Slate's Bizbox
jurisprudence: The law, lawyers, and the court.

Gag OrderA Nebraska judge bans the word rape from his courtroom.

By Dahlia Lithwick
Posted Wednesday, June 20, 2007, at 7:27 PM ET

(Continued from page 1)

The fact that judges are not rushing to ban similarly conclusory legal language from trial testimony—presumably one can still say murder or embezzlement on the stand—reflects not just the fraught nature of language but also the fraught nature of rape prosecutions. We as a society still somehow think rape is different—either because we assume the victims are especially fragile or because we assume they are particularly deceitful. Is the word rape truly more inflammatory to a jury than the word robbery? Yes, the question of the victim's consent surely makes a rape trial more complicated than some other kinds of criminal trials. But the fact that the evidence may be more equivocal hardly makes the underlying word more likely to incite blind juror outrage.

Wendy Murphy teaches at the New England School of Law and has spent years studying the relationship between language and the courts. She describes Judge Cheuvront's order as part of a growing trend on the part of the defense bar to scrub the language of trial courts, one that has "really blossomed after the Kobe Bryant trial." The big shifts she's noticing: Whereas defense attorneys once made motions to limit the use of the word victim in trials, there is an uptick in efforts to get rid of the word rape. Moreover, she points out, these strategies used to be directed toward prosecutors, but they are now being directed toward witnesses as well.

Do a Lexis search on the influence of inflammatory language on juror perceptions. Try to find some social science data on the effect of loaded courtroom words on conviction rates. Not much out there, notes Murphy. That's one of the things that makes the Nebraska case so maddening. If judges are going to take it upon themselves to issue blanket orders that would have witnesses testifying that black is white, one might hope that they are trying to remedy some well-documented evidentiary problem.

You needn't be a radical legal feminist to cringe at the idea of judges ordering rape complainants to obliterate from their testimony any language that signifies an assault. At worst, that judge is ordering her to lie. At best, he is asking her to play at being a human thesaurus: thinking up coded ways to describe to the jury what she believes to have happened. If Mock, Safi's attorney, is correct in stating that "trials are competing narratives of what happened," why should one side have a lock on the narrative language used? Can it really be that the cure for the problem of ambiguous courtroom language is to permit less of it?

And there's another problem underlying Cheuvront's order: Jurors will not be told of it. Not only is the "dangerous" language to be hidden from them, but the fact that it's been hidden will be concealed from them as well. They are not merely too emotional to hear the phrase rape kit. They are also evidently too emotional to know it's been hidden from them in the first place.

Professor Robert Weisberg teaches criminal law at Stanford Law School, and he acknowledges that judges in rape trials face a particularly complicated challenge when it comes to keeping prejudicial or conclusory language from a jury. He has no problem, for instance, with the fact that courts have gradually jettisoned the word victim for the less loaded complainant. The former proves too much. But he cautions that there is no value-neutral word for unwanted sex and that the word intercourse "understates what happens in a rape case." He warns that a blanket ban on the word rape may in fact be the worst solution. A jury instruction from the judge or gentle admonitions that witnesses watch their language throughout the trial is the better, more transparent fix. "That," says Weisberg, "is what judges get paid for."

If we've learned anything from the dreary wars over politically correct language in America, it's that purging ugly words from the lexicon hardly makes the ugly ideas they represent go away. Trials exist to ferret out facts, and papering over those ugly facts with pretty—or even "neutral"—words doesn't just do violence to abstractions like language and meaning. When it's done in a courtroom, the real victim—if I may still use that word—may well be the truth.

VIEW AS SINGLE PAGE
Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Dahlia Lithwick is a Slate senior editor.
Photograph of a witness stand by Spencer Weiner/AFP/Getty Images.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES

Remarks from the Fray:

There is a strong pro-victim reason for a trial judge to err on the side of the defendant in close evidentiary rulings. Double jeopardy means that appeal is a one way street--prosecutors generally cannot appeal acquittals, but defendants can of course appeal convictions. That means that if the trial judge went the other way and denied the defense motion, there's some chance that this would be reversible error and that the victim would then potentially have to go through another trial. This is a nontrivial matter--as the complainant in the NE case herself illustrates.

In short, to the extent that a trial judge thinks that the exclusion of the word "rape," while inconvenient, is unlikely to have a significant impact on outcome, there is good trial management reason to come out the way he did. Victims will benefit from that.

--LuxLawyer

(To reply, click here.)

I guess I'm not totally sure why this is some huge problem. Can't the lady use the term "non-consensual sex"? Doesn't that in fact encompass exactly what she experienced? Is the word "rape", which the defense has banned as being too loaded, needed by the prosecution precisely because it is loaded? She had non-consensual sex, she wasn't beaten, bound, and brutalized - which is what the term "rape" conjures up in the mind of many. If her accusations are true, she still suffered a terrible crime, but why the need for vengeance by the prosecution?

--Eigenvector

(To reply, click here.)

Gee, this conversation brings me back to sitting in a police station after being raped repeatedly by a serial rapist. Or maybe I should say, "having frequent non-consensual sex with a seasoned practitioner of non-consensual sex. " Fascinatingly, this very subject emerged in the first police interview: I was trying (through a badly bruised throat, hours after escaping) to provide the details of the n-c-s. At one point, I said something like: "then he made me give him a blow job." The detective turned off the tape recorder. He told me that I couldn't use words like "blow job" because the defense attorney would use my language to make me look like a slut (presumably, a slut whose modus operandi for picking up men involves going to sleep in her own bed -- too sexy!). We then haggled a little over the term "suck it," which, as a direct quote (and also as I was an English Major with an affectation for precision in language), I felt should be included in the original. After all, wouldn't the n-c-s'ers own language make him look like a slut, too? The police felt that the mere act of accurately reporting the n-c-s'ers own words would reflect badly on me. So the tape recorder went back on, and I said something idiotic and grotesquely untrue, like: "then he asked me to perform fellatio on him." And then, for the first time, I felt dirty. Non-clean, as you would say.

--Tina Trent

(To reply, click here.)

As a society I feel we have more sympathy for murderers than rapists. Hell, Tony Soprano is a hero. And I don't think this is just limited to fiction. As sickened as we might be by someone who can be deemed a "murderer," we're often willing to hear him out on the circumstances of the situation. But call someone a rapist, and they don't stand a chance at being heard out. Maybe it's our own disgust of this word that causes us not to consider the variables: it's either rape or it's not rape. Once the word is said, so many of us turn away.

Whatever the reason, this man is on trial, and if his verdict could depend on the use of the word "rape," then I would say there's a problem with the evidence.

--Sbrak

(To reply, click here.)

I think it's important, though, to remember that rape is about lots more than sex -- it's about the victims loss of control... or, better said, it's about the rapist gaining power over the victim and taking control.

So, now we have rape victims at risk for or suffering from post-rape psychopathology entering a courtroom and being told you can't say that word here... adding to the initial insult, the victim no longer even has control over her[or his] own narrative...

--TonyAndragna

(To reply, click here.)

The jury is not an audience of fools; they know they are in court because someone is being accused of a crime. But withholding from them the name of the crime, without informing them why the words can't be used, cripples them from the outset. How can they do their duty without the truth, the whole truth, and nothing but the truth?

Not every true rape is as graphic as what happened to this victim. And not every victim is as articulate as she. I can see why some posters here feel the victim in the story is being victimized all over again in court, which is precisely why so many women never report rape, preferring to live in fear and shame where no one can see the suffering.

--Isonomist

(To reply, click here.)

(6/24)

Washington Post
The Washington Post
OPINIONS
Over the Line
Harold Ford Jr. | I know what it's like to be smeared by your opponent.
: The Positive in Negative Ads
PLUS » Milbank: The President's Lullaby