What’s in a name?

A judge in Nebraska has banned the prosecution from using the words “rape”, “sexual assault”, “victim” and “assailant” in a rape and sexual assault trial. Or should it be a [BLANK] and [BLANK BLANK] trial? The [BLANK] (otherwise known as the victim) is also not allowed to use these words when giving evidence. Apparently Nebraskan law gives judges a broad discretion to ban language that leads to “unfair prejudice, confusion of the issues or misleading the jury.”

This is the second trial of the matter. In November 2006, the jury in the first trial failed to come to a verdict, deadlocked 7 – 5. Similar orders were made in that trial.

The defendant’s attorney claimed that, “[Trials] should not turn on politicized hyperbole. They should turn on the facts. …Using words like “rape” creates unfair prejudices for defendants and invades the [duties] of the jury.”

By contrast, the victim said, “[The jurors will] think I’m choosing to use the word ‘sex’. I had to pause [at the first trial] and think, re-navigate… Jurors won’t find me credible because I’m pausing to find the words.”

Of course, prior to the the second trial, the prosecution naturally applied to have the words “sex” and “intercourse” barred from the courtroom as well, on the basis that these words inferred that the sex was consensual. The judge denied that motion. Presumably he did so on the basis that there would be no words left to describe what happened.

I was trying to write up this story using words other than “rape” and “sexual offence”. It’s very difficult, if not impossible. The synonyms of “rape” have connotations of crime, or are so archaic (eg “deflower”) that a jury might not understand the meaning. To say, “I woke up and the man sitting in the box over there was despoiling me,” sounds silly.

How far do you take it? Do you ban the use of all adjectives in the court? In fact, even the sight of an accused sitting there between two prison guards and wearing orange overalls carries an implication that he has been accused of a crime, and might possibly be guilty.

It’s all part of a broader tendency in the criminal law. Why is there a double standard with respect to rape versus other crimes? Let’s say I’m walking down the street with a handbag loosely over my shoulder. A thief snatches it. It’s true that I could have held onto the bag more tightly, or wound the strap around my upper arm to secure it to my body or been more observant, but I just wasn’t expecting it to be snatched. A defence barrister is hardly likely to say that I’m “asking for it” to be stolen. Even if I pass out on the street drunkenly so that I’m unable to stop someone from snatching my bag, I’m still not regarded as “asking for it”. But if I’m walking down the street in a shoestring strap top and skirt, and I’m sexually assaulted, how come a defence barrister will say I’m “asking for it”?

As the Slate article which was the source for this post points out, defence barristers are not arguing that murder or theft be described by other names. It’s only in rape trials. Just another example of the double standard.

It’s political correctness gone crazy.  To me, the solution is that the judge should allow the prosecution to say “rape” and the defence to say “sex” or “consensual sex”. Then the jury can make up its own mind. Legal argument invariably involves colouring the language which you use. Just a fact of life. But both sides should be able to colour their language equally. And if they go over the top, the judge can warn them to tone it down and explain to the jury that they should not infer anything from those words.

(Via Slate)



Filed under courts, feminism, judges, juries, law, sexual offences, USA

15 responses to “What’s in a name?

  1. So, if apparently Nebraskan law gives judges a broad discretion to ban language that leads to “unfair prejudice, confusion of the issues or misleading the jury” I guess prosecutors won’t be using the word “terrorist”, but have to use the US equivalent of “person who contravenes Section 100.1 of the criminal code”.

    I wonder what the judge would do if non-consensual sodomy of a male was involved?

    I wonder if things are getting better in “defloration” cases in Finland now that a majority of the cabinet ministers are female? If not, what would it take to sort this out?

  2. fairlane

    You have to be kidding me? I can’t believe what I just read. What the is wrong with people? Have they lost their minds?

    There must be some stupid mother in Nebraska!

  3. Dave Bath, I think it would be totally different if the victim were male but the facts were otherwise the same. There would be none of this rubbish.

    I’m all for fair procedure in criminal trials, but really…! Some of this stuff which defence barristers come up with is just plain sexist.

    Fairlane, yup, I couldn’t believe it either. Apparently it’s an increasing tendency in rape trials in the US… Madness.

  4. rg

    what i find most concerning about this is there seems to be a complete disregard for the thought processes of a jury – a group of people one would assume have differing (if only slightly) views, opinions and intellegence levels.

    i’m have no legal training, but i would consider the role of a jury relatively simple in that it determines guilt, compliance or whatever based on facts presented by both sides, and somewhere in the middle is a judge clarifying what is or isn’t permissible. i find it outrageous that such a level of contempt for lay people fulfilling their civic duty is entertained, let alone legislated. how stupid are the general public thought to be that they can’t be trusted to give the appropriete weight and meaning to common words they hear or use frequently?

    a rose by any other name and all that – if ‘sex’ isn’t sex, just what is it? moreover, if you can’t say ‘sex’ or ‘intercourse’ or ‘rape’ in the courtroom, just what are these people actually charged with? does the omission of words and manipulation of language extend to that as well? surely if someone has been charged with and is being tried for committing rape or sexual assault the actual omission of those words when discussing the act with a jury is the misleading part.


  5. Slate (thanks for the link) is more damning about the different treatment of different crimes:

    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?

    And it’s not just Cheuvront, it’s more widespread. Again from Slate:

    Words like victim have been increasingly kept out of trials, since they tend to imply that a crime was committed.

  6. marcellous

    I’m not sure if I entirely agree with you, LE.

    If you have your handbag stolen, you probably shouldn’t be allowed to say that in as many words in evidence, because that imports a legal characterisation into your evidence. You should say that it was taken from you, that you did not say or do anything to the person who took it to give your permission for them to take it, and if the ownership of the handbag is in issue, then you should also give evidence of the observed events which underly your claim to be the owner.

    Similarly, if there is a case about a contract, people can’t just say that they had a contract to a certain effect or that they agreed something; they have to say what was said or done. This is difficult for people to do, but I don’t think it is an instance in ths case of a special legal discrimination against women.

  7. Marcellous, how do you get around the problem that by describing the event as “sex”, it sounds like the victim consented?

    I guess the witness has to be careful with her words – saying that she did not choose to be in that situation, making it clear that it was non-consensual from her point of view.

    Perhaps it’s true that if I was giving evidence in a theft case, I’d have to say, “I was walking down the street, someone who looked like the accused grabbed my bag and I did not consent to that taking.” Still, I don’t think that defence counsel would make the same kind of fuss in a theft case about use of the word “victim”, for example.

    But can the prosecution not even explain, “The complainant will alleged that she was raped?” Do they have to say instead that, “The complainant will allege that she had non-consensual sexual intercourse?”

    I just think that there are times when you have to just say it how it is. It’s this kind of thing which leads to victims of rape and sexual assault not wanting to go through criminal trials. Perhaps we’ll just have to agree to disagree on this one! 😉

  8. fairlane

    It’s idiotic. What’s next? “Miss Jones can you point out the gentleman who did something?”

    “It was that man right over there. Mr. What’s His Name. He did something.”

    “You pointed to the defendant Mr. So and So? Thank you Miss Jones. Ladies and gentlemen of the jury our eyewitness has clearly identified Mr. Such and Such as a man who did something. And I can assure it was probably pretty nasty or we wouldn’t be here now would we?”

  9. marcellous

    We are all working off newspaper reports here, so there is a limit to what any of us can say about what went on.
    It isn’t clear to me (to respond to Fairlane’s comment) that the lawyers were prevented from using words which expressed a legal conclusion in their addresses. And it is certainly not a question of replacing “rape” in the testimony with a euphemistic “something,” but rather a question of confining evidence as far as possible to an utterly literal account. To me that seems very like saying it how it is.
    I do notice, though, that the jury in this case was split substantially on gender lines. Like the High Court decision in Louth v Diprose, I suspect we are dealing with an area where gender plays a role in the formation of an opinion.

  10. As an aside, I hate that case Louth v Diprose. A guy was labouring under a special disadvantage when he transferred title to a woman even though he was a solicitor? I would have had less problems if the High Court had found the transaction was substantively unconscionable according to its terms instead of finding “special disadvantage” because he happened to be infatuated with the woman.

  11. marcellous

    I knew you would hate it!

  12. Am I that transparent? ;-P

    Yeah, I know I am…

  13. pete m

    Her evidence:

    “I was asleep in my bedroom. I was woken by feeling pressure around my throat and the sound of my clothes being torn. There was no light on. I am single. I went to sleep alone and did not expect anyone that night for a visit. A heavy breathing male person then said words “Don’t make a sound. I have a knife.” I did not recognise the voice as being of anyone I know. I couldn’t see a knife but could feel pressure on my neck from a cold object.

    I was then subjected to sexual intercourse. (obviously here she elaborates). I did not consent. I did not resist as I continued to feel the presence of what I felt was a knife. I was terrified.”

    Now – where has she needed to say “I was raped”?

    I agree at first blush this seemed strange, but a complaintant doesn’t need to say “I was raped”. In fact, I think it is stronger in her testimony if s/he tells us the facts leading to the only conclusion, being rape.

  14. GavinM

    This is just lunacy, but sadly it is a sign of how the criminal “justice” system seems to have deteriorated to the point where the rights of the criminal are far more emphasised than those of the victim, I can only hope it remains as one of those things on the “Only in America” list…

    If the defendant is found guilty, does he have a record that states that he raped someone or does it merely say that he had sex with someone..?

  15. Pingback: Club Troppo » Missing Link - 27 June 2007

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