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July 16, 2007

Judge: Rape Victim Cannot Use Word "Rape" In Own Testimony; Must Use Word "Sex"

And she couldn't use the word "victim," either. Or the term "sexual assault kit."

What? Of course it's not true that "no women ever lie about rape," and of course the defendant in a rape case is entitled to the protection of the law the same as any other accused.

But the complaining victim (allegedly) is now not allowed to describe the crime in words of her own choosing? She has to call what she asserts was a nonconsensual rape as merely "sex"?

Last week in Lincoln, Neb., Tory Bowen was ordered by a judge to sign a written order that would compel her not to use the word rape at the retrial of the man accused of having intercourse with her when she was intoxicated.

She refused, and told the judge following the order would force her to commit perjury about the alleged rape. A Boston attorney filed an appeal on her behalf, but late last week the Nebraska Supreme Court refused to hear any appeal.

The gag order from the county judge last week has outraged victims rights attorney nationwide, and gathered attention from cable news and talk radio outlets.

Bowen, a native of the San Fernando Valley and local high school graduate, was a 21-year-old student at the University of Nebraska in 2004 when she alleged that Pamir Safi raped her when she was too drunk to either fend him off or consent to sex.

Safi, who was 33 when the incident occurred, says the sex was consensual. But he has been charged with "sexual assault" under a Nebraska law that does not use the word rape.

Safi says Bowen was too drunk to remember her consent. The prosecutor in Lincoln says Bowen's drunken state that night meant Safi should have known that she could not possibly consent to sex.

A jury at his first trial could not return a verdict, and at a pretrial hearing for the retrial, Lancaster County District Court Judge Jeffre Cheuvront ordered all witnesses to avoid the words victim, assailant and rape, and to not use the terms sexual assault kit or sexual assault nurse, at the second trial.

Apparently this judge believes a complaining witness describing the crime in her own words is "prejudicial" and hence not permissible. The trouble with that logic is that the standard isn't whether or not testimony is prejudicial, it's whether it's unduly prejudicial. As a judge I once knew informed a lawyer pressing for exclusion on grounds of prejudice, "The question isn't whether it's prejudicial to your case, it's whether it's unduly prejudicial. Of course it's prejudicial to your case, otherwise it wouldn't even be relevant to the case at all."

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posted by Ace at 07:36 PM

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