Rape Survivor Forbidden To Say She Was Raped

She was also forbidden to say she was sexually assaulted, and she was not allowed to refer to herself as the victim, or to the defendant as the assailant. A judge banned the use of all these terms at the Kansas City trial of the man charged with raping Tory Bowen:

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.

This is not the first or the only instance in which a judge has issued such orders in a rape trial:

Bowen’s case is part of what some prosecutors and victim advocates see as a national trend in sexual assault cases.

“It’s a topic that’s coming up more and more,” said Joshua Marquis, an Oregon prosecutor and a vice president of the National District Attorneys Association. “You’re moving away from what a criminal trial is really about.”

In Jackson County, Senior Judge Gene Martin recently issued a similar order for the trial of a Kansas City man charged with raping a teenager in 2000. Despite the semantic restrictions, the Jackson County jury last week found Ray Slaughter guilty of forcible rape and two counts of forcible sodomy.

Slaughter’s attorney, who requested the pretrial order, declined to comment because she is preparing a motion for new trial. The judge also declined to comment.

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.

Wendy J. Murphy, an adjunct professor at the New England School of Law in Boston, is representing Bowen. She said the practice is “absolutely” unconstitutional.

“There’s no law anywhere that allows courts to issue these kinds of orders against private citizens,” Murphy said. “That doesn’t mean judges aren’t doing it.”

So what language is Bowen permitted to use to accurately describe what happened to her? She is supposed to say she and the defendant “had sexual intercourse.” Which, as dnA at Too Sense points out, is “prejudicial in favor of the defendant.”

… The defense should be able to use their own language and the prosecution should be able to use theirs. If the defense wants to call it “consensual,” let them, if the prosecution wants to call it a rape they should be able to.

Check out the anonymous (of course!) comment on the above post as well, if you want an example of the woman-hating mindset that’s motivating this trend.

John Aravosis, in an attempt to understand the judge’s thinking, suggests that sexual intercourse is to rape as a house fire is to arson. But a reader who also happens to be an attorney explains the flaw in this reasoning:

This is all about framing. “Rape” is not simply and only a sex act; it is violence perpetrated by means of physical acts of forced sex. By not calling it what it is — rape and/or sexual assault — CHANGES the very nature of the violence. Your arson analogy is simply inapt when discussing rape. Put another way, EVERY rape is an assault and battery, but not every assault and battery is a rape — a rape is a particularly heinous act of assault and battery. …

… What this judge is doing is pure horseshit absurdly disguised as being “even-handed.” The law has NEVER required that a jury put aside its common sense to carry out its duties; unfortunately, this judge wants the jury to look at an erect penis forced into an unwilling woman’s vagina and then not believe their own lying eyes. This is the kind of stupidity by the few that give all lawyers and our justice system such black eyes. …

In fairness, though, John also notes the judge’s inconsistent application of his own rule:

… the judge has no problem with the accused rapist claiming that the sex was consensual, so why require the woman to put a nicer spin on her side of the story? Shouldn’t the defendant and the victim each be permitted to tell their story unencumbered?

The term “sexual intercourse” implies consent, by definition. The word “intercourse” means “dealings or communications between individuals and groups.” Etymologically, the word means, literally, “running between.” “Inter” means “between”; “course” derives from the Latin “cursus,” which means “running.” Dictionary.com lists “trade, traffic, relations” as synonyms for intercourse. Intercourse requires the element of mutuality to be intercourse.

As Melissa McEwan aptly puts it:

Testifying to having “sexual intercourse,” when one has not given consent, is not accurate. Effectively, rape victims are being compelled to perjure themselves to protect their rapists.

And needless to say, there is no other crime in which the victim is compelled to protect the perpetrator.

2 Responses to “Rape Survivor Forbidden To Say She Was Raped”

  1. Eli says:

    So calling a crime by its actual legal name is prejudicial now? Fascinating.

    I can’t wait to see what this does to trials for murder, fraud, etc.

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