Can’t say “rape” in a rape trial

June 12, 2008
Back to TopCommentsE-mailPrintBookmark and Share

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.
ADVERTISEMENT
  • 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.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
  1. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

  2. Both sites mentioned in the article appear to be nonfunctional to date (March 28, 2017). http://indianalegalanswers.org/ returns a message stating the "server is taking too long to respond" and http://www.abafreelegalasnswers.org/ "can't find the server". Although this does not surprise me, it is disheartening to know that access to the judicial branch of government remains out of reach for too many citizens (for procedural rather than meritorious reasons) of Indiana. Any updates regarding this story?

  3. We have a direct genuine provider for BG/SBLC specifically for lease, at leasing price of 4+2 of face value, Issuance by HSBC London/Hong Kong or any other AA rated Bank in Europe, Middle East or USA. Contact : Mr. Johnson Hatton Email:johnsonhatton@gmail.com Skype ID: johnson.hatton007 Intermediaries/Consultants/Brokers are welcome to bring their clients and are 100% protected. In complete confidence, we will work together for the benefits of all parties involved. All inquires to Mr. Johnson Hatton should include the following minimum information so I can quickly address your needs: Complete contact information: What exactly do you need? How long do you need it for? Are you a principal borrower or a broker? Contact me for more details. Johnson Hatton

  4. I've been denied I appeal court date took a year my court date was Nov 9,2016 and have not received a answer yet

  5. Warsaw indiana dcs lying on our case. We already proved that in our first and most recent court appearance i need people to contact me who have evidence of dcs malpractice please email or facebook nathaniel hollett thank you

ADVERTISEMENT