Learned Hand, he ain’t

June 9, 2008

Boy, I don’t get this one:

It’s the only way Tory Bowen knows to honestly describe what happened to her.

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.

[. . .]

Bowen’s case is part of what some prosecutors and victim advocates see as a national trend in sexual assault cases.

“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.”

How can there be a trial for rape if the alleged victim of the rape isn’t allowed to allege that she was, in fact, raped? Even in today’s politically-correct thicket of legal idiocies, this makes no sense at all. Yes, Mr. Jones, I know the defendant is charged with robbing your bank, but you will not be able to use the term ‘robbery’ in front of the jury. It’s much too inflammatory a word.”

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9 Responses to “Learned Hand, he ain’t”

  1. Mike Harvey Says:

    That’s horrible. Would it be ok for her to say she feels “raped” by the judge’s legal idiocy?

  2. Harl Delos Says:

    The word “rape” is a legal word, and the jury is convened to decide not just who did it, but whether she was raped or not.

    I can see a judge saying that NO woman is allowed to allege that she was raped, because she’s drawing a legal conclusion she isn’t qualified to assert. Similarly, I could see a judge ordering that a witness could not assert that a defendent committed arson.

    I wonder why other judges haven’t been making this ruling all along.

    The witness would obviously be allowed to say that the man sloshed the floor with fluid from a red can that said gasoline, and when he lit a match and threw it on the puddle, flames lept up. Those are statements of fact, not opinions.

    Similarly, she can say that the guy clawed at her, ripped her dress off her, beat her, and held her down while he penetrated her. Those are statements of fact, too.

    The highly descriptive narrative would probably be emotionally harder on her, but on the other hand, it would have significantly more impact on the jury than simply saying, matter-of-factly, “Oh, he raped me. (Sigh)”. She could assert that she objected to what was happening – that’s a statement of fact – and that when it was all over, she was emotionally outraged, feeling dirty, shamed, violated, spent.

    “Just the facts, ma’am” does interfere with her right to free speech, but the only time free speech should occur in a trial is in the lawyers’ opening statements and their summaries. The witnesses are only there to give testimony. They are allowed to speechify any other time and any other place, but they’ve taken an oath to tell the truth, the whole truth, and nothing but the truth. Until the jury rules, whether or not she’s been raped by the defendant is just an opinion.

  3. tim zank Says:

    Ok, so let’s take this to it’s logical conclusion. By extension, in this nutbags courtroom, the victim of a stabbing is on the stand, the prosecutor can’t ask “Is this the man that stabbed you?”????

    Or the eye witness to a shooting can’t be asked “Is this the man you saw shoot your friend?”??

    What on Earth is the difference between “Is this the man that
    a. shot you?
    b. stabbed you?
    c. robbed you?
    or
    d. raped you?
    Please…..enough already

  4. Harl Delos Says:

    Rape is unique in that the physical act is entirely legal if consensual, entirely illegal if nonconsensual. Shooting someone, stabbing someone, or robbing someone is illegal no matter how cooperative the victim is.

    And yes, it would be legitimate to ask if someone was shot, but not appropriate is to ask if someone was murdered.

    It’s factual that someone pointed a gun at a body, the gun made a loud noise, and that a body jerked shortly after that, and then smoke crept out of the barrel are all evidence by which a person could reasonably be expected to know that the person shot the body.

    However, shooting does not equal murder. The person may shot someone who appeared to be sleeping, but was in fact, dead. The person may have survived the shooting. The person may have been wounded by the gunshot, but died of another cause altogether. That’s why autopsy results are introduced at murder trials – so that the doctor who performed the autopsy can testify as to cause of death.

    It’s the jury’s job to determine whether or not sex constitutes rape. Someone cannot decide to withhold consent the next day, but juries regularly find that’s what happened. It’s not rape unless the rapist knew (or should have known) that his sex partner was unwilling or unable to give consent. If his partner doesn’t want to, and yet cooperates without making her feelings known, a jury may decide it’s not rape, no matter what the “victim” declares later.

    That’s why we have trials, Tim – so the jury can render a verdict.

  5. Leo Morris Says:

    A person is on trial for a specified crime, such as “rape.” Presumably, the jury hears at some point, “Welcome to court, where so and so is on trial for the charge of rape.” Forbidding the alleged victim to say the name of the charge seems pretty silly to me.

  6. tim zank Says:

    Despite Harl’s eloquent and absurdly long explanation, it still defies common sense to conduct a rape trial without using the word rape. It does however point out just how dangerous it is to have activist Judges that rewrite the law as they go.

    For over two centuries men have been been tried in this country for rape using the word rape, and suddenly in 2008 this moron Judge has an epiphany and we’ve been doing it wrong all this time??

    The hell with the victim, eh Harl? Let’s keep focusing on defendants feelings & rights.

  7. Harl Delos Says:

    “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.”

    Bowen should be able to tell the jury what actually happened to her – that is, he held her down despite her screams, he penetrated her vaginally once despite her struggles, and rectally twice. Whether that is rape or not is not a matter of fact, though, it’s a matter of opinion.

    Only an expert witness is allowed to offer opinions as testimony. Have you ever heard of a witness being certified to the court as an expert on mind-reading? Neither have I.

    It’s the jury’s job to decide whether that constitutes rape or not. The prosecutor will argue that it is, both before testimony is given and at the conclusion of the testimony, but the prosecutor doesn’t take an oath to tell the truth, the whole truth, and nothing but the truth. Until the jury renders a verdict, Bowen stating that she was raped doesn’t qualify as “nothing but the truth”. It’s her opinion, which she may NOT testify to.

    We don’t have to use juries to settle these matters. They skipped those niceties in Marion in 1930, with Thomas Shipp and Abram Smith. On the other hand, if people in the other 49 states have ever heard of Marion, it’s probably for Shipp and Smith.

    I’m not saying “to hell with the victim”, Tim. I’m saying it is quite reasonable to give the jury the facts of the case, and let them do the job they were convened to do. Why is it that you are saying “to hell with the constitution”?

  8. tim zank Says:

    “Why is it that you are saying “to hell with the constitution”?

    Harl, I’m not. The Judge is.

  9. Harl Delos Says:

    Where in the constitution, Tim, does it say that you’re allowed to testify, under oath, that the testimony you’re about to give is the truth, the whole truth, and nothing but the truth – and then violate that oath by expressing opinions?

    Forty years ago, the defendant was allowed to point out that his accuser was a slattern. Some judge was first to point out that her prior sexual history is irrelevant and prejudicial, and thus inadmissible.

    This is a Nebraska case. In State vs. Welch (1992), another Nebraska case, the judge ruled that statements made by victim to examining physician that she had been molested for 4 years by her brother, that she has been sexually assaulted four times in high school, and that her 5-year-old child was the product of a sexual assault were not relevant and not admissible.

    Not relevant? If those are lies, I’d hesitate to believe her on the current accusation. If those are the truth, I’d question whether she is letting men know that she’s withholding consent.

    The jury needs to determine three things:

    They need to determine whether the defendant is the right person to be charged.

    They need to determine whether the activities engaged in would qualify as sex under Nebraska law.

    They need to determine whether he knew that consent was being withheld. What she knew is immaterial.

    In what way does asserting “I was raped” give the jury ANY evidence at all to make those three determinations?

    She’s free to express her opinion – except when she chooses to take an oath to tell the truth, the whole truth, and nothing but the truth. When she takes that oath, she needs to give evidence, not opinion.


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