Slate has an article up about a rape trial where the words “rape” and “sexual assault” are banned. No, I’m not kidding.
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.
Oh. My. God.
No, you asshole, it’s the victim’s conclusion (she was not a “witness” to her own rape, she was the victim of it) that she was raped. It’s up to the jury to decide whether or not they believe her.
Should, perhaps, we bar word like “victim” and “murder” from murder trials? Instead resort to phrases like “the deceased,” “died” and “no longer with us?” Thankfully, the writer addresses that question:
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.
Yes, our society certainly does view rape differently. When someone says they were robbed, no one tries to tell them that it didn’t happen. Sure, we argue about the specifics. Who did the robbing? How can we be sure? How brutal was it? But no one argues that the victim actually gave his wallet away. Yes, people have consensual sex far more often than they give their wallets to perfect strangers. But rape accusers are also consistently treated like liars when only a tiny fraction of them are.
This is not about “innocent until proven guilty” or protecting the defendant. This is about controlling the victim’s perception, and in turn society’s perception, of what happened to her. In the comments to this article, you will see the argument that this really isn’t such a big deal, because words like “forced sex” can still be used. That is not the point. The point is that the victim views what happened to her as rape. Rape and sex are not the same thing. Asking the victim to call what was done to her “sex” is violating. It’s trying to erase her experience. It’s trying to reshape it “neutrally” for a jury, when what happened to her was anything but neutral. By denying the victim the right to call her assault by the words she chooses, she is being called a liar.
The victim in this case says so very clearly:
“The word ‘sex’ implies consent . . . I never once would describe (what happened) as sex. He’s making me commit perjury.”
In my opinion, the judge and defense attorney are also committing emotional assault upon this woman. Instead of allowing both sides to define their own experience of what happened, the court is blatantly siding with the defendant’s view of reality. They are asking the victim to deny what she knows, and to call what was done to her something that she believes it’s not. There is nothing benign here. This is an all out attack on the rights, not to mention credibility, of rape victims.
One of many problems here is that our society does not understand how rape and sex are fundamentally different, particularly to a rape victim. The sooner that our society realized that rape and sex are not the same thing, the better. But it’s looking farther and farther away.
{ 4 comments }
I definitely agree that rape is not sex. Rape is an attack, an assault. That it is an assault on someone with vagina doesn’t make it sexual, because women are more than just vaginas. Not to mention that rape is said by experts to be about power, not about sexuality.
Have you noticed that newspapers are afraid of the word rape these days, too?
Yes. Sadly, I have noticed that.
I can’t even handle this. This is one of those stories that I caught in the news, and had to stop reading and walk away from my computer and decide to return to, when I could calm down and be sure that it wouldn’t completely destroy my entire mood and day. (I’ve been moody lately, and anger tips the scales, even when its the only reasonable response).
ugh! What’s also striking to me, is that people think this is reasonable, in light of what happened with the duke lacrosse team. In light of the times when they have caught the wrong guy, and an innocent person (or people) have been persecuted, because, yes – that SUCKS. That REALLY sucks and ruins people’s lives. I get it. But rape ruins more lives and MORE often. And this is largely missing the point, if they think this will reform the justice system in any way. Removing the word “Rape” from a courtroom doesn’t help our justice system to work correctly… however removing the fucking corruption and money and bribes and known obstructions of justice and competitive power play career bonuses of prosecutors might. They might try working on that, if they weren’t so busy putting victims on trial instead. This is being careful now?
grrrrr!
ok. thats my rant.
b
It’s terribly upsetting, but in newspapers I’ve actually seen the phrase “had sex in a forceful manner with the victim” used instead of the word “rape”, when the article was clearly describing a rape.
It really upsets me that this is happening.
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