Judge says 'sexual assault' can be in testimony, but not 'rape'
Posted: Wednesday, October 10, 2007
LINCOLN (AP) -- A judge who barred words including "rape" in a trial has clarified that the alleged victim can use what the judge says is an "equally descriptive term": sexual assault.
The clarification from Lancaster County District Judge Jeffre Cheuvront came after a federal judge dismissed a lawsuit against Cheuvront by the alleged victim but expressed concerns over the language ban.
Tory Bowen, 24, said in the September complaint that Cheuvront violated her free speech rights by barring words including "rape," "victim" and "assailant" from the trial of Pamir Safi.
Safi, 34, was charged with first-degree sexual assault stemming from an encounter between Bowen and Safi at his apartment three years ago. Safi says he and Bowen had consensual sex. Bowen, a former student at the University of Nebraska-Lincoln who lives in Washington, D.C., says she was too intoxicated to give consent and that Safi knew it.
In the new order filed by Cheuvront, he doesn't back off his earlier order that "rape" should be barred from the trial.
"To many people, the connotation of the term 'rape' involves a vicious and violent sexual assault," Cheuvront says in the Sept. 27 order. "Although the defendant is charged with first-degree sexual assault, this is a case based solely on consent or the lack thereof. There is no evidence of, or claim by the state, that any force ... or threat of force, was involved."
In his original language order, Cheuvront did not explicitly bar the use of the term "sexual assault." But the terms "sexual assault kit" and "sexual examination kit" were barred in the first trial and remain so after the new order.
However, the judge concludes his order by clarifying that "sexual assault" can be uttered.
"Because of the nature of this particular case, this court concludes that the use of the possible inflammatory term 'rape' is unduly prejudicial and unnecessary, particularly when the equally descriptive term of 'sexual assault' ... could be used."
Though he eventually threw out Bowen's lawsuit against Cheuvront, U.S. District Judge Richard Kopf has cast a wary eye on the language ban.
"There is ... something profoundly disturbing about a judge telling a citizen that she cannot say she was raped when testifying as a victim in a criminal case, particularly when the victim is presumably trying to do nothing more than describe what happened to her," Kopf said in an order issued last month.
A trial was planned this summer, but Cheuvront declared a mistrial before it began. Pretrial publicity he mostly blamed on Bowen made it too difficult, he said at the time, to construct an impartial jury.
Lancaster County Attorney Gary Lacey said Tuesday there will be another trial, but neither a date nor a location has been set.
The clarification from Lancaster County District Judge Jeffre Cheuvront came after a federal judge dismissed a lawsuit against Cheuvront by the alleged victim but expressed concerns over the language ban.
Tory Bowen, 24, said in the September complaint that Cheuvront violated her free speech rights by barring words including "rape," "victim" and "assailant" from the trial of Pamir Safi.
Safi, 34, was charged with first-degree sexual assault stemming from an encounter between Bowen and Safi at his apartment three years ago. Safi says he and Bowen had consensual sex. Bowen, a former student at the University of Nebraska-Lincoln who lives in Washington, D.C., says she was too intoxicated to give consent and that Safi knew it.
In the new order filed by Cheuvront, he doesn't back off his earlier order that "rape" should be barred from the trial.
"To many people, the connotation of the term 'rape' involves a vicious and violent sexual assault," Cheuvront says in the Sept. 27 order. "Although the defendant is charged with first-degree sexual assault, this is a case based solely on consent or the lack thereof. There is no evidence of, or claim by the state, that any force ... or threat of force, was involved."
In his original language order, Cheuvront did not explicitly bar the use of the term "sexual assault." But the terms "sexual assault kit" and "sexual examination kit" were barred in the first trial and remain so after the new order.
However, the judge concludes his order by clarifying that "sexual assault" can be uttered.
"Because of the nature of this particular case, this court concludes that the use of the possible inflammatory term 'rape' is unduly prejudicial and unnecessary, particularly when the equally descriptive term of 'sexual assault' ... could be used."
Though he eventually threw out Bowen's lawsuit against Cheuvront, U.S. District Judge Richard Kopf has cast a wary eye on the language ban.
"There is ... something profoundly disturbing about a judge telling a citizen that she cannot say she was raped when testifying as a victim in a criminal case, particularly when the victim is presumably trying to do nothing more than describe what happened to her," Kopf said in an order issued last month.
A trial was planned this summer, but Cheuvront declared a mistrial before it began. Pretrial publicity he mostly blamed on Bowen made it too difficult, he said at the time, to construct an impartial jury.
Lancaster County Attorney Gary Lacey said Tuesday there will be another trial, but neither a date nor a location has been set.
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