The idea is that it’s prejudicial to let a witness, who’s testifying to questions of fact, assert that the defendant is guilty of the charge. In other words, it’s okay if she gets on the stand and says, yes, they had intercourse, and no, she did not consent, but if she puts two and two together and says, “he raped me,” she’s stepped on the jury’s turf by drawing a legal conclusion. Sounds like a minor inconvenience, except that (a) it may deter victims spooked by the oddness of the rule from testifying, which is bad news in a system where only 13% of reported rapes end in conviction, (b) it may cause victims who do to testify to be overly self-conscious and cautious about their choice of words, which will affect their demeanor and maybe make them look suspect to the jury (the victim in this case has already said as much), and (c) the real target of rules like this are expert witnesses like law professors or possibly cops, whose pontificating on the stand about whether the defendant’s guilty might influence the jury’s deliberations. To apply it to the victim herself, who’s obviously sufficiently convinced that she was raped to show up and testify regardless of the words she’s choosing, is silliness.
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.”…
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.
If you don’t understand why the federal judge dismissed her suit, Gabriel Malor’s got the likely explanation. Exit question: 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”?
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