There seems to be a lot of blogospheric confusion over this story from The Kansas City Star:
It’s the only way Tory Bowen knows to honestly describe what happened to her.
She was raped.
But a judge prohibited her from uttering the word “rape” in front of a jury. The term “sexual assault” also was taboo, and Bowen could not refer to herself as a victim or use the word “assailant” to describe the man who allegedly raped her.
The defendant’s presumption of innocence and right to a fair trial trumps Bowen’s right of free speech, said the Lincoln, Neb., judge who issued the order.
“It shouldn’t be up to a judge to tell me whether or not I was raped,” Bowen said. “I should be able to tell the jury in my own words what happened to me.”
Yes, you should be able to tell the jury what happened. But, you see, rape is a crime and if the judge was to permit you to get up on the stand, point at a guy sitting at the defense table and say “He raped me, ” you would be prejudicing the Defendant — again it’s that whole innocent until proven guilty thing that’s been part of Anglo-American jurisprudence for hundreds of years — and, you’d doing something that is solely the jury’s job; saying that a crime, in this case, rape, occurred.
Maybe it’s just the fact that I’m a lawyer that I understand this differently, and can deal with it in a non-emotional manner, but this isn’t a matter of free speech, it’s not political correctness run amok, and the judge wasn’t muzzling the complainant.
This was a case of a judge doing their job, and doing it right.
June 9th, 2008 at 5:45 pm
No, this was NOT a case of a judge doing anything right. The plaintiff has the right to give her testimony. Rape is simply a word meaning “any act of sexual intercourse that is forced upon a person.” Thus, if the plaintiff wishes to testify that such action occurred against her, she should use the word ‘rape.’
June 9th, 2008 at 5:47 pm
She has every right to give testimony, she just doesn’t have the right to accuse the Defendant of committing an act that constitutes a crime — that’s the jury’s job.
June 9th, 2008 at 5:49 pm
Clayton,
One more thing.
Rape has a dictionary definition and a legal definition.
In a court of law only the trier of fact, in this case the jury, is entitled to make the determination of whether the facts presented meet the legal definition of rape.
Permitting the accuser to say it was, in fact, rape when it very well might not have been under the law violates the Defendant’s right to a fair trial.
It’s that simple.
June 9th, 2008 at 7:27 pm
So, defendants should also not be able to say, “He robbed me.” Or, if mugged, “He assaulted me.” Robbery and assault are also acts that constitute crimes.
June 9th, 2008 at 7:27 pm
she has every right to accuse the defendant. The jury’s job is to determine if her accusation, and the evidence the prosecution brings in support of it, are sufficient to determine that the defendant is guilty of the crime of which he is accused. That is the entire purpose of a trial!
June 9th, 2008 at 9:55 pm
“She has every right to give testimony, she just doesn’t have the right to accuse the Defendant of committing an act that constitutes a crime — that’s the jury’s job.”
Are you kidding me? A plaintiff doesn’t have the right to accuse the defendant of a crime? Then what is the whole purpose of a trail? FYI it’s not the jury’s job to accuse the defendant of a crime - it’s the jury’s job to come to a consensus in determining if the plaintiff did in fact commit an alleged legal transgression.
June 10th, 2008 at 10:25 am
I guess I’m puzzled… how is one supposed to give testimony at all if one has no right “to accuse the Defendant of committing an act that constitutes a crime”? This means one must stop speaking just before mentioning something which the defendant did which might have been illegal. Which means, basically, one cannot say anything of significance.