Can’t say “rape” in a rape trial

June 12, 2008
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Correct me if I’m wrong, but if you are involved in a trial dealing with an alleged rape, then the word “rape” should come up in order to describe the purported crime. But one judge in Kansas has made headlines because he doesn’t want the word “rape” or any kind of synonym for the term to be uttered in his courtroom during a rape trial because that would be unfair to the defendant. What about the alleged victim? Placing restrictions on her testimony to not include the words “rape,” “sexual assault,” or “assailant” hinders her ability to accurately describe what happened to her.





 This country prides itself on the First Amendment protection of free speech, but the Kansas judge decided the defendant’s right to a fair trial was more important, believing that allowing the victim to say the defendant “raped” her might interfere with the presumption of innocence by the jury. But could placing restrictions on the alleged victim’s testimony and the use of the word “rape” during trial affect her rights as a victim?



  This case is just begging to be looked at by the United States Supreme Court. The victim, Tory Bowen, filed a lawsuit claiming the judge’s actions violated her First Amendment rights. A federal appeals court dismissed her suit, but her attorney plans to petition the nation’s highest court to take a look.  Apparently, this isn’t an isolated case – it’s a growing trend in sexual assault cases. When is a judge is overstepping his or her boundaries in restricting the use of the word “rape” in a rape trial? It’s not a “forced sexual intercourse” trial or a “disagreement about consent” trial, but a rape trial.
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  • Okay--that is just ridiculous. When the charge against the defendant _itself_ contains a word, how is the jury hearing the word in the courtroom any more damning than the simple fact that the defendant is on trial? Last time I checked, evidence is supposed to be weighed as to whether it is more prejudicial than probative, not whether it is prejudicial at ALL.

    Of COURSE the words are prejudicial--this isn\'t embezzlement or securities fraud, for heaven\'s sake. The negative connotations associated with the words rape and sexual assault are there because those crimes are, by their nature, PERSONALLY violative. Taking away the prosecution\'s right to use those words dehumanizes the victim all over again, in either of two ways: either the severity of the crime or the extent of the damage it inflicted will be minimized; or the victim will be forced to relive the incident even more than is necessary because the prosecution will need even greater graphic detail to get the message across to the jury. Yet another burden on prosecutors who already walk a tightrope in trying to get inflict any additional pain.
  • No, it makes sense. Its not a rape until the jury or judge convicts. To allow a witness to say He raped her is a legal conclusion that a witness may not make under the IRE. The same can be said for calling someone a victim...judges may properly admonish all lawyers to watch their, and their witnesses, language use during the trial. A mistrial is not warranted upon a violation of the admonishment. All such admionishments do not apply in final argument, of course.

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  1. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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