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Gag OrderA Nebraska judge bans the word rape from his courtroom.

By Dahlia Lithwick
Posted Wednesday, June 20, 2007, at 7:27 PM ET
Witness Stand. Click image to expand.

Usually we leave it up to the linguists and philosophers to muse on the crazy relationship between words and their meanings. In the law, words—the important ones, at least—are defined narrowly, and judges, lawyers, and jurors are trusted to understand their meanings. It's precisely because language is so powerful in a courtroom that we treat it so reverently.

Yet a Nebraska district judge, Jeffre Cheuvront, suddenly finds himself in a war of words with attorneys on both sides of a sexual assault trial. More worrisome, he appears to be at war with language itself, and his paradoxical answer is to ban it: 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.

Safi's first trial resulted in a hung jury last November when jurors deadlocked 7-5. Responding to Cheuvront's initial language ban—which will be in force again when Safi is retried in July—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.

Bowen 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.

Bowen testified for 13 hours at Safi's first trial last October, all without using the words rape or sexual assault. She claims, not unreasonably, that describing what happened to her as sex is almost an assault in itself. "This makes women sick, especially the women who have gone through this," Bowen told the Omaha World-Herald. "They know the difference between sex and rape."

Nebraska law offers judges broad discretion to ban evidence or language that present the danger of "unfair prejudice, confusion of the issues or misleading the jury." And it's not unheard-of for judges to keep certain words out of a courtroom. Words like victim have been increasingly kept out of trials, since they tend to imply that a crime was committed. And as Safi's lawyer, Clarence Mock, explains, the word rape is just as loaded. "It's a legal conclusion for a witness to say, 'I was raped' or 'sexually assaulted.' … That's for a jury to decide." His concern is that the word rape so inflames jurors that they decide a case emotionally and not rationally.

The real question for Judge Cheuvront, then, is whether embedded in the word sex is another "legal conclusion"—that the intercourse was consensual. And it's hard to conclude otherwise. Go ahead, use the word sex in a sentence. Asking a complaining witness to scrub the word rape or assault from her testimony is one thing. Asking that she imply that she agreed to what her alleged assailant was doing to her is something else entirely. To put it another way: If the complaining witness in a rape trial has to describe herself as having had "intercourse" with the defendant, should the complaining witness in a mugging be forced to testify that he was merely giving his attacker a loan?

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Dahlia Lithwick is a Slate senior editor.
Photograph of a witness stand by Spencer Weiner/AFP/Getty Images.
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Remarks from the Fray:

There is a strong pro-victim reason for a trial judge to err on the side of the defendant in close evidentiary rulings. Double jeopardy means that appeal is a one way street--prosecutors generally cannot appeal acquittals, but defendants can of course appeal convictions. That means that if the trial judge went the other way and denied the defense motion, there's some chance that this would be reversible error and that the victim would then potentially have to go through another trial. This is a nontrivial matter--as the complainant in the NE case herself illustrates.

In short, to the extent that a trial judge thinks that the exclusion of the word "rape," while inconvenient, is unlikely to have a significant impact on outcome, there is good trial management reason to come out the way he did. Victims will benefit from that.

--LuxLawyer

(To reply, click here.)

I guess I'm not totally sure why this is some huge problem. Can't the lady use the term "non-consensual sex"? Doesn't that in fact encompass exactly what she experienced? Is the word "rape", which the defense has banned as being too loaded, needed by the prosecution precisely because it is loaded? She had non-consensual sex, she wasn't beaten, bound, and brutalized - which is what the term "rape" conjures up in the mind of many. If her accusations are true, she still suffered a terrible crime, but why the need for vengeance by the prosecution?

--Eigenvector

(To reply, click here.)

Gee, this conversation brings me back to sitting in a police station after being raped repeatedly by a serial rapist. Or maybe I should say, "having frequent non-consensual sex with a seasoned practitioner of non-consensual sex. " Fascinatingly, this very subject emerged in the first police interview: I was trying (through a badly bruised throat, hours after escaping) to provide the details of the n-c-s. At one point, I said something like: "then he made me give him a blow job." The detective turned off the tape recorder. He told me that I couldn't use words like "blow job" because the defense attorney would use my language to make me look like a slut (presumably, a slut whose modus operandi for picking up men involves going to sleep in her own bed -- too sexy!). We then haggled a little over the term "suck it," which, as a direct quote (and also as I was an English Major with an affectation for precision in language), I felt should be included in the original. After all, wouldn't the n-c-s'ers own language make him look like a slut, too? The police felt that the mere act of accurately reporting the n-c-s'ers own words would reflect badly on me. So the tape recorder went back on, and I said something idiotic and grotesquely untrue, like: "then he asked me to perform fellatio on him." And then, for the first time, I felt dirty. Non-clean, as you would say.

--Tina Trent

(To reply, click here.)

As a society I feel we have more sympathy for murderers than rapists. Hell, Tony Soprano is a hero. And I don't think this is just limited to fiction. As sickened as we might be by someone who can be deemed a "murderer," we're often willing to hear him out on the circumstances of the situation. But call someone a rapist, and they don't stand a chance at being heard out. Maybe it's our own disgust of this word that causes us not to consider the variables: it's either rape or it's not rape. Once the word is said, so many of us turn away.

Whatever the reason, this man is on trial, and if his verdict could depend on the use of the word "rape," then I would say there's a problem with the evidence.

--Sbrak

(To reply, click here.)

I think it's important, though, to remember that rape is about lots more than sex -- it's about the victims loss of control... or, better said, it's about the rapist gaining power over the victim and taking control.

So, now we have rape victims at risk for or suffering from post-rape psychopathology entering a courtroom and being told you can't say that word here... adding to the initial insult, the victim no longer even has control over her[or his] own narrative...

--TonyAndragna

(To reply, click here.)

The jury is not an audience of fools; they know they are in court because someone is being accused of a crime. But withholding from them the name of the crime, without informing them why the words can't be used, cripples them from the outset. How can they do their duty without the truth, the whole truth, and nothing but the truth?

Not every true rape is as graphic as what happened to this victim. And not every victim is as articulate as she. I can see why some posters here feel the victim in the story is being victimized all over again in court, which is precisely why so many women never report rape, preferring to live in fear and shame where no one can see the suffering.

--Isonomist

(To reply, click here.)

(6/24)

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