Judge Forbids Use of the Word "Rape" in a Rape Trial; UPDATE

Bumped because there's not much else going on and this has been niggling at the back of my grey matter all day.

This story is raising eyebrows on the right and the left side of the blogosphere. A Nebraska district court judge prohibited the victim from describing what happened to her as rape, saying that it would be too prejudicial to the defendant. Also prohibited: "sexual assault", calling herself "a victim," or calling the defendant "the assailant."

Bowen’s case gained national notoriety and drew the attention of free-speech proponents after she filed a lawsuit challenging the judge’s actions as a First Amendment violation. A federal appeals court dismissed the suit, but Bowen’s attorney plans to petition the U.S. Supreme Court.

Although he dismissed her suit, a federal judge said he doubted a jury would be swayed by a woman using the word “rape” instead of some “tortured equivalent.”

“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,” wrote U.S. District Judge Richard G. Kopf.

I haven't read the district court case, but I expect that it was dismissed because issues of undue prejudice are committed to the trial judge's discretion. Which means that if you get some judge who thinks that the presumption of innocence--a standard of proof--supersedes the adversarial system, you'll be stuck describing your rape as "when the defendant had sexual intercourse with me."

Judges matter.

UPDATE: A commenter, Centerfire, over at Hot Air explained why he thinks both the trial judge and the federal district judge got this wrong:

It’s a Rule 403-alike problem that the Nebraska judge got comically wrong.

Otherwise-relevant evidence can be excluded if its probative value is substantially outweighed by the risk of unfair prejudice to a party. That determination is ordinarily committed to the discretion of trial judges, but that discretion isn’t unlimited or unreviewable. The rule favors admission of evidence: the issue isn’t prejudice (since every piece of evidence is by its nature prejudicial) but rather unfair prejudice, and whether the risk of such substantially outweighs the extent to which the evidence sheds light on a factual matter. In a criminal context, defendants can’t hide behind Rule 403 to prevent admission of evidence of the outrageousness of their conduct; the rule only serves to exclude lurid, unnecessary, waving-the-bloody-shirt displays by a prosecutor.

The problem is appellate courts that uncritically pass on this crap rather than making heads roll at the trial court level. This is classic, classic abuse of discretion by the trial judge, and the appellate court had an absolute obligation to slap him down.

I agree and would emphasize the difference between the victim of a crime and an expert testifying in the case. When the victim is testifying, there's little chance that the jury will confuse her use of the term "rape" or "victim" or "assailant" to mean that the ultimate question in the case has already been determined. They know that their purpose is to decide that very question. More than that, the defense is free to cross-examine the victim and make that point.

On the other hand, when an expert witness is testifying, it's much more likely that the jury would be confused and the defendant unduly prejudiced if the expert were allowed to express with certainty his conclusion as to the ultimate legal resolution of the case.

posted by Gabriel Malor at 05:39 PM

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