abortion?

 

[Raidho]

we're not allowed to call it that here in this state (ND), either. When someone is charged, it's called 'sexual misconduct'.

Nice, huh?

This angers me.

Sexual misconduct is cheating on your wife or husband. Or copping a feel in public.

Rape isn't misconduct. It's violence.

 

[Killswitch]

What do they call Murder.

Robbery.

Shoplifing.

Domestic abuse.

Speeding?

 

[Karen Kraft]

This angers me.

Sexual misconduct is cheating on your wife or husband. Or copping a feel in public.

Rape isn't misconduct. It's violence.

Here, here!

 

[JustSkye]

This angers me.

Sexual misconduct is cheating on your wife or husband. Or copping a feel in public.

Rape isn't misconduct. It's violence.

and people wonder why rape victims, male or female, don't like coming forth to report them...

 

[satindesire]

Rape isn't about sex, it's about power.

These bastards need chemical castration, the lot of them.

 

[Raidho]

and people wonder why rape victims, male or female, don't like coming forth to report them...

Rape: The gift that keeps on giving.

There is humiliation in the act, humiliation in the telling. Humiliation in begging someone to believe you.

Having to stand before people and talk about someone's "sexual misconduct" is another way to minimize the effects and is a slap in the face to the victim. Having to tell people what happened is bad enough. Being forced to think about it and talk about it in PC terms is almost as criminal as the act itself.

What's next, "inadvertent phallus reception" ?

 

[Killswitch]

Rape isn't about sex, it's about power.

You keep believing that.

It's not true most of the time.

 

[Raidho]

You keep believing that.

It's not true most of the time.

How many victims do you have under your belt to make this assessment?

 

[JustSkye]

Rape: The gift that keeps on giving.

There is humiliation in the act, humiliation in the telling. Humiliation in begging someone to believe you.

Having to stand before people and talk about someone's "sexual misconduct" is another way to minimize the effects and is a slap in the face to the victim. Having to tell people what happened is bad enough. Being forced to think about it and talk about it in PC terms is almost as criminal as the act itself.

What's next, "inadvertent phallus reception" ?

That judge should be slapped with a lawsuit, and she should have told her story regardless. I would have gotten myself thrown in jail for telling the judge that I'd be telling my story as I saw fit, as it happened to me, with the words I choose to describe it, and using Freedom of Speech and if he didn't like it he could cite contempt of court. Then, I'd bring in the media, lawyers willing to fight 'til the cows come home, and see how well he likes telling people who have been assaulted or otherwise what rights they have in telling those who were deemed through the system to listen to it.

 

[JustSkye]

You keep believing that.

It's not true most of the time.

You have data to back that up, or are you just going to post your bullshit stating most of it's made up and they deserve it crap?

 

[Raidho]

That judge should be slapped with a lawsuit, and she should have told her story regardless. I would have gotten myself thrown in jail for telling the judge that I'd be telling my story as I saw fit, as it happened to me, with the words I choose to describe it, and using Freedom of Speech and if he didn't like it he could cite contempt of court. Then, I'd bring in the media, lawyers willing to fight 'til the cows come home, and see how well he likes telling people who have been assaulted or otherwise what rights they have in telling those who were deemed through the system to listen to it.

I would have been passive aggressive as all fuck, and said everything but the word rape. I'd have brought a thesaurus and the most pornographic descriptions I could think of.

Sexual misconduct my ass.

 

[JustSkye]

I would have been passive aggressive as all fuck, and said everything but the word rape. I'd have brought a thesaurus and the most pornographic descriptions I could think of.

Sexual misconduct my ass.

that's a good way, too!

I do love when you get feisty

 

[Lost Cause]

The crime of rape (or "first-degree sexual assault" in some states) generally refers to non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress. A lack of consent can include the victim's inability to say "no" to intercourse, due to the effects of drugs or alcohol. Rape can occur when the offender and victim have a pre-existing relationship (sometimes called "date rape"), or even when the offender is the victim's spouse.

The judge is-

Lancaster County District Judge Jeffre Cheuvront
http://www.supremecourt.ne.gov/district-court/dist-judges-addr.shtml

http://www.journalstar.com/content/articles/2008/04/08/news/local/doc47fab778eb015973950881.jpg

http://www.journalstar.com/articles/2008/04/08/news/local/doc47fab778eb015973950881.txt

 

[satindesire]

The crime of rape (or "first-degree sexual assault" in some states) generally refers to non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress. A lack of consent can include the victim's inability to say "no" to intercourse, due to the effects of drugs or alcohol. Rape can occur when the offender and victim have a pre-existing relationship (sometimes called "date rape"), or even when the offender is the victim's spouse.

The judge is-

Lancaster County District Judge Jeffre Cheuvront
http://www.supremecourt.ne.gov/district-court/dist-judges-addr.shtml

http://www.journalstar.com/content/articles/2008/04/08/news/local/doc47fab778eb015973950881.jpg

http://www.journalstar.com/articles/2008/04/08/news/local/doc47fab778eb015973950881.txt

He looks like a rapist. Grrr.

 

[renard_ruse]

A lack of consent can include the victim's inability to say "no" to intercourse, due to the effects of drugs or alcohol. Rape can occur when the offender and victim have a pre-existing relationship (sometimes called "date rape"), or even when the offender is the victim's spouse.

I have long found the possibility of the following to be very disturbing. Say you are in a long term sexual relationship maybe even married. You start playing with your partners sex organs while she is still asleep. Then you slip a finger or two inside. She awakes and for whatever reason decides she is going to call the police and accuse you of "rape." The law gives no consideration to the fact that you're in a pre-existing sexual relationship or married? Yes, people will say that this is not a realistic scenario, but it IS the current law. I think this is something that should be looked at because its scary as hell to think this could happen and you could end up in prison for 20 years.

As for this current case above, I think you need to be in the courtroom as the judge is and looking at the totality of the situation during the trial before you can make a determination if the witness is using language that unfairly prejudices the trial. In our system, the defendant is innocent until proven guilty and that can only be proven with a fair trial. I highly doubt the judge is favoring the defendant rather than trying to ensure a fair trial. That is his / her job.

 

[Raidho]

I have long found the possibility of the following to be very disturbing. Say you are in a long term sexual relationship maybe even married. You start playing with your partners sex organs while she is still asleep. Then you slip a finger or two inside. She awakes and for whatever reason decides she is going to call the police and accuse you of "rape." The law gives no consideration to the fact that you're in a pre-existing sexual relationship or married? Yes, people will say that this is not a realistic scenario, but it IS the current law. I think this is something that should be looked at because its scary as hell to think this could happen and you could end up in prison for 20 years.

As for this current case above, I think you need to be in the courtroom as the judge is and looking at the totality of the situation during the trial before you can make a determination if the witness is using language that unfairly prejudices the trial. In our system, the defendant is innocent until proven guilty and that can only be proven with a fair trial. I highly doubt the judge is favoring the defendant rather than trying to ensure a fair trial. That is his / her job.

First of all, if someone you're in a long term relationship with accuses you of rape for any reason, either a) she's horribly fucked up or b) you deserve it.

Right. Making words illegal, or at least include the possibility of jail time with their utterance, is ensuring a fair trial. Bullshit.