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Monday, June 9, 2008

Judge’s ban on the use of the word ‘rape’ at trial reflects trend

422tory_bowen1_06082008_6r13dekd_em It’s the only way Tory Bowen knows to honestly describe what happened to her. She was raped.But a judge prohibited her from uttering the word “rape” in front of a jury. The term “sexual assault” also was taboo, and Bowen could not refer to herself as a victim or use the word “assailant” to describe the man who allegedly raped her.The defendant’s presumption of innocence and right to a fair trial trumps Bowen’s right of free speech, said the Lincoln, Neb., judge who issued the order.

Bowen’s case is part of what some prosecutors and victim advocates see as a national trend in sexual assault cases.

“It’s a topic that’s coming up more and more,” said Joshua Marquis, an Oregon prosecutor and a vice president of the National District Attorneys Association. “You’re moving away from what a criminal trial is really about.”

In Jackson County, Senior Judge Gene Martin recently issued a similar order for the trial of a Kansas City man charged with raping a teenager in 2000. Despite the semantic restrictions, the Jackson County jury last week found Ray Slaughter guilty of forcible rape and two counts of forcible sodomy.

Slaughter’s attorney, who requested the pretrial order, declined to comment because she is preparing a motion for new trial. The judge also declined to comment.

Bowen’s case gained national notoriety and drew the attention of free-speech proponents after she filed a lawsuit challenging the judge’s actions as a First Amendment violation. A federal appeals court dismissed the suit, but Bowen’s attorney plans to petition the U.S. Supreme Court.

Although he dismissed her suit, a federal judge said he doubted a jury would be swayed by a woman using the word “rape” instead of some “tortured equivalent.” [Mark Godsey]

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““It’s a topic that’s coming up more and more,” said Joshua Marquis, an Oregon prosecutor and a vice president of the National District Attorneys Association. “You’re moving away from what a criminal trial is really about.”“

That is profoundly silly. First of all, they don’t actually present any evidence of a “trend.” Marquis should know better than to make such assertions without providing at least some statistical data.

Seriously, how many rape trials are there in the country? In how many was a “victim” prevented from using the word “rape”? In how many was the prosecutor prevented from using that word in opening statements? How do these number differ with 10 years ago. If he can’t provide specifics, there is no evidence of a trend.

Second of all, a “criminal trial” isn’t about the victim telling us what legally cognizable wrong happened. If the state is put to its proof, it is about the credibility of the witnesses. Not their legal analysis. Sure, Marquis was talking to the press, but he could have been a lot more precise with his words.

Ms. Murphy, isn’t doing any better. No case has ever held that the First or Sixth Amendment prevents judges from excluding certain testimony. In fact, there is no First or Sixth Amendment right of a victim to testify at all. She didn’t bother to address these issues. Instead she says “There’s no law anywhere that allows courts to issue these kinds of orders against private citizens,” Murphy said. “That doesn’t mean judges aren’t doing it.” What? FRE 403 and its state-law equivalent are very clear that judges can exclude overly prejudicial material.

At least Mr. Kanatzar sees the issue for what it is: two different positions. And, although Kanatzar and I would probably disagree, we would probably both agree that the means by which both sides can advance their positions are limited by law.

Posted by: S.cotus | Jun 10, 2008 10:51:57 AM

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