Judge Bans the Word "Rape" at Rape Trial
By: Gerri L. Elder
Tory Bowen reported to police that she was raped, but when she testified at the trial of her alleged rapist, she didn't say that the man raped her. She didn't tell the jury that she was a victim of rape because she wasn't allowed to use the word "rape" at the rape trial. Sound bizarre? Some prosecutors and victims' rights advocates worry that this may be a growing trend in sexual assault cases.
The criminal court judge in Lincoln, Nebr., banned the words "rape," "sexual assault," "victim" and "assailant" from being used at the rape trial. He found that the defendant's presumption of innocence and right to a fair trial were more important than Bowen's right of free speech and thus issued his order that specific language indicating that Bowen was raped could not be used.
The Kansas City Star reported that in Kansas a judge made a similar decision at the request of the defendant's criminal defense attorney and imposed language restrictions during the trial of Ray Slaughter, who was accused of raping a teenager in 2000. Despite not being able to use the word "rape" to describe the crime, prosecutors were able to convince the jury of what happened and Slaughter was found guilty of forcible rape and two counts of forcible sodomy.
After Bowen learned that she would not be able to tell the jury that she was a victim of rape, she filed a lawsuit challenging the judge's rulings as a violation of the First Amendment. The lawsuit was dismissed by a federal appeals court, but Bowen's lawyer has decided to petition the U.S. Supreme Court.
While many judges take measures to ensure that the defendant receives a fair trial and some even verbally warn lawyers to avoid using words in a prejudicial or inflammatory way, ordering that certain words are not to be used during a criminal trial would seem to be an extreme measure. This is especially true when juries are not aware that an order has been issued limiting the vocabulary during the criminal trial.
Bowen says that it is unfair that the judge refused to allow her to accurately tell the jury her side of the story. In 2004, when she was a 21-year-old college student in Nebraska, Bowen says that she was incapacitated with a rape drug and when she awoke she was being raped. However, at the criminal trial she was forced to say that she was "having sex" rather than saying that she was sexually assaulted.
In 2006 ,the jury that never heard the words "rape," "assailant," "sexual assault" or "victim" during the rape trial could not come to a conclusion and deadlocked. Before a second trial could take place in 2007, a judge declared a mistrial because of the publicity of the case.
Prosecutors dismissed the case before ever trying it again because of the judge's order banning words related to rape and limits on what evidence could be used during the criminal trial. The jury would never have heard about the prior rape allegations against the defendant if prosecutors had decided to go forward with a third criminal trial.
Bowen concludes that if the trial would have gone forward it would have boiled down to her word against the word of the alleged rapist, but because of the judge's order, she had no words that would allow her to adequately describe what really happened.