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Last fall a Nebraska district judge
granted a motion by defense attorneys which effectively bars use
of the words rape, sexual assault, victim,
assailant, and sexual assault kit in the courtroom
at the rape trial of Pamir Safi, according to Slate magazine. As
a result, the defense and the prosecution have had to use the
same word—sex—to refer to both forcible sexual assault as well
as consensual sex. The jurors were not advised of the gag order.
Even the victim herself was prohibited from using the words
rape or sexual assault when she testified for 13
hours at the trial last fall. The woman, Tory Bowen, believes
that describing what happened to her as sex is almost an assault
in itself. "This makes women sick, especially the women who have
gone through this," the victim told the Omaha World Herald.
"They know the difference between sex and rape."
Judge Jeffre Cheuvront’s ruling is based on Nebraska law which
gives judges the latitude to ban evidence or language that
present the danger of "unfair prejudice, confusion of the issues
or misleading the jury," and defense lawyers are increasingly
using this tactic.
Prosecutors in Bowen’s case tried to “level the playing field”
by attempting to have words like sex and intercourse
barred from the courtroom as well, on the same prejudicial basis
as the defense motion. But the judge denied the prosecution
motion, apparently because there would be no words left to
describe the sex act at all, according to Slate. Safi’s
first trial resulted in a hung jury when jurors deadlocked 7-5
last fall. The retrial is scheduled to start in July, with the
same language prohibitions in place.
Wendy Murphy who teaches at the New England School of Law has
noticed a growing trend on the part of the defense bar to scrub
the language of trial courts, 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.
Source:
“Gag
Order: A Nebraska judge bans the word rape from his courtroom,”
Slate, June 20, 2007
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