It's the only way Tory Bowen knows to honestly describe what happened to her.We've discussed Bowen's case before at Shakesville, along with the increasing reluctance to use the word "rape" in media coverage of rape cases; now it's becoming a trend at rape trials, too.
She was raped.
But a judge prohibited her from uttering the word "rape" in front of a jury. The term "sexual assault" also was taboo, and Bowen could not refer to herself as a victim or use the word "assailant" to describe the man who allegedly raped her.
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's a topic that's coming up more and more," said Joshua Marquis, an Oregon prosecutor and a vice president of the National District Attorneys Association. "You're moving away from what a criminal trial is really about."It's also forcing them to commit perjury—which is why I can't understand for the life of me how this can possibly be constitutional. Sexual intercourse connotes consent. Testifying to having "sexual intercourse," when one has not given consent, is not accurate. Effectively, rape victims are being compelled to perjure themselves to protect their rapists. Charming.
In Jackson County, Senior Judge Gene Martin recently issued a similar order for the trial of a Kansas City man charged with raping a teenager in 2000.
…But in cases where the defendant's version of events is pitted against that of the alleged victim, "words are really important," Marquis said.
"To force a victim to say, 'when the defendant and I had sexual intercourse' is just absurd," he said.
"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."Uh huh. Of course, "sexual intercourse" is loaded too—loaded with implied consent!
…Those who defend the accused say the determination of whether what happened was rape or consensual sex is up to juries, not witnesses.
"They shouldn't be able to use the word 'rape' as if it is a fact that has been established," said Jack King, director of public affairs and communications for the National Association of Criminal Defense Lawyers. "These are loaded words."
The argument is that disallowing victims to use the word "rape" constitutes balance—but it's no more balanced than if the defense was required to use the word rape.
This is all about the idiotic conventional wisdom that women go around wantonly filing false rape reports willy-nilly (no—false reports of rape are more infrequent than false reports of car theft, which itself is rare) and that any time a woman reports a rape, it ends up at trial (which is so made of no fucking way that it's not even funny, and the difficulty of bringing any rape case to trial is well-covered ground at Shakesville, so I won't go into it again). And the day I see a judge issuing an order that a dude can't say he was mugged on the stand lest it prejudice a jury in a robbery trial, when he's forced to say he handed his wallet to the defendant,* then I might believe that this is really about some principle of protecting defendants full-stop, and not just more horseshit designed to make prosecuting rapists even more mind-fuckingly difficult than it already is because everyone knows there's no such thing as real rape victims—just scorned women with axes to grind.
[H/T to Shaker Angelos.]
* Forgive the tacit conflation of rape with property theft, which I singularly do not support. I couldn't figure out how else to use a courtroom example without that inadvertent ugliness.