Nebraska Judge's Word Ban Promotes Myth About Sex and Rape
Victim and Prosecution Unable to Use Banned Words in Courtroom
That's what Lancaster County District Judge Jeffre Chaeuvront expects Tory Bowen to tell the jury, or at least some version of it.
Tory Bowen cannot use the word rape in her testimony. Nor can she use the words sexual assault or sexual assault kit. The prosecutors cannot use those words either. Nor can they say victim or assailant. (This word group will be known hereafter in this document as The Big Five)
But Ms. Bowen and the prosecutors, and the defendant and his attorneys can say sex, sexual intercourse, and intercourse.
Why? The attorneys for the defendant, Pamir Safi, said so. The judge agreed, and banned The Big Five from use in the courtroom. The defense attorneys claim that rape is a legal conclusion and how can the victim, I mean claimant, say she was raped if that is for a jury to decide.
Tory Bowen is not a victim. She is a claimant. She can't be a victim unless the jury convicts Pamir Safi of sexual assault. And she can't claim she was sexually assaulted because that is a legal conclusion. So the jury, never hearing the words sexual assault during trial, has to convict Safi of sexual assault before Tory Bowen is legally a victim of sexual assault.
Didn't Joseph Heller do something like this in Catch-22?
So Tory Bowen has to use the words sex, sexual intercourse, and intercourse.
Does Judge Chaeuvront think that sex and rape is the same thing, except rape means maybe the woman wasn't really in the mood?
The first trial, in November of 2006, (that's right, the upcoming trial in July will be the second tour of this macabre comedy) was conducted with the ban on The Big Five in place. Tory Bowen was forced to sanitize her testimony, using the word sex when she meant rape. The trial resulted in a hung jury.
This didn't give Judge Fahrenheit 451 a clue that perhaps the jury knew it wasn't getting the whole story?
In the June 17th issue of the Journal Star Online, Clarence Mabin reports Ms. Bowen's misgivings about the jury's perceptions of her word choice.
"They'll (jurors) think I'm choosing the word 'sex'," she said. (1)
The source of her concern is obvious. The word sex implies consent. And rape has nothing to do with consent. It has nothing to do with sex. Rape and sexual assault are criminal acts, not sex acts. The legal definition of rape may include the words sex act, but any rape victim will tell you, what happened to them was not a sex act. It was an assault.
When the prosecutors tried to have the words sex and sexual intercourse banned from the courtroom as well, Judge Chaeuvront denied the motion. Why? It seems the judge put forth the theory that without the words sex and sexual intercourse, there would be no way to describe the sex act at all.
How about the words rape, and sexual assault? They would describe what happened to Tory Bowen. It could be said rape and assault are pretty good descriptions of what happens to her in Judge Chaeuvront's courtroom.
But those are legal conclusions. And how the heck would Tory Bowen know if she was legally raped?
Tory Bowen and Pamir Safi were two strangers who met in a bar. They had drinks together. Allegedly, they left the bar together.
Ms. Bowen does not remember willingly going to a strange hotel room with Mr. Safi. She does remember waking up in this strange hotel room with Mr. Safi on top of her, pushing himself into her, and she telling him to stop.
Mr. Safi was charged with sexual assault, because he allegedly was aware Ms. Bowen was too intoxicated to consent.
No doubt this is a gray area. No doubt there can be questions as to Ms. Bowen's state of mind. There can also be questions as to Mr. Safi's character.
Is he a rapist, or merely a scumbag who took advantage of an intoxicated woman?
Is there a difference?
One of the sadder aspects of this whole ridiculous story is that the jury was not told of the ban on The Big Five in the first trial. Nor will the jury be told when Mr. Safi is tried again in July. That is the source of Ms. Bowen's fears; the jury will think, again, that she does not consider the assault on her person a case of rape. The judge has effectively forced Ms. Bowen to tell her story as the defense would like it to be told. This misogynistic benchwarmer of a judge has effectively corseted Ms. Bowen's testimony and rendered it sterile.
Judge Chaeuvront's courtroom ban demeans Ms. Bower and has reduced the charges against Mr. Safi to a barroom joke. The case is no longer about guilt or innocence. It is, instead, a commentary on our judicial system, and the ongoing myth it perpetuates, that rape is about sex, that rape is about the male of the species' inability to control his passions for sex, that rape is about a woman's morning after regrets.
Rape and sexual assault are criminal acts. A rapist is not in the throes of passion, or in need of sexual intercourse. A rapist is a calculating predator who forces himself onto others to gain control over them. He is not satisfying a sexual desire; he is satisfying his lust for violence. A rapist doesn't take advantage of his victims. He targets them, assaults them, and then walks away. He will continue to do so, because Judge Chaeuvront says it's not rape, it's sex
(1)http://www.journalstar.com/articles/2007/06/17/news/local/doc46745fdc16768519275420.txt
Published by Shelly McRae - Featured Contributor in Lifestyle
Having graduated with a major in graphic design, Shelly McRae now works as a freelance content provider. She writes on a wide range of topics, including health, business, design and social issues. View profile
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26 Comments
Post a CommentMy best friend 'Anna' was one of Safi's victims. Safi was one of my friends as well. I trusted him too. It could have just as easily been me on that night.
Anna woke up with Safi raping her. She woke up with bite marks all over her body. Safi has multiple victims, but only 3 went to trial (Anna has been approached by Safi's other victims since the trial). All girls who didn't know each other yet all had similar experiences with Safi. He is a serial rapist.
I wish I could understand why some of you think this has anything to do with females trying to get revenge, or that any of his victims deserved what they got. My best friend is no longer the outgoing, trusting, full of life person that she once was. Her life is changed forever, as are the rest of his MULTIPLE victims. Argue your points about the law and about symantics and verbage, but don't act for a moment that you know some sinister reason behind these victims needs to speak and choose their own words.
The article is not about the guilt or innocence of Pamir Safi. It is about the myth that still persists within the legal system, and apparently among members of society, that the crime of rape is about sex. It is not. It is an assault. Any court that allows the words sexual intercourse to be used interchangeably with the word rape - and that is what the judge expects the claimant to do- promotes the myth that sex and rape are the same act.
Incidently, Pamir Safi has been charged with RAPE before. He was not convicted because his lawyer had the words rape, rape kit, sexual assault nurse and sexual assault banned from testimony. This is not Safi's first time up at bat.
If she feels that she was raped then she should have no problem telling her story without using the word. If you look it up, a study showed over 43% of all rapes were false. It is so easy for girls to cry Rape. If she was unable to say No, then maybe he was unable to understand No. Thier are two side to this story. I say if she wants to use the word Rape, then I would say she needs to step out from behind "The Rape Shield Laws" Let look into her background, come up with guys she dated and have them tell thier stories about the accuser. Have we all forgotten the Duke Lacrosse team. False rape hurt all, men and women. Remember US citzens are and have died for are rights. One should I remind peolple, is Innocent until proven guilty.
The comments made about the guy seem to all assume that he was sober and knew what he was doing. The only thing the article mentions is both of them had shared some drinks. It does not mention his state when he left. She was just too drunk to consent, but he could not have been too drunk to realize this. From the article it sounds more like two people got drunk, had sex, then in the morning she realized what happened. Unless there is more to it than this article suggest this is just stupidity on both parties, but no crime has been committed.
Common feminist philosophy... all men are guilty, no matter the circumstances.
Kari-
Your example is seriously flawed. A more analogous example would read, Would your beliefs change if you were asked for money, and you gave it to the person who asked for it, and you were not allowed to testify that you were mugged. All that stuff about being wrestled to the ground and knife point is silly.
Part 2 from below:
evidence to prove "rape" beyond any reasonable doubt. The fact is that it would be sad to condemn this or any man to prison because a woman woke up one hung over morning with a stranger & she felt guilt that turned to blame. I'm not saying he didn't rape her...i'm just asking who can say with 100% certainty? Really, who can? Her? She doesn't recall meeting him or choosing to leave a bar with him. I doubt she knows for sure herself, and yes...it's her responsibility (not his) if she did say yes.
I agree that she should be able to state the facts as she perceives them, not a version prescibed to her by a judge or legal system. However, I'm not convinced he's guilty. She was seen on video leaving a bar with him but her testimony states that she "didn't recall meeting him". Well...if she CHOSE to leave a bar with a stranger that she couldn't remember in the morning, then who can make the determination of what other choices she made that she conveniently "can't recall". In fact, she states that he was on top of her in the morning, and stopped when she told him to. that fact alone doesn't support the argument that he "raped" her. A rapist doesn't typically just stop after already being penetrated. I don't mean to suggest in any way that getting drunk and leaving a bar with a man automatically elliminates a woman's right to being treated with respect, but it certainly doesn't help her in this case. It becomes a "He-said/she-said" that is virtually impossible without additional evide
Maybe she should've just used the f word to describe the physical interaction the defendant had with her intoxicated body that may or may not have been additionally incapacitated by the mysterious presence of a controlled substance in her bloodstream that might possibly have been intentionally placed in her beverage while her attention was diverted in order to prevent her from making a coherent choice about whether or not to allow Sir Safi to stuff his stiff sausage into her special space. ... but that's probably banned too!
from the alleged victim's opinions this looks like an overzealous prosecution that unfortunately backfired because of a judge whose idea of 'fairness' looks a bit more like retribution. From the background of the case, it looks like there was first a motion to suppress the words 'sex' and 'intercourse' without much success - after all that would be even more prejudicial than removing the word 'rape.' I am a student of the university of nebraska system myself, and as much as I hate anything that promotes the backwards, redneck image of the Midwest, I can all too easily see a girl who is so embarrassed that she can't even bring herself to admit that what she had was sexual intercourse. However, it doesn't change the fact that she couldn't have properly given informed consent to sex, and whatever the opinion of a conservative judge who thinks she got what she deserved.