Hear No Evil, Know No Evil

I saw “Inherit the Wind” last night. There’s a scene during the trial in which the judge bans virtually all of the defense’s witnesses on the grounds that they — scientists and experts on evolution — are irrelevant.

I couldn’t help but think of that scene reading Dahlia Lithwick’s most recent article today. Lithwick reports on a Nebraska state judge who is presiding over a rape trial and who granted a defense motion to bar the attorneys from saying the words “rape,” “rape kit,” “victim,” “sexual assault,” or “sexual assault kit.” The prosecution responded by seeking to have the words “sex” and “intercourse” banned, as those words seem to suggest consent in the same way as the use of the word “victim” connotes lack of consent. The judge denied the prosecution’s motion, noting that without those words, there’d be nothing left to describe the alleged rape. And the jury has been kept in the dark the whole time – they don’t know that the attorneys have been prohibited from using these words.

The woman pressing charges, of course, hasn’t taken kindly to this. But Nebraska state law gives the judge broad discretion:

Bowen [the alleged victim] testified for 13 hours at Safi’s first trial last October [now headed for a retrial after a hung jury], all without using the words rape or sexual assault. She claims, not unreasonably, 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,” Bowen told the Omaha World-Herald. “They know the difference between sex and rape.”

Nebraska law offers judges broad discretion to ban evidence or language that present the danger of “unfair prejudice, confusion of the issues or misleading the jury.” And it’s not unheard-of for judges to keep certain words out of a courtroom. Words like victim have been increasingly kept out of trials, since they tend to imply that a crime was committed. And as Safi’s lawyer, Clarence Mock, explains, the word rape is just as loaded. “It’s a legal conclusion for a witness to say, ‘I was raped’ or ‘sexually assaulted.’ … That’s for a jury to decide.” His concern is that the word rape so inflames jurors that they decide a case emotionally and not rationally.

So both sides are left with the word “sex” to describe what happened. Which is strange in itself. What’s even stranger, as Lithwick points out, is that this phenomenon of banning loaded words seems to be confined to rape trials. No one is banning the use of the words “assault” or “gun” from other criminal trials. Lithwick’s not pleased:

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?

I’m fascinated by this issue. I can understand a defense attorney’s desire to do whatever she can to ensure a fair trial for her client (including not referring to the alleged victim as a victim). But I also see how this is frustrating for crime victims and maybe (at least at this extreme) even for the search for truth — supposedly the underlying motive of a trial. The issue is particularly complicated in rape trials, which have become increasingly fraught as high profile charges rise. Still, it seems that taking the issue to the absurd, which this case is teetering on the edge of, does nothing but confuse the jury and challenge the attorneys to figure out how many different ways they can say “sex,” using only that one word.