James on June 10, 2008 at 12:54 PM

BTW, I pretty much agree with everything you stated in your post. I posted something almost identical at 5:39pm.

It’s quite a stretch to think that’s what the judge ruled against.

James on June 10, 2008 at 12:54 PM

I agree with you that it’s a stretch. I just thought you’d be happy to consider all possibilities here.

blink on June 10, 2008 at 11:55 AM

Yes, she should be compelled to tell the truth, the whole truth, and nothing but the truth in a quote. It’s quite a stretch to think that’s what the judge ruled against.

This is stupid. She can’t just say ‘rape’ because it’s not her job as the victim to decide that the actions of the defendent meet the legal definition of a rape…that’s the jury’s job. Her job as the victim is to describe in detail the physical actions of the defendent so that the jury can deliberate whether those actions met the legal definition.

James on June 10, 2008 at 7:47 AM

Shouldn’t she be allowed to describe her interaction with the defendant? What if that interaction included her accusing him of rape the next morning by actually using the word? Should she not be allowed to quote herself accurately?

In a rape case, the details are more repugnant than the term “rape.” There can be no objection to the prejudicial effect of the victim’s direct testimony regarding her detailed firsthand knowledge of the actions of the defendant. So why would a prosecutor ever need the victim to use the word “rape” to summarize those details.

Save it for closing argument.

“Ms. X, please tell the jury what happened that night.”

“He raped me.”

“But what did he do?”

“I just told you…he raped me.”

“Ms. X, that’s what we’re here to determine. Your testimony is supposed to convince the jury that a rape occurred. The jury has been instructed as to what meets the standard for rape…they know what you allege the defendent did or else we wouldn’t be here in the first place. What the jury doesn’t know is what actions the defendent actually took so they can apply that standard to those actions and make a legal determination whether it was rape or not.”

Prepare to appeal.

Is she allowed to use the word “is”?

yubley on June 9, 2008 at 5:09 PM

Depends on what the meaning of the word “is” is.

Does this mean if the coroner takes the stand and the D.A. asks if the victim died from an accident or from murder, he can’t say “murder”?

Is it true that victims who are killed are prohibited from saying they’re dead?

The whole point of the trial is that a supposed victim has brought a charge. Regardless of what the charge is,, rape, assault, theft,, etc.,, the victim is coming to court to say, “I was raped! I was assaulted! I was a victim!”

No, the victim is the complaining witness. The state brings the charge. That’s why cases are titled The People of the State of X v. Defendant.

Judge to rape victim: You can’t use the word “rape” on the stand

She probably shouldn’t use the words, “Your Honor” either. Maybe instead of saying , “Your Honor” she could just mutter under her breath, “You a$$ hole.”

I don’t think that the 13% conviction rate is necessarily a bad thing. No, I’m not coming to the defense of rapists. However, I am coming to the defense of defendants who do not have enough evidence against them to convict them.

AbaddonsReign on June 9, 2008 at 5:12 PM

I agree completely. Considering the widespread prevalence and total lack of penalty for false rape accusations, it’s a good thing juries don’t just rubber-stamp the allegations.

Rape is horrible and rapists should be punished to the fullest extent of the law, but let’s not kid ourselves that every rape defendant is actually guilty.

What this judge has done is cause her to violate her oath to the court.

which is bad news in a system where only 13% of reported rapes end in conviction

I’m not sure why that is “bad news” and not simply a sign that a lot of rape cases go to trial with little or no evidence to back them up, resulting in a high failure rate. The evidence suggests that prosecutors are if anything too likely to press charges in a rape case.

It’s not as if testimony of the victim would transpire as follows;

Prosecutor: “What happened?”
Victim: “He raped me.”

I would think that the questions would be much more specific and clinical. For example,

Prosecutor: “Can you please describe your first memory on the morning of the 23rd?”
Victim: “My first memory is waking up with the defendant on top of me with his penis inside my vagina making aggressive pumping motions.
Prosecutor: “What did you do?”
Victim: “After a few moments I verbally protested to his actions and attempted to stop him.”
Prosecutor: “And what was his reaction to that?”
Victim: “He physically restrained me and continued his actions for more than several moments. He only stopped after my continued struggle.”
Prosecutor: “Were any words exchanged between you?”
Victim: “Absolutely, I screamed at him and accused him of drugging me and taking advantage of my lack of conscienceness. He made a small attempt to protest my accusation, but seemed to focus on leaving quickly.”

Therefore, I think the restriction on the victim is actually a restriction on the prosecutor from asking open ended questions which requires prejudicial statements from the victim.

The only problem I see is if the victim actually used the word rape in her accusation the next morning. Such an exchange and the defendant’s reaction to such accusation might be relevant for a jury. If this is the case, then the judge would be forcing her to perjure herself by misquoting her own words. However, I’m sure this could have been worked out.

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……