Words are powerful. In court, they can make or break a case. But just how far should the judicial system go to control them? That's the question central to one case in Lincoln, Nebraska, where a sexual assault trial has morphed into a federal case over the First Amendment rights of witnesses and, more broadly, the language surrounding rape.
The story goes back to Oct. 30, 2004, when Tory Bowen, then a 21-year-old student at the University of Nebraska, met Pamir Safi, an Army reservist, at a downtown Lincoln bar. After sharing drinks, they left the bar together, went back to Safi's apartment and engaged in sexual intercourse. Bowen says she was too drunk and, she believes, drugged to consent to sex. Safi says their encounter was consensual.
Because the issue at stake was one of consent, not assault, the words that Bowen and Safi chose in court to describe the incident were particularly fraught. And according to Clarence Mock, Safi's defense attorney, the term rape seethes with enough emotion to prejudice a jury and is itself a legal conclusion. Once that word is uttered, Mock says, "the skunk is in the jury box and it's hard to get the smell out."
So, when the trial began last October, Mock convinced Judge Jeffre Cheuvront to ban the words rape, victim and assailant from the trial including from Bowen's testimony arguing that such words would be "unfairly inflammatory, prejudicial, and misleading." Nebraska state law holds that "evidence may be excluded if its probative value is substantially outweighed" by the potential for unfair prejudice.
Under the language restriction, Bowen testified that Safi "was inside of me and on top of me" when she regained consciousness the morning following their meeting. That trial ended in a hung jury.
Bowen says that the court's vocabulary ban hurt her credibility with the jury because she had to remain so cognizant of word choice as she testified, knowing that one mistake could result in a mistrial. "At first I just wanted a conviction," she says, "but now I want to be able to tell my testimony without language obstruction and have a jury decide."
Mock felt that the ban ensured his client a fair trial. "She, like any other witness, is subject to the rules of evidence," he says of Bowen. "To say that there is a First Amendment right of the witness to say whatever they want in a courtroom is a silly notion."
The second trial was scheduled to begin last spring. This time, Bowen refused to comply with the court-ordered language ban, which had been expanded to include the terms "sexual assault kit" and "sexual assault nurse." On Bowen's behalf, protesters demonstrated outside the Lincoln courthouse, and a petition, which Bowen signed, circulated on the Internet to change Nebraska law. Because of the publicity surrounding the case, Judge Cheuvront declared a mistrial during jury selection, accusing Bowen of inciting public furor over her case. "Ms. Bowen and her friends hoped to intimidate this court and interfere with the selection of a fair and impartial jury," he wrote in his July 12 decision.
Bowen's attorney, Wendy Murphy, says her client had nothing to do with the protest, which was organized by PAVE (Promoting Awareness, Victim Empowerment), a Chicago-based advocacy group for rape victims. "She supports the protestors and is glad they are there and signed the online petition, but that's it," said Murphy in an e-mail. But since Bowen has decided to take her language-ban appeal to the federal district court, she and her lawyer have begun soliciting support from PAVE and other national advocacy groups.
It's significant that this First Amendment challenge regarding the rights of witnesses has originated in a sexual-assault case. Sex crimes, due in part to their intensely personal nature, tap into a complicated set of cultural values and historical meaning; thus, a ban on sex-crime-related words carries a different weight from one on words like "murder" or "embezzlement." Michelle Anderson, an expert in sexual violence and the law, and the dean of the City University of New York Law School, notes that rulings like Cheuvront's reflect the way that the courts have traditionally viewed rape cases. "The notion that the word rape is so charged derives from an historical willingness to place a higher burden on rape victims who come forward," she says, pointing out that in the past, rape cases had required corroboration and evidence of the use of force, and instructions could be given to the jury to treat an alleged rape victim's testimony with special caution.
"It's a way of putting a thumb on the scale because often in acquaintance rape cases, the woman experiences the intercourse as rape and the man experiences it as sex," Anderson says of the language ban. "It's a way of denying the woman's ability to describe her experience as she lived it." To her, the fact that Bowen described her ordeal as simply "inside of me" was a problem because "it's so bland that it could describe what a dentist does with dentist tools to excavate a cavity." Murphy agrees: "Nobody in that courtroom was allowed to describe what happened as a crime."
The third sexual-assault trial has yet to be rescheduled, but in the meantime, Bowen hopes to eventually take her appeal from the federal district court to the U.S. Supreme Court and achieve a national standard for allowable language in the courts one that upholds a witness's right to free speech without treading on the right of the accused to a fair trial. As Murphy put it, "There should not be a discrepancy as to the fundamental right of a witness to testify truthfully in a court of law."