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.