Nebraska Judge: "We Wouldn't Want the Jury to Think You Were the Victim of a Crime, Or That You Were Accusing Someone of Rape, Would We?!"

I'm sure, by now, that most of us have heard about the case in Nebraska where a woman is being told that she can't use the word "rape" during the course of... well... a rape trial. Bowen claims that Safi raped her while she was too drunk to consent to anything. Safi's attourney requested that the judge prohibit the use of the words "rape" or "victim" during the trial, and the judge agreed. In other words, Bowen isn't allowed to say that she was raped. The defense is arguing that "rape" is a legal term, and that Bowen isn't in a position to be able to use that term. Which, quite frankly, is bullshit.

The argument here is simple: There's a constant battle between the rights of the accused and the rights of the accusor. Both parties have a right to see justice served. In the case of a trial, there's a balancing act, because the goal is to make sure that the jury is hearing the facts of the case and isn't being persuaded by irrelevent factors. Or so the story goes- given the blatant emotional pandering and the playing on prejudice that happens in trials, it can sometimes be difficult to see this. But. Whatever. In the end, there are many things that a lawyer simply isn't allowed to do, because allowing it would prejudice the jury against or for the accused. The lawyers often aren't allowed, for example, to refer to the accused as a murderer, during the murder trial. Allowing them to call the defendant a murderer prior to conviction can create the impression of guilt regardless fo the facts. I can understand that.

There is, however, a tremendous difference between saying that a lawyer isn't allowed to use legally defined words in other ways, and saying that the victim of a crime isn't allowed to use common words to describe it. The entire point of the trial is to find out whether a jury believes that Safi raped Bowen or not. Bowen has accused him of this, and she ought to be allowed to tell her story as she sees it, just as the victim of a mugging should be allowed to say that someone stole his wallet. Stealing is certainly a legally defined word, and the whole point of a mugging trial would be to determine the innocence or guilt of the accused, but it would be a gross miscarriage of justice to tell the victim- "well, you can't use words like 'stole' or 'mugged' or 'attacked' to describe the way you were beat up and had your wallet stolen."

This case has been getting a lot of publicity, and Bowen has made it clear that she has every intention of fighting for her ability to call a rape a rape. There has already been one trial that ended up in a hung jury, where Bowen was under the language ban, and this latest trial ended up in mistrial. The Nebraska Supreme Court refused to hear her complaints, and her lawyers are talking about taking this to the federal level. I say, good for her.

Refusal to follow the judge's order can result in potential jail time or worse for Bowen, but I absolutely think that this is a case worth fighting. Artificially limiting the language available to the victim of a crime trying to describe the events to a jury doesn't- as the judge suggests- help keep them from being tainted. Instead, it creates the false impression that the crime wasn't as heinous as the victim might actually have found it. Particularly when, as in this case, the judge refuses to tell the jury that there's a language gag in effect. In other words, the jury would be hearing testimony that Safi and Bowen had intercourse or sex, but wouldn't have any notice as to why Bowen wasn't describing it as rape.

On Friday, the judge declared the mistrial because of the protests taking place, and Safi's lawyer, Mock, remarked that the actions of Bowen and her family were an "irresponsible and reprehensible public campaign" to improperly influence the jury selection. Says the lawyer who called for having "rape" stricken from Bowen's testimony. Of course, when the prosecution tried to have "sex" and "intercourse" stricken as well, given that they carry the implication of consent, the judge refused. Surprising? Hardly.

As others have noted, this stinks of silencing the victims of crimes. Rape trials are notoriously difficult for victims, and this is just one more step towards silencing their testimony. Words have power, and forcing the victim to use words that carry implications of consent only makes it harder for the victims of these sorts of crimes to express what happened.

And while it's true that we should have juries that are as impartial as possible, it's insulting to everyone involved to suggest that a jury can't hear the victim say "that man raped me" without their jumping to the conclusion that it must be true. The judge has a responsibility to say "You're here for the purpose of determining the guilt or innocence in this case. You'll hear testimony, weigh the facts, blah blah blah."

Ultimately, words have power and meaning, and when a judge takes it upon himself to try to create artificial limits on the words we use to describe things, it doesn't further justice, it pushes us further from justice. It silences the victims. It limits the effectiveness of the testimony jurors will hear. The victim is forced to use words that are just as loaded and carry just as many implications, only in the other direction, and it puts an unfair burden on the person who has already been victimized once to tread lightly because the judge assumes that the jury is composed of complete morons incapable of understanding the point of the trial.