Monday, July 16, 2007

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.


Scarred said...

Thought I'd come on over to your blog and check it out. BTW, I LOVE it. Should have come here a long time ago, I'm impressed!

Scarred said...

"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."

I realize I'm going to sound as paranoid as any conspiracy theorist, but so be it. What do you think are the odds that this is the beginning of a quietly orchestrated right-wing campaign to hamstring and sabotage sexual assault prosecutions in America?

I'll give you a for-instance. I have no idea what Nifong was thinking when he went after the three Duke lacrosse players; everything I've heard seems to point that he shouldn't have prosecuted with a ten-foot pole. THEN comes the DeAnza Horror, something that the prosecutor SHOULD HAVE gone after with everything they had--if not for rape, AT LEAST for any other charges that could have possibly flown (i.e., maybe something creative such as criminal negligence of a vulnerable adult), etc. But the DeAnza prosecutor just rolled over and played dead. Rumor has it that the Duke spectacle scared them off...

So just what the hell is going on, Roy? I'm beginning to think that this can't POSSIBLY be my imagination, but I would hate to think that even a rightwinger would want to leave his or her daughter open to being raped. Any ideas?

Roy said...

Well, you might be a conspiracy theorist... but the thing about the paranoid is that sometimes people really are out to get them.

I don't know, but you raise some interesting points, and even if it's not an intentional, orchestrated effort on the part of some group, the effect is the same. Certainly, the methods of fighting that kind of sexism is going to be different, but... hrm...

I'll say this: Regarding "I would hate to think that even a rightwinger would want to leave his daughter open to being raped." I think that's true, they don't. But, I think there's a substantial class issue at play, there. I'm hardly the first person to suggest this, but there are two sets of laws in this country- those for the rich, and those for everyone else. The movers and shakers don't want their daughters to get raped, but, then, they recognize that they've got the sort of money that buys justice. It's the same way that they don't want their sons to die in a war, but they'll still push for one. They know or think that if push comes to shove, they've got the influence and financial backing to see that things work out their way.

Maybe we're both paranoid?

Scarred said...

What the hell...

There's an old CIA maxim:

"A paranoid is someone with all the facts."


Here's to paranoia!

And yes, you're right...I DEFINITELY think there's class issues at work here too. The rich don't want their daughters raped OR their sons to be prosecuted...

Autumn Harvest said...

No one wants their daughter to be raped. However, many conservatives truly can't imagine their daughter (or wife, or sister) being raped, because their daughter is a "good girl." They think that "moral" behavior is protection against rape, or at least decreases the chances of getting raped by 99%. I've talked with conservatives who would strongly deny that they were blaming the victim, or acting as apologists for rapists, but who seemed to think that wearing a long skirt, and only dating upstanding Christian men, meant you couldn't be raped.

Roy said...

Absolutely autumn harvest. Good girls don't get raped, and when they do, they're the rare, rare exception to the norm.

I think it goes even further than that, though. That "not to me or mine" mentality seems tied into money and race, as well. It's the attitude that "good girls" don't get raped, and "nice boys" aren't rapists. Rapists are poor, or non-white, or live in the shitty part of town. They certainly aren't from my family.

That's why, I think, there's this sense of embarassment when a woman from a family like that is raped- there's a sense of "what will other people think?" They might deny that they're blaming the victim, but... well... actions certainly speak louder than words, sometimes.