A Nebraska judge bans the word rape from his courtroom
By Dahlia Lithwick
Posted Wednesday, June 20, 2007, at 7:27 PM ET
[Redacted for boringness]
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.
Full Article from Slate.
When I first read this headline, I got angry at the idea of another backwards southern state trying to turn back the clock on women's rights, or as I like to call it the "Shush up honey, and get me another mint julep" style of jurisprudence. But as it turns out, this is actually a rape case and now I'm a little torn on the issue myself.
Rape, as it is being used here in the court room, is a criminal offense that only legally exists when all of the elements of the crime are met. So anytime someone uses it, it is a legal conclusion. It would be the same as allowing the prosecution or a witness to refer to a person accused of embezzling as an "embezzler who was embezzling." You can testify that he had forcible intercourse or that he used violence or anything to describe the situation, you just can't say what it is up to the jury to decide. Whether it was "rape." If everyone is allowed to describe the conduct as "rape" during the trial then it would make sense that the jury would agree.
But to exclude the word at all (as I imagine this was a motion in limine, at the beginning of trial) seems excessive. I'm sure that the victim of a mugging would testify that he was "mugged" or that he was "robbed," even though the latter would qualify as a legal conclusions as well. Of course the victim thinks a crime was committed. I think an instruction or admonishion to the jury before hand would have been sufficient. Something to the effect of "any time someone uses the word rape, you should disregard the use of the word as evidence that the crime was actually committed."
I wonder how this works most of the time. This is too heavy for a friday.