In her post entitled Don’t Call It Rape, Echidne of the Snakes discusses the case involving Tory Bowen, the alleged rape victim who was not allowed to use the word “rape” in her testimony. Echidne quotes from a recent article in the Kansas City Star:

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.

The comments posted by Echidne’s readers reflect the range of reactions in the feminist blogosphere to this case and other publicized rape trials. Legal professionals and those acquainted with the criminal justice system are not troubled by the language restrictions. Readers who do not have the knowledge of law and the rules of evidence are outraged that the alleged victim was virtually silenced and the charges against the alleged assailant were dropped. Echidne and her readers should be commended for discussing this emotional topic without the sorry spectacle of vitriol and name-calling, such as taunts of “rape apologist,” for any commenter who spoke in favor of the language restrictions.

In June 2007, Figleaf wrote an insightful post about this case, The No-Sex Class: Disquieting Conversations About Rape, citing the criticisms made by Dalia Lithwick of Slate and Amanda Marcotte of Pandagon. Since there have been so many developments since June, 2007, here is a summary for those unfamiliar with this case.

October 31, 2004
The date of the alleged rape of Tory Bowen by Pamir Safi. Safi and Bowen were strangers before meeting on the evening of October 30, 2004. Bowen claims that a date-rape drug was administered to her and she has no memory of what occurred that evening or during the night. When she woke up on the morning of October 31, she was naked, in a strange bed and Safi was on top of her, performing penis-vagina sex.

November 2006
The first trial began October 23, 2006 and ended November 6, 2006 with a deadlocked jury. Prior to the first trial, Judge Jeffre Cheuvront granted a defense motion to bar prosecutors from eliciting testimony or making arguments in front of jurors using words like “rape,” “sexual assault kit,” “victim” and “assailant.” Furthermore, the jury could not be told that these specific words were prohibited from the testimony.

At the trial Bowen testified for nearly 13 hours. She was quoted by the JournalStar.com: “They’ll (jurors) think I’m choosing to use the word, ‘sex,’” she said. “I had to pause (at the first trial) and think, re-navigate (how to say what happened). ... Jurors won’t find me credible because I’m pausing to find the words.”

July 12, 2007
Lancaster County District Judge Jeffre Cheuvront, in a ruling from the bench, declared a mistrial in the second trial of Pamir Safi, immediately prior to jury selection. His reason was that the extensive publicity that the case received made it impossible for the defendant to receive a fair trial.

September 2007
Tory Bowen filed a lawsuit in Lancaster County against Judge Cheuvront, claiming that Cheuvront’s banning of the words rape, sexual assault, victim, and assailant from the first trial in 2006 violated her right of due process and free speech. U.S. District Judge Richard G. Kopf dismissed Bowen’s lawsuit as frivolous and wrote that there was no evidence the trial judge acted in bad faith.However, in a footnote Kopf took issue with the wisdom of the state judge’s decision. “For the life of me, I do not understand why a judge would tell an alleged rape victim that she cannot say she was ‘raped’ when she testifies in a trial about rape,” he said.

January 2008
Prosecutors for the state of Nebraska dismissed the charges against Pamir Safi before a third trial due to the trial judge’s ban on language and limits on evidence, including prior rape allegations against the defendant.

April 2008
The 8th U.S. Circuit Court of Appeals upheld the decision by a U.S. District Judge Richard G. Kopf to dismiss the lawsuit filed by Tory Bowen against Judge Cheuvront for violation of her right to due process and free speech resulting from Cheuvront’s ban of rape and other related terms from Bowen’s testimony. The appellate court upheld the decision on procedural rather than substantive grounds, citing that since a summons was never served on Judge Cheuvront, the court had no jurisdiction. Since the criminal charges against Pamir Safi were dismissed in January 2008, the issues in the case were moot. Lawyer Wendy Murphy of Boston, who represents Bowen, stated that she plans to file a petition with the U.S. Supreme Court.

I presented the detailed chronology of this case for a specific reason. Unlike many bloggers who have written about rape trials which received national attention, I do not believe that the banning of words such “rape” or “victim” is proof, in and of itself, of the judicial system’s bias against women and/or rape victims. The limitation of language is intended to protect the defendant’s right to a fair trial. One of Echidne’s readers, Karen Marie, offered this lucid explanation.

I have been typing Massachusetts Superior Court trial transcripts for over 25 years and I can explain to you very simply why this apparent “outrage” is not really such an outrage.
“Victim” is a highly charged word, it presupposes, preassumes “victim” status. Refer yourself to the concept of presumption of innocence, which is the principle that a person can only be found guilty through credible evidence.
We are all aware of the many unfortunate people who are wrongly convicted of emotionally-charged crimes (or because they are from a currently unpopular ethnic/religious group).
It is important that the level of emotion be tamped down in legal proceedings so as not to unfairly prejudice the jury against the defendant.
Thus, in Massachusetts the term “the complaining witness” is used in place of “victim.”
“Rape” in a court is a legal term with specific essential elements which must be proved in order to find a defendant guilty. to allow a complaining witness to say “he raped me” jumps the intervening evidentiary requirements. what the complaining witness is asked to do is describe precisely what acts the defendant committed — i.e., “he stuck his penis in my vagina,” “he touched my breast,” etc.
To do otherwise, to allow the use of emotionally-charged language would harm us all. the law, rules of evidence and procedure are there to protect all of us, and especially important in highly emotional cases where the mere fact of being arrested and charged leads many to assume WITH NO EVIDENCE that they in fact committed the crime.
Just think how you would feel if you were charged with a crime and at your trial the prosecution were allowed to present its case through incitement of emotion to overcome jurors’ ability to evaluate the credibility of evidence in deciding whether you are guilty or not guilty.
ALL of the rules of law MUST apply to ALL defendants, regardless of whether there were seventeen eyewitnesses or none. Even if seventeen people SAW someone get raped by someone else, the same rules must apply and the state cannot be permitted to jump those intervening steps and produce evidence to prove “each and every essential element of the crime beyond a reasonable doubt.”
Even after over 25 years, those words still make me very proud to be a citizen of this country.

The title of this post, The Troubling Language of Rape, was the name of a conference held by the Judicial Language Project of the Center for Law and Social Responsibility at the New England School of Law. The Judicial Language Project, which was the subject of a post by Ann Bartow of Feminist Law Professors, aims to identify language in judicial opinions that implies that victims willingly participated in the violence or were responsible for the violence. For example, a defendant was convicted of ten criminal counts including sexual assault, rape and kidnapping. The appeal that was filed contained the words “engaging in vaginal intercourse” or “engaged in sexual activity.” The defendant was an adult male and the victim was his 8-year old granddaughter whom he sexually abused over a two year period.

According to the JLP analysis, the term “engaged” implies the child was participating and lessens the defendant’s responsibility for his coercion of the child. The language that the court should use is precise: “forced penetration of the child’s sexual organ.” And because it is precise, the language places sole responsibility for the act where it belongs: with the defendant.

Professor Elizabeth Wood wrote about the need for this precision of language in her post entitled, Why We Need More Explicit Sex Talk in Courtrooms. Her point is that, as uncomfortable as we may be with explicit descriptions of sexual acts, we cannot afford to be vague or use euphemisms in a court of law.

It is no wonder that the story of this case and Tory Bowen’s ordeal was picked up by so many feminist blogs. Since I have not read transcripts of the trial, I do not know whether Ms. Bowen was required to substitute vague terms such as “sexual intercourse” for “rape,” or if she could use precise language to describe the fact that she was unconscious when Safi penetrated her vagina with his penis. Both Tory Bowen and her attorney, Wendy Murphy, were listed as presenters in the agenda for the JLP conference and, I would be very interested in reading their presentations so as to understand what Ms. Bowen could and could not say in court. But until I do, I will withhold judgment and outrage. And I urge my fellow bloggers to do the same.