"Rape" Banned in Court
The word "rape" "victim" and "sexual assault" were banned by Judge Jeffre Cheuvront in a sexual assault case between Pamir Safi and Tory Bowen. Tory Bowen believes that Pamir Safi raped her after she went to his house after drinking at a Lincoln, Nebraska bar. The defendant's attorneys argue that words like "rape" and "victim" have such harsh connotations connected to them that it would unfair and defamatory for Safi to have these words used against him. However while "rape" "victim" and "sexual assault" are banned to witnesses and prosecutors the defense may use "sex" and "intercourse" to describe what happened. Words should not be banned in a trial when it is not known if the words are defamation or libel as words and expression are protected under the first amendment.
One of the most interesting things about this argument is that words that have been banned only affect one side of the case. ABC News reports that an attorney from the same office as the prosecutors said, "Judges often prohibit attorneys from using words like 'defendant' or 'victim' in the courtroom. But he said he could not recall a bar on the word 'rape,'" This statement shows that there is no precedent for the word "rape" to be banned. The defendant's attorneys believe that the words "rape" "victim" and "sexual assault" are unnecessary and not applicable to the case. However if Tory Bowen cannot use "rape" and "sexual assault" to describe what happened then she is not expressing herself in a way that she finds truthful. She cannot properly interpret her side of the story to the jury. Although rape has not been proven in this case, if Bowen feels that she was raped then she should be allowed to say so. In this trial she will not be allowed to, but will be restricted to words such as "intercourse" and "sex." If rape has negative connotations that will be detrimental to one side, then it can be argued that "intercourse" and "sex" can have detrimental effects to other side for their more neutral connotations.
Besides this being a violation against the First Amendment the prosecutors don't believe the ban is necessary. Rape has been used in many other cases all across the nation, some people have been convicted and others have not. Using the word "rape" in court has never been a problem before so it shouldn't be censored in this trial either.
Jurors know that when they walk into a court room one side is trying to convince them that the defendant committed a crime and the defendant is proving that they did not. They realize that the point of the trial is to find out if something really did happen beyond a reasonable doubt. ABC News reports that one of Safi's attorneys stated "Trials are competing narratives of what happened," If this is true then why should one of the narratives be censored. Safi's attorney continued saying, "They the jurors should not turn on politicized hyperbole. They should turn to facts," If this attorney sees that rape as a hyperbole for sexual assault then one can say that sex is an understatement for sexual assault. If using the word "rape" is not a fact then so is using the word "sex" in this trial. Shouldn't sex be banned from the court as well and have everyone restricted to saying "sexual assault" or "alleged sexual assault?" If the defense believes that "rape" can swing the jurors one way or another then "sex" can to.
The ban on words can have horrible repercussions for many of the people involved with this trial. Bowen has to tread carefully about what she says so that the case will not be declared a mistrial with the utterance of "rape" or "victim." Under oath she has to express what happened to her without using the words that she believes best represents her side of the narrative. Witnesses are also prohibited on their speech, according to USA Today, "Judge Jeffre Cheuvront has ordered witnesses to sign papers that say they won't use certain words and phrases as they testify. Among the words: 'victim,' 'sexual assault,' 'assailant' and 'rape,'" This could force these witnesses to commit perjury. If they feel that rape best describes what happened they must be allowed to state that. In defense of this ABCNews reports on what Clarence Mock one of Safi's attorneys said, "The question of whether Safi sexually assaulted Bowen is one for the jury to answer based on evidence both sides present, Mock said, adding that witness shouldn't make legal conclusions," However if we use Mock's logic then a witness saying that Bowen and Safi had sex makes the legal conclusion that Safi and Bowen had consensual sex. The ban of words in this case can skew the testimony of a witness and also the trial.
One of the biggest defenses for the ban of "rape" is that it is making the trial fairer and will not defame the character of Pamir Safi. However if Safi is innocent until proven guilty how will the use of rape in the trial defame his character, he is already charged with sexual assault. If the ban of "rape" is to protect Pamir Safi's rights, then the rights of Bowen cannot be compromised either.
This ban is bias and unconstitutional. If the lawyers are worried about the word "rape" destroying their defense then they must not have a very good case. Same as if the prosecution relied on the word "rape" for a conviction. The prosecutors have said that they believe the ban is unnecessary and that they can work around it, this should show that they will not use the word "rape" to convict a man. The ban of the word "rape" in this case is setting a horrible precedent for the future. Although it may not make much of a difference in this case, it is unfair to restrict the first amendment rights of a person in court if their speech is not libel or defamation.
"Court asked to review judge's 'rape' ban." USA Today 14 Oct. 2007 'Rape' Banned in Court." ABC News 14 Oct. 2007 http://abcnews.