Judge bans the word “rape”

In the retrial of State v. Safi, the court has banned the use of the words “rape,” “sexual assault,” “victim,” “assailant,” and “sexual assault kit.” Nebraska’s first attempt to prosecute Pamir Safi ended in mistrial when the jurors deadlocked seven votes to five votes. The ban was in effect for the first trial, and the prosecutor must have thought it was effective because he tried unsuccessfully to get the court to ban the words “sex” and “intercourse” for the upcoming trial.

The blogosphere is boiling over with reasons why the court reached such a patently horrifying decision. The self-declared radical feminist, Twisty Faster, at I Blame the Patriarchy, blames, well the patriarchy. At Free Republic, however, contributors have identified the real culprit–liberal judges. Apparently liberal judges have even taken control of the courts in Lincoln, Nebraska. At the Democratic Underground, the natives are sure the judge is crazy, and the folks at the Neocon Command Center couldn’t agree more. Also in agreement, are the long-time friends, Feministing.com and the conservative blog, Constitutionally Right. The decision represents “What’s Wrong with the World” because it is clearly sexist, and RedGlitter couldn’t agree more that this is clearly a case of “PC Stupidity.” Finally, Bob Bankard concludes that Judge Jeffre Cheuvront is doing this because he is a “Frenchy.”

Dahlia Lithwick was trained to be a lawyer, but born to be a writer. (I think she is great–I try to read everything she posts on Slate.com, and I usually agree with her opinions.) She wrote an entertaining piece about the Safi trail that declared the judge was waging a war on words. In fact, Lithwick’s article was so popular that it was responsible for setting off the firestorm over the gag order, and most of the blog posts above quote her piece at length.

Two months ago, in an unrelated matter, Ms. Lithwick wrote about Alberto Gonzales’s Congressional testimony. Then, as now, she found herself in unusual agreement with some odd characters; her original Gonzales article agreed with “‘White House insiders’ and the National Review that Alberto Gonzales disgraced himself” while testifying in front of Congress. Since her politics lean to the left, Lithwick thought it was odd that she was agreeing with her ideological opposites, so she reevaluated the situation. Just as Lithwick reevaluated her position about Gonzales, we might want to look a little more closely when radical feminists and Neocons agree that this gag order is a bad idea. On other hand, maybe this is the work of a patriarchal, anti-Democratic, Neocon-hating, anti-feminist, anti-conservative, French, sexist, liberal judge trying to advance a politically correct war on words.

The words “victim” and “assailant” are prejudicial

Of the five banned words, it easiest to understand why the judge banned “victim” and “assailant.” Because it is disputed whether a crime occurred, words like “victim” and “assailant” are prejudicial, and it is probably a good idea to ban their use. The Connecticut Supreme Court, for example, held that it was reversible error when the district court used the term “victim” to describe the complainant in a rape case. In State v. Cortes, 851 A.2d 1230 (2004), the prosecutor, multiple witnesses, and even the judge called the complainant a victim “as many as eighty times.” The Court said that in cases where it is undisputed that a crime has been committed and “only the identity of the perpetrator is in dispute, a court’s use of the term ‘victim’ is not inappropriate.” When there is a dispute over whether there is a crime or a victim, then if the court uses the term it “might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant.” The Connecticut Supreme Court reversed the conviction because using the term “victim” violated the defendant’s due process rights and the defendant had not received a fair trial.

Federal Rule of Evidence 403 (FRE 403) is grounded in due process guarantees and bars evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” (Nebraska has a rule with the same language.) Just like it is prejudicial if the judge uses “victim” or “assailant,” it is prejudicial if witnesses use those terms in cases where the occurrence of a crime is in dispute.

Witness should give facts, not opinions

When it is disputed whether the sexual encounter was consensual or not, it is up to the jury to decide if a sexual assault occurred. Trials have witnesses so the jury can collect facts and determine if the facts support the legal conclusion that a sexual assault occurred. With few exceptions, lay witnesses should not testify to opinions–they should only testify to the facts. FRE 701 severely restricts lay witnesses from providing opinions because the jury should be “in possession of an accurate reproduction of the event.” Since lay witnesses are generally precluded from providing opinions, the lawyers will work hard to ask probing questions that present the facts to the jury.

Bowen, the complainant in this case, provided a great example why courts should generally not allow witnesses to give opinion testimony. Bowen said that the judge’s order is “making [her] commit perjury.” She has formed the legal opinion that her testimony was perjured. Obviously, her legal opinion is wrong. She did not commit perjury when she substituted words for the prohibited words. Lay witnesses should not testify that someone committed perjury–they can testify to the facts that may establish that someone lied or committed perjury, but they should not testify in the form of legal opinions.

Whether a “rape” or “sexual assault” occurred and whether there is a “victim” or an “assailant” are all in dispute, and using those terms would be testifying in the form of an opinion. Limiting the use of those terms in Safi’s trial seems appropriate.

The word “rape” is nearly useless to the factfinder

Rape is a more common word than “sexual assault,” “sexual assault kit,” “victim,” and “assailant”, and many commentators are especially upset with the judge for banning this word. Many people believe that the victim will not be able to tell her side of the story without using the word rape. In this case, Bowen even thinks that not being able to use the word rape is perjurous.

It is not true that it is more difficult to tell the facts to the jury without using the word rape. Read these two examples of real testimony from a different case (1997 WL 33616424, at *13):

Q. (By prosecutor) “And what did he do, if anything then.”
A. (Victim) “He raped me.”
* * *
Q. (Prosecutor) “Tell the jury what happened.”
A. “He raped me again and made me have oral sex with him.”

The word “rape” here provides almost no information to the jury. The only responsive part of the answer was “[he] made me have oral sex with him.” This actually tells the jury some facts about what happened. “He raped me” doesn’t tell the jury anything about what happened. It tells the jury what the victim’s opinion of the events are, but it doesn’t tell the jury any facts. Was there penetration? Did he threaten her? Did he hit her? Did he use a condom? Was there a weapon? Did he say anything? Did she say anything? Especially, what did she say or do that would signal her lack of consent? “He raped me” doesn’t even begin to answer these questions. The “probative value” of the word rape is almost non-existent. Prohibiting the word “rape” doesn’t make it harder to explain the facts because the word “rape” doesn’t provide any facts.

The English language has millions of words, and there are plenty of words to describe the facts of the case that are better than “rape.” The most basic definition of rape has two aspects, 1) sexual activity 2) against the victim’s will. To construct synonyms for rape, choose one word from the left side of the table and one word from the right side of the table:

This simple table produces 136 synonyms for “rape” that have not been banned in this case. Most of them provide more facts to the jury than the simple word “rape” and none of them are nearly as prejudicial.

“Sexual assault kit” is prejudicial and misleading

There are other terms that describe the contents of a “sexual assault kit” and using the term is prejudicial and might even mislead the jury. A sexual assault kit is a collection of materials used to gather evidence of a sexual assault. It includes swabs, a speculum, bags and cups for collecting body fluids and tissues, and often includes a camera for taking photographs.

Calling it a “sexual assault kit” in a jury trial is prejudicial because it implies that a sexual assault occurred. The kit is just a set of tools used to collect evidence, and there is no good reason to call it a sexual assault kit.

Furthermore, the “sexual assault kit” is potentially misleading because it might convey to the jury that the evidence or tests in the “kit” provide conclusive results. Some jurors might expect that a sexual assault kit is like a home ovulation test–you run the tests in the kit, and if the kit shows a smiley face then it was consensual sex, but if the kit displays an image of the electric chair then it was rape. There is nothing in a sexual assault kit that provides conclusive or magical answers about whether the sex was a sexual assault or not. The items in the kit merely collect evidence and there is no reason not to call the collected items “evidence.”

Conclusion

If banning these five words allowed rapists to routinely go free, then it would be a travesty. If banning these five words leads to fair criminal trails for defendants, however, then it is a good thing. None of the words provide any facts to the jury, and none of the words are indispensable parts of the prosecution’s case. All of the words are potentially prejudicial or confusing and it is within the court’s discretion to ban their use. I agree with the Connecticut Supreme Court that courts should not usually ban words, but that there are cases where they need to be excluded. State v. Safi seems like one of those cases to me.

My thanks to Professor Henry H. Perritt, Jr. for his help.

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