Naming

A woman who says she was raped is not allowed to use the terms “rape,” “sexual assault,” “sexual assault kit,” “assailant,” or “victim” in her testimony at trial. Describing the incident as she experienced it is, apparently, prejudicial. Calling it “sex” or “intercourse,” though, isn’t. A law professor had an interesting take: “It’s like saying to a robbery victim, ‘You can’t say you were robbed, because that’s a legal judgement. You can only say you gave your stuff to the defendant,’” she said. “That’s absurd.”

There’s been a lot written about the power of naming and the right to identify your own experiences. There is a huge difference between “sex” and “rape.” Rape is indeed a legal term, but it’s also a colloquial one, and it does have a very different meaning than “sex” or “intercourse.” This woman is being legally compelled to use someone else’s words to describe her experience — words that she believes misrepresent what happened to her. She believes that calling it “sex” amounts to perjuring herself.

There must be rules about what kind of evidence and testimony is relevant and admissible in court. But this isn’t about an extraneous issue — this is about her accusing someone of rape, and her testimony as to what happened during the alleged rape. Using the term “rape” or “sexual assault” is a crucial element to her position; if it was sex as we generally understand it (i.e., consensual) then there was no rape and the whole case is moot. Taking away her right to name her experience undermines her entire case.

Dahlia Lithwick has an excellent analysis.

(Someone sent me this link but I cannot find the email. Thanks to whoever that was, and if you want to mention in the comments that you sent it, I’ll give you proper credit).


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33 comments for “Naming

  1. Betsy
    June 20, 2007 at 10:47 pm

    I have a question – as I read the Lithwick piece, I kept wondering – if the guy is found not guilty, is this something that the prosecution could appeal, or can they not do that? I know very little about criminal law.

  2. evil fizz
    June 20, 2007 at 10:50 pm

    Also, as Dahlia Lithwick points out the jury isn’t even going to be told about the ruling. If the jury assumes that the complaining witness is testifying and not calling it rape or sexual assault, then they’re going to have a very different understanding of what happened that if she identifies what happened to her in those terms. i.e., If she didn’t call it rape or assault, why should we?

    As an aside, I heart Dahlia Lithwick. She’s amazing.

  3. evil fizz
    June 20, 2007 at 10:52 pm

    if the guy is found not guilty, is this something that the prosecution could appeal, or can they not do that? I know very little about criminal law.

    No, they can’t appeal a criminal conviction. It would be possible for them to appeal the order barring the words rape, victim, etc., but not the conviction itself.

  4. Lee
    June 20, 2007 at 10:57 pm

    If I were this woman, I would be ridiculously graphic in my description of events. I don’t see how her using “rape” or “sexual assault” in her testimony affects the trial negatively; everyone in the jury knows what he’s on trial for. This woman is perfectly justified in saying she’s perjuring herself, as no one in their right mind would say she had sex with him. I’m all about a fair trial, but this is crazy.

  5. Nathan
    June 21, 2007 at 12:00 am

    What an idiotic decision. How is the jury supposed to evaluate her evidence if she can’t put it in her own words?

    I can see why the prosecutor shouldn’t use legal terms like rape aside from during submissions to the jury, but this decision just doesn’t make sense.

    The only justification I can think of is that when she says “he raped me” she is saying two things (1) that he had non-consensual sex with her, and (2) that he knew, or was reckless, that she did not consent (that’s the standard where I am at least, Nebraska may be different). Theoretically, she shouldn’t testify about his state of mind, because she doesn’t know it directly. It’s up to the jury to infer the accused’s state of mind from his actions, not witnesses. But realistically, I can’t imagine this confusing a jury for a second. Certainly not enough to justify preventing the complainant from testifying in her own words.

    (On another note, Lithwick writes: “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.” Well, okay, how about this:

    “She woke up naked the next morning with Safi atop her, having sex with her.”

    It might just be me, but this doesn’t sound consensual at all.)

  6. June 21, 2007 at 12:02 am

    The prosecution can’t appeal an acquittal, due to Constitutional protections against being tried twice for the same crime. The defense can appeal a conviction, if they can find grounds to appeal on. Most states have positively Baroque rules for appeal. In some, even exonerating evidence cannot be used to appeal for a new trial, since it wasn’t introduced in the original trial.

    It’s fucking insane, but this is supposed to be justice.

    I have no idea what to say about this judge barring the victim from using the word that describes what happened to her. Beyond appalling.

  7. June 21, 2007 at 12:23 am

    This is just absurd. I agree with Ms Bowen that she’s essentially being asked to perjure herself. The lawyers should be sensitive to the legal jargon and not overstep, but the court has no right to tell witnesses how to express themselves.

    The bit toward the end about them even barring the use of the word “defendant” in many cases is just icing on the cake. Isn’t that the technical, legal term for someone who is charged with a crime? How is the prejudicial?

    This judge could use an introductory linguistics course among many other things.

  8. Miller
    June 21, 2007 at 12:30 am

    I hate it when newspapers insist on framing rape as a sexual act (“sexual assault” or “sex crime”) rather than as a hate crime (w/ sexual overtones) or simply “rape.” The sexualization of rape allows bigots to shape our perception of this heinous violation of human rights as either rude, justified, or natural.

    This is the same tactic used to excuse the bigotry of misogyny as “sexual explicitness,” as if sexuality is a force immune to any hint of manipulation, let alone intolerance or hate.

  9. Miller
    June 21, 2007 at 12:33 am

    Question: why is rape the only crime in which the word “accuser” used, implying that the alleged victim is, basically, committing an act of aggression against the defendant?

  10. maatnofret
    June 21, 2007 at 12:34 am

    Here in MN, the statutes refer to rape and sexual assault as “criminal sexual misconduct.” It bothers me that our state uses such bureaucratic language to describe something so vile and violent.

  11. June 21, 2007 at 1:44 am

    …Miller, how is rape not inherently sexualized? You can argue that the sex isn’t the point, or the important part; you can argue that we talk about it the wrong way; but if it doesn’t involve…well, sex, it’s not rape, it’s just assault. Hitting someone isn’t rape. Nonconsensual sex acts are. You know? Also…since when is rape the only cirme in which the word “accuser” is used? I mean, there’s “plaintiff” in more formal settings, but you’re the “accuser” if you accuse someone of robbing you or beating you up or burgling your house, too.
    I agree that coverage tends to be too sympathetic to accused rapists, on the whole, but really? I’m not understanding you, here.

  12. Hawise
    June 21, 2007 at 7:28 am

    I can think of some phrases and words to replace the banned ones. I would definitely get contempt of court but I feel that the court has definitely earned some contempt on this one.

  13. Thomas
    June 21, 2007 at 7:33 am

    1) No appeal from an acquittal. The proper remedy is called a “writ of mandamus,” asking the appellate court to intervene even when there is no appeal right because the judge did something so crazy that it is simply outside the scope of his authority. It is rarely brought, rarely granted, and always taken as a grievous insult by the subject judge, no matter how much they say that they don’t take it personally.

    2) If I were the prosecutor, I would tell her to be more clinical, and spit the words out to make sure the jury knew that she was being required to describe it without using the word “rape”: “I woke up and he was on top of me, and he was penetrating my vagina with his penis. It hurt. I told him to stop.”

  14. Rhiannon
    June 21, 2007 at 9:03 am

    Can she use the term “Non-consensual Intercourse”?

  15. June 21, 2007 at 9:05 am

    If we weren’t such prudes, she could say “He fucked me without my consent” and it would have about the same impact as the banned word. I think Hawise beat me to the punch on this one.

  16. Kristen
    June 21, 2007 at 10:30 am

    There must be rules about what kind of evidence and testimony is relevant and admissible in court. But this isn’t about an extraneous issue — this is about her accusing someone of rape, and her testimony as to what happened during the alleged rape. Using the term “rape” or “sexual assault” is a crucial element to her position; if it was sex as we generally understand it (i.e., consensual) then there was no rape and the whole case is moot. Taking away her right to name her experience undermines her entire case.

    This is a pretty frequent occurrence in domestic violence cases (for restraining orders, not criminal convictions) where there is an allegation of rape. My solution when prepping the victims is to have them relate what happens in very small actions and technical terms. “He grabbed my left wrist…etc.” Of course testifying like that especially in front of the person who raped you is a horrific experience. From the look in their eyes I can see that some of my clients are almost reliving the experience and I wish I could protect them. Just one more reason why very few will actually testify about a rape if they can get the restraining order without it.

  17. June 21, 2007 at 11:20 am

    I don’t understand why they didn’t do an interlocutory appeal between the two trials to try and overrule this asinine order.

    But I think the prosecution could go far with the suggestions of Hawise, Thomas & Norbizness.

  18. Chesna
    June 21, 2007 at 11:29 am

    isn’t that why there is the term “allegedly”? the comparison to “giving your stuff” to a robber is absolutely true to what’s going on, and the jury is being misled as fuck. what are these bastards thinking?? remember that case where the woman didn’t act “traumatized enough” so the case was thrown out? I can see something like that being pinned on this victim because of this ruling.

  19. June 21, 2007 at 11:58 am

    In her place I’d be strongly tempted to say it anyway, and when called on it, explain that I am required/swore an oath to tell the truth, the whole truth, and nothing but the truth; which one does His Honor want?

  20. Laurie
    June 21, 2007 at 12:17 pm

    How is that restriction even legal? Seriously — not a lawyer here, didn’t study any of it in school. I just think that sounds seriously whacked…

  21. Kristen
    June 21, 2007 at 12:55 pm

    How is that restriction even legal? Seriously — not a lawyer here, didn’t study any of it in school. I just think that sounds seriously whacked…

    Yes, in general, the restriction is legal. Witness cannot testify as to a legal conclusion (unless they are called as expert legal witness – which is itself highly debated, since judges are supposed to be experts after all). Rape and sexual assault are often legal conclusions. However, in this particular case (I just pulled the Nebraska statute), the crime is sexual assault, not rape. There is no crime of rape under Nebraska law. Consequently, rape is not a legal conclusion (and neither is sexual assault kit for that matter), so she should be allowed to say rape.

    I suspect that this judge just got steam rolled by the defense…which is why we need smarter judges.

  22. June 21, 2007 at 1:31 pm

    Anyone who insists that the pendulum has swung too far in favor of women can get bent.

    Fucking hell.

  23. biwah
    June 21, 2007 at 3:01 pm

    Things would get very interesting if the woman defied the order and used the word rape in her testimony anyway. There would be a contempt finding, which could be appealed – or, if the jury convicts, the defendant will appeal, and there will be a de facto appellate ruling on the appropriateness of the trial judge’s ruling on these words.

    And it would get catapulted into the spotlight, which would be a good thing. She understandably may not be feeling like an activist in her current situation. However, it could be a shrewd strategic decision.

  24. Ann
    June 21, 2007 at 3:12 pm

    Infuriating.
    “Having sex with me” still sounds consensual, because of the “with.” There’s no “doing something TO me” aspect in that phrase. Which is why Thomas’s suggestion about “penetrating me” is a good one.

  25. mustelid
    June 21, 2007 at 4:03 pm

    Is there any way to charge the judge as an accessory after the fact? She could just do a clinical description, like Thomas mentioned, and then at the end say, “He raped me, and I don’t care if you don’t like the word.” Then, the jury gets to hear the judge rant about banning the word. l can’t believe the judge wasn’t instantly yanked from the bench and confined for a full mental health evaluation.

  26. ekf
    June 21, 2007 at 5:28 pm

    While I think this judge is a complete shitbag, I think this can be used as an opportunity for two things to happen. The first is that prosecutors should try to ban the word “sex” on the basis that it prejudicially infers consent where such consent is controverted. The second is that it opens the door for victims to help juries reach a better result. I say this because, in the mind of the jury, it is possible that the victim may be prejudiced by using a term that the jury is supposed to judge. A patronizing juror could think, “sure, she says it’s rape, but does she really know whether it’s rape legally?” That doesn’t help her cause. But if she describes the crime by way of its elements, they are more likely to see her testimony as putting together puzzle pieces instead of concentrating on he said/she said credibility issues.

    So a prosecutor can present the actual rape statutes to a victim and explain thoroughly how the jury will be asked to evaluate them. Then, in testimony, the victim can describe the events using the buzzwords in the statute as much as possible. In this case, Bowen would have at her disposal the text of the first degree sexual assault statute, which reads:

    Any person who subjects another person to sexual penetration (a) without the consent of the victim, (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct, or (c) when the actor is nineteen years of age or older and the victim is at least twelve but less than sixteen years of age is guilty of sexual assault in the first degree. Neb. Rev. Stat. s28-319

    She could describe the situation by saying, “I woke up with him inside me, penetrating my vagina with his penis. He was on top of me, and I wasn’t moving, but he was subjecting my body to his penis, thrusting into me again and again. I had been out cold — I was physically incapable of talking or making noises or resisting — I was totally unconscious. I never said yes, I never consented to him doing anything to me physically. All I did was pass out, and when I woke up he had been penetrating my body. Given how he was sweaty and really exerting himself to force his penis into me again and again, I can only assume he’d been sexually penetrating me for a long time before I woke up, even though I was completely blacked out and incapable of moving at all. All the while he was huffing and puffing and forcing himself inside me, even though I was out cold.”

    Behavioral theorists talk about anchoring as a way for the brain to make connections, IIRC. If the rape victim, without saying the word “rape,” can just continue to use the words inherent in the elements of the crime, it might help the jury to reach the conclusion that she was raped — not because she said she was raped (even when that’s absolutely true), but because she said all the things that they need the prosecution to prove for the jury to convict the assailant of rape.

    Or they’ll still slut-shame her and let yet another rapist go free. But in a preposterous situation such as this, it seems reasonable to at least make the best of it and fight them as hard as possible.

  27. karen in kalifornia
    June 21, 2007 at 6:52 pm

    Just another reason to say clear of Nebraska

  28. Hawise
    June 21, 2007 at 11:01 pm

    Hawise, Thomas & Norbizness, the firm to call when legal language is just not enough (or allowed). We can help you to elucidate or expectorate on subjects high or low. Reasonable rates, heck sometimes we just do it for fun.

  29. June 22, 2007 at 1:27 am

    The first is that prosecutors should try to ban the word “sex” on the basis that it prejudicially infers consent where such consent is controverted.

    They did – along with “sexual intercourse”- and the motion was, to no one’s surprise, denied.

  30. June 22, 2007 at 2:36 am

    Miller, how is rape not inherently sexualized?

    I think what Miller was talking about is the fact that rape is simultaneously minimized and shown to sexy. “Sex crime” especially suggests that the crime may be just an icky form of sex, rather than a sexual form of violence. Even worse, a lot of newspapers will make sure that people know right away that she was drunk, will describe how she is dressed, describe the rape of a child as mere molestation, etc.

    I think that “sexual assault*” is a better legal term than “rape” though, because it makes it easier to define greater degrees of criminal acts. For example, I think that it would make it easier to legally define sexual harassment that ends in the victim submitting to sex as a crime more serious than just harassment, but less serious than what most people think of when they hear rape. Plus, it helps to avoid the problems that arise when the legal term is the same as the only commonly used layman’s term.

    And so, in places where “sexual assault” is already the legal term, I can see newspapers using it in addition to rape. Or even instead of – as long as the degree of sexual assault is made immediately clear and the article doesn’t give readers the impression that the gang rape was just sexual harassment.

    *I like “sexual battery” best, though, because, unlike sexual assault, it’s less likely to evoke “mere” groping and instead evokes both harsher violence and legalese. And it leaves “sexual assault” to refer to things that most definitely aren’t rape, but are crimes where violence takes a sexual form – such as groping – which is how (I think) it’s most commonly used now.

  31. W. Kiernan
    June 22, 2007 at 7:30 am

    “Intercourse” is obviously the wrong word. “Intercourse” means it goes both ways. Rape goes one way. I wonder if the judge would allow the word “penetration”? Or better yet, the phrase “unwanted penetration”? If not, I wonder if the case can be transferred to a judge who has not already clearly pre-judged it before any of the witnesses’s testimony?

  32. Kristen
    June 22, 2007 at 9:37 am

    *I like “sexual battery” best, though, because, unlike sexual assault, it’s less likely to evoke “mere” groping and instead evokes both harsher violence and legalese. And it leaves “sexual assault” to refer to things that most definitely aren’t rape, but are crimes where violence takes a sexual form – such as groping – which is how (I think) it’s most commonly used now.

    Personally, I hate sexual “assault” as a term in the U.S. In the U.S. assault generally means putting someone in apprehension of a physical threat…rather than “battery” which is unlawful touching. When my crim prof explained that the origins of the term was that rape was generally considered sex coerced by threat of violence, my head nearly exploded. Even the words we use undermine the idea that rape is an act of violence.

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