Rape Victim Sues Judge Over R-Word Ban

Criminal Procedure

Posted Sep 10, 2007, 10:39 am CST
By Martha Neil

An alleged acquaintance-rape victim has sued the Nebraska judge who banned her from using the word "rape" in testimony, in what her lawyer describes as a troubling trend.

A federal lawsuit filed in Lincoln contends Lancaster County District Judge Jeffre Cheuvront violated Tory Bowen's rights of due process and free speech by banning "rape," "sexual assault," "victim" and "assailant" from testimony in the November 2006 trial of Pamir Safi, according to the Omaha World-Herald. The trial ended in a hung jury.

As discussed by ABAJournal.com, Cheuvront sought to prevent unfair prejudice. But Bowen (who agreed to use her name) said she couldn't testify accurately and effectively.

She says she met Safi at a downtown Lincoln bar one night in October 2004, blacked out and awakened the next morning with him on top of her, according to the World-Herald. He says she consented to sex. She says she was too intoxicated to do so.

Bowen's lawsuit may be a long shot: Clarence Mock, who represents Safi, says federal courts aren't likely to intervene in a state evidentiary matter.

However, "If attorneys aren't able to refer to her as a victim and if this person is acquitted, that's it. He can't be tried again," Raneta Lawson Mack, a Creighton University law professor, tells the Omaha paper, explaining that a decision by the federal court before the next trial is "critical ... to prevent what could be perceived as a miscarriage of justice."

Bowen's lawyer, Wendy Murphy, says such language bans are increasingly common nationwide, but haven't yet, to her knowledge, been addressed by the federal courts. While witnesses don't have unrestricted free-speech rights, neither do judges have free rein to restrict their language, she tells the Lincoln Journal Star. "This case raises the question: 'Where do you draw the line?' "

(Hat tip: How Appealing.)

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Posted by SG - 1 year, 2 months, 2 weeks, 4 days, 15 hours, 39 minutes ago

Isn’t the justice system’s duty to strike a balance between the rights of the accused and the rights of the accuser? Sadly, there seems to be a disturbing trend where courts are bending over backwards to meet this duty beyond what is constitutionally required - to the detriment of victims of crime. Any one who works in the prosecution knows how difficult it is to prosecute rape and sexual abuse cases, but some judges and rulings make it nearly impossible. Justice denied is justice denied.
Posted by Allan Huss - 1 year, 2 months, 2 weeks, 4 days, 15 hours, 35 minutes ago

This is another of those silly lawsuits that give lawyers a bad name, and counsel bringing the suit should be sanctioned. Judges are absolutely immune from suit for actions taken from the bench, no matter how much one disagrees with the ruling. If the victim doesn’t like the ruling, there are lawful methods, such as complaint to Nebraska’s equivalent of our Judicial Tenure Commission. But our system of law demands that judges be able to rule without fear of suit by people (especially those who are not party to the litigation) who disagree with one ruling or another.
Posted by CSW - 1 year, 2 months, 2 weeks, 4 days, 14 hours, 58 minutes ago

Isn’t the proper remedy for this an application for a Writ of Mandamus? The article doesn’t describe the nature of the suit very precisely. The trial court’s ruling seems overly restrictive and an abuse of discretion to me. The banned words are properly descriptive of the victem’s view of the conduct.
Posted by Diana - 1 year, 2 months, 2 weeks, 4 days, 14 hours, 44 minutes ago

If she can’t use the “r” word, what was she supposed to use “no challenged”?
Posted by JKB - 1 year, 2 months, 2 weeks, 4 days, 13 hours, 30 minutes ago

Isn’t the first purpose of the trial process to determine whether or not particular actions of the defendant meet the elements of the crime, with in this case the crime being charged as “rape”? I don’t see why there’s so much upset over the judge requiring the victim to describe what happened to her without using words that represent the ultimate legal concusion. On the civil side, one hears “objection: calls for a legal conclusion” all the time.
Posted by ged - 1 year, 2 months, 2 weeks, 4 days, 12 hours, 27 minutes ago

I agree with you JKB. When did it become a “surprise” or unfair to prohibit a witness of giving an “opinion” on the ultimate issue of the case? I have seen this woman on TV and she is articulate enough to describe what happened to her without using the word Rape or calling herself a “Victim.“ In response to Diana she is supposed to testify as to what happened not her legal conclusion. As to attorney Murphy’s comment that judges do not have “free rein to restrict [witnesses] language,“ I can only suggest she head back for a refresher on the rules of evidence and the rules of court as they apply to trial work!
Posted by Neil - 1 year, 2 months, 2 weeks, 4 days, 10 hours, 35 minutes ago

Rape is a legal conclusion, and the purpose of a trial is to determine through evidence whether rape occurred. Because the defendant is entitled to a presumption of innocence, the prosecution through the testimony of the complaining witness must prove, beyond a reasonable doubt, the rape charge. The prosecution must present evidence that the complaining witness’s body was penetrated without her consent. Nowhere in this process is the complaining witnesses’ legal conclusion on the ultimate issue of “rape” necessary for a competent prosecutor to present a prima facie case. The complaining witness should testify as to the facts only.
As to SG comments, I disagree. If anything, the disturbing trend of the law is to bend over backwards for complaining witnesses, often before any crime has been proven. Furthermore, the recent unjust Duke lacrosse prosecution shows that not every cry of rape is real. That is exactly why a complaining witness needs to testify as to facts, not legal conclusions.
Posted by Jacob - 1 year, 2 months, 2 weeks, 3 days, 8 hours, 27 minutes ago

Rulee11(C) anyone??? How is her due process right violated? What process is she due?
Posted by J Thomas - 1 year, 2 months, 2 weeks, 2 days, 15 hours, 29 minutes ago

Neil (post #7) is absolutely correct. What’s news here is not that a judge barred the use of a term of legal conclusion but rather that he’s being sued for it. Counsel for the plaintiff is skating on thin ice. I also disagree with SG’s trend comment (post #1). The vast amount of yellow journalism in cable news and other mass media would have us believe the trend SG claims. To the contrary, I believe an examination of our justice system at the trial level would reveal the opposite.
Posted by Rusty - 1 year, 2 months, 2 weeks, 1 day, 14 hours, 39 minutes ago

Isn’t it just a bit strange that the complaining witness in a criminal case can’t even use the words that describe the crime being charged? If a prosecutor is charging a defendant with “rape” or “sexual assault,“ and that defendant has been arraigned on the charges of “rape” and “sexual assault” in open court, and the charges of “rape” and “sexual assault” will be explained to the jury (both during voir dire and during the judge’s charges at the end of the case), then where’s the prejudice to the defendant?

Assume for the moment that we take this to a different crime. Someone’s charged with “murder,“ and a judge rules that an eyewitness to the crime can’t use the words “murder,“ “kill,“ “victim,“ or “assailant.“ If I saw such a crime and intended to testify in court, I’d want to say “I saw the murder. The assailant [pointing to the defendant] killed the victim, with the butcher knife, in the conservatory.“ How is the rape case any different?

Sure, false charges are brought, and I’m certainly not saying that there should be a presumption of guilt, but to disallow the words that describe the very crime being prosecuted is just illogical. Definitely an abuse of discretion.

As to the type of action being used, I would think an interlocutory appeal would be a better method than a lawsuit against a judge in his personal capacity.
Posted by eye - 1 year, 2 months, 1 week, 5 days, 16 hours, 47 minutes ago

1. Judges can be sued. They are bonded by the state and we do have a lawsuit in NE recorded at the appeal level against Judge Troia years ago.
2. I live in NE, the commission rejects 99.9% of the complaints. I filed one not long ago over a judge using judicial letterhead for his personal business, (to the level of contacting investment companies saying he was a judge and he wanted info on an account that was not his) The commission ignored the complaint altho it is a direct violation of the ethics code. Making a complaint is useless but she can try I suppose.
3. From what I read this issue of banning words has not been addressed at the federal level and the complainant feels its an issue that should be heard. Not convinced that it is frivolous and if this is a “new” thing in any state to start banning words in some trials and not in others it is an issue that should be decided so that courts are consistent and the parties are not at the mercy of the judge or compelled to judge shop.
4. The judge is to ensure both parties rights. A ban of these words goes one way-protects him , compromises her testimony.
5. Give the jury some credit judge , they know shes alleging sexual assault and rape. I see it as micr managing.

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