Constitutional Law

Mistrial in Rape Trial With R-Word Ban

Updated: Ruling from the bench, a Nebraska judge today declared a mistrial in a controversial acquaintance-rape case in which the accuser was barred from using the word “rape,” among other specific language, when testifying.

Defense lawyers said they believe Lancaster County District Judge Jeffre Cheuvront declared the mistrial just before jury selection was to begin because of extensive publicity that makes it difficult for defendant to obtain a fair trial, reports the Omaha World-Herald.

However, it appears that the judge may also have been influenced by alleged victim Tory Bowen’s appeal Tuesday to the Nebraska Supreme Court of his ruling that witnesses cannot use the words “rape” and “victim,” among others. The judge imposed the ban to prevent unfair prejudice to the defendant. But Bowen—who agreed to have her name used—says it violates her First Amendment right of free speech. She says the ban also makes it difficult for her to testify persuasively, because she must pause to think about word selection before answering questions, reports the Associated Press.

This is the second mistrial in the case this year; an earlier trial of Army reservist Pamir Safi, 33, which imposed the same language ban, ended in a hung jury. Bowen, 24, a former student at the University of Nebraska, says he raped her after the two met at a Lincoln bar in the university town. He says the sex was consensual; she says she was too drunk to give consent, as he knew, according to another Associated Press article.

What allegedly happened after the two met and shared some drinks at the bar on Oct. 30, 2004 is detailed in a Slate report: “Witnesses saw them leaving together. Bowen claims not to have left willingly and has no memory of the rest of that night. She claims to have woken up naked the next morning with Safi atop her, ‘having sexual intercourse with her.’ When she asked him to stop, he did.”

The case has provoked street demonstrations, as well as complaints by victim advocacy groups about the language ban. Also at issue in the case were potential sanctions of Bowen by Cheuvront, if she violated the ban on the stand, as well as her reported plan—which she recently at least partially renounced—intentionally to use forbidden words during trial. Her testimony about the issue is detailed in the Columbus Telegram.

A more detailed analysis of the issue presented by the alleged victim’s use of the word “rape” in testimony was subsequently published by Time magazine on July 23, 2007.

(Originally published at 4:26 p.m. on July 12, 2007.)

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