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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

ADVERTISEMENT