Gag Order
A Nebraska judge bans the word rape from his courtroom.
By Dahlia Lithwick
Posted Wednesday, June 20, 2007, at 7:27 PM ET
Usually we leave it up to the linguists and philosophers to muse on the
crazy relationship between words and their meanings. In the law,
words-the important ones, at least-are defined narrowly, and judges,
lawyers, and jurors are trusted to understand their meanings. It's
precisely because language is so powerful in a courtroom that we treat
it so reverently.
Yet a Nebraska district judge, Jeffre Cheuvront, suddenly finds himself
in a war of words with attorneys on both sides of a sexual assault
trial. More worrisome, he appears to be at war with language itself, and
his paradoxical answer is to ban it: Last fall, Cheuvront granted a
motion by defense attorneys barring the use of the words rape, sexual
assault, victim, assailant, and sexual assault kit from the trial of
Pamir Safi-accused of raping Tory Bowen in October 2004.
Safi's first trial resulted in a hung jury last November when jurors
deadlocked 7-5. Responding to Cheuvront's initial language ban-which
will be in force again when Safi is retried in July-prosecutors upped
the ante last month by seeking to have words like sex and intercourse
barred from the courtroom as well. The judge denied that motion,
evidently on the theory that there would be no words left to describe
the sex act at all. The result is that the defense and the prosecution
are both left to use the same word-sex-to describe either forcible
sexual assault, or benign consensual intercourse. As for the jurors,
they'll just have to read the witnesses' eyebrows to sort out the
difference.
Bowen met Safi at a Lincoln bar on Oct. 30, 2004. It is undisputed that
they shared some drinks, and witnesses saw them leaving together. Bowen
claims not to have left willingly and has no memory of the rest of that
night. She claims to have woken up naked the next morning with Safi atop
her, "having sexual intercourse with her." When she asked him to stop,
he did.
Bowen testified for 13 hours at Safi's first trial last October, all
without using the words rape or sexual assault. She claims, not
unreasonably, that describing what happened to her as sex is almost an
assault in itself. "This makes women sick, especially the women who have
gone through this," Bowen told the Omaha World-Herald. "They know the
difference between sex and rape."
Nebraska law offers judges broad discretion to ban evidence or language
that present the danger of "unfair prejudice, confusion of the issues or
misleading the jury." And it's not unheard-of for judges to keep certain
words out of a courtroom. Words like victim have been increasingly kept
out of trials, since they tend to imply that a crime was committed. And
as Safi's lawyer, Clarence Mock, explains, the word rape is just as
loaded. "It's a legal conclusion for a witness to say, 'I was raped' or
'sexually assaulted.' ... That's for a jury to decide." His concern is
that the word rape so inflames jurors that they decide a case
emotionally and not rationally.
The real question for Judge Cheuvront, then, is whether embedded in the
word sex is another "legal conclusion"-that the intercourse was
consensual. And it's hard to conclude otherwise. Go ahead, use the word
sex in a sentence. Asking a complaining witness to scrub the word rape
or assault from her testimony is one thing. Asking that she imply that
she agreed to what her alleged assailant was doing to her is something
else entirely. To put it another way: If the complaining witness in a
rape trial has to describe herself as having had "intercourse" with the
defendant, should the complaining witness in a mugging be forced to
testify that he was merely giving his attacker a loan?
The fact that judges are not rushing to ban similarly conclusory legal
language from trial testimony-presumably one can still say murder or
embezzlement on the stand-reflects not just the fraught nature of
language but also the fraught nature of rape prosecutions. We as a
society still somehow think rape is different-either because we assume
the victims are especially fragile or because we assume they are
particularly deceitful. Is the word rape truly more inflammatory to a
jury than the word robbery? Yes, the question of the victim's consent
surely makes a rape trial more complicated than some other kinds of
criminal trials. But the fact that the evidence may be more equivocal
hardly makes the underlying word more likely to incite blind juror
outrage.
Wendy Murphy teaches at the New England School of Law and has spent
years studying the relationship between language and the courts. She
describes Judge Cheuvront's order as part of a growing trend on the part
of the defense bar to scrub the language of trial courts, one that has
"really blossomed after the Kobe Bryant trial." The big shifts she's
noticing: Whereas defense attorneys once made motions to limit the use
of the word victim in trials, there is an uptick in efforts to get rid
of the word rape. Moreover, she points out, these strategies used to be
directed toward prosecutors, but they are now being directed toward
witnesses as well.
Do a Lexis search on the influence of inflammatory language on juror
perceptions. Try to find some social science data on the effect of
loaded courtroom words on conviction rates. Not much out there, notes
Murphy. That's one of the things that makes the Nebraska case so
maddening. If judges are going to take it upon themselves to issue
blanket orders that would have witnesses testifying that black is white,
one might hope that they are trying to remedy some well-documented
evidentiary problem.
You needn't be a radical legal feminist to cringe at the idea of judges
ordering rape complainants to obliterate from their testimony any
language that signifies an assault. At worst, that judge is ordering her
to lie. At best, he is asking her to play at being a human thesaurus:
thinking up coded ways to describe to the jury what she believes to have
happened. If Mock, Safi's attorney, is correct in stating that "trials
are competing narratives of what happened," why should one side have a
lock on the narrative language used? Can it really be that the cure for
the problem of ambiguous courtroom language is to permit less of it?
And there's another problem underlying Cheuvront's order: Jurors will
not be told of it. Not only is the "dangerous" language to be hidden
from them, but the fact that it's been hidden will be concealed from
them as well. They are not merely too emotional to hear the phrase rape
kit. They are also evidently too emotional to know it's been hidden from
them in the first place.
Professor Robert Weisberg teaches criminal law at Stanford Law School,
and he acknowledges that judges in rape trials face a particularly
complicated challenge when it comes to keeping prejudicial or conclusory
language from a jury. He has no problem, for instance, with the fact
that courts have gradually jettisoned the word victim for the less
loaded complainant. The former proves too much. But he cautions that
there is no value-neutral word for unwanted sex and that the word
intercourse "understates what happens in a rape case." He warns that a
blanket ban on the word rape may in fact be the worst solution. A jury
instruction from the judge or gentle admonitions that witnesses watch
their language throughout the trial is the better, more transparent fix.
"That," says Weisberg, "is what judges get paid for."
If we've learned anything from the dreary wars over politically correct
language in America, it's that purging ugly words from the lexicon
hardly makes the ugly ideas they represent go away. Trials exist to
ferret out facts, and papering over those ugly facts with pretty-or even
"neutral"-words doesn't just do violence to abstractions like language
and meaning. When it's done in a courtroom, the real victim-if I may
still use that word-may well be the truth.
Dahlia Lithwick is a Slate senior editor.
Article URL: http://www.slate.com/id
----
Oh the law. This is a little insane. I can't even wrap a coherent rant about this right now.
No comments:
Post a Comment