By Jennifer R. Cochran*
As published in Sexual Assault Report, July/August 2007
In a case in which the defendant Pamir Safi was charged with raping the victim while she was unconscious, a Lancaster County [Nebraska] District Court Judge Jeffrey Cheuvront ordered the victim not to use the terms rape, sexual assault, attack, force, or victim in her trial testimony, requiring her instead to describe the acts as “sex” and “intercourse.” The judge also forbade used of the phrase “rape kit” and ordered witnesses to say “sexual examination kit” to describe the process conducted on the victim after the incident. The “sexual assault nurse examiner” was to be described as a “sexual examiner”. While it is not uncommon for a judge to control the language and evidence used by state actors, such as prosecutors and police, an order against a private person raises constitutional concerns worthy of analysis but not addressed in this article. The prosecution’s motion to exclude the terms sex and intercourse was denied by the judge who exclaimed, “What else would we call it?” (Word 'Rape' Banned in Court, A Nebraska Judge has Banned Words like 'Rape' and 'Sexual Assault' During a Sexual Assault Trial, posted June 18, 2007 online at www.abcnews.go.com/TheLaw/story?id=3302334&page=1 (last visited 7/5/07)). Editor’s comment: The ABC News article cited notes that the first trial against defendant Pamir Safi resulted in a hung jury in November of 2006, and that the defendant’s case rescheduled for July, 2007.
The judge’s rulings and comments were inappropriate and prejudicial to the prosecution. By forbidding the victim to use language usually associated with nonconsensual forced, injurious sex, the victim is effectively compelled to describe the act as not harmful. A study of the meanings of both sets of terms, those endorsed and those forbidden, reveals that the latter set of terms are more appropriate because victims should be permitted to characterize the activity in their own words, rather than using terms required by the court that, in the victim’s mind, do not describe the events accurately.
Definitions derived from dictionary sources and from the work of a number of social psychologists plainly illustrate that the words “rape” and “sexual assault” connote very different ideas than “sex” and “intercourse.” According to the dictionary, the word “sex” means “sexually motivated phenomena or behavior” or “sexual intercourse”. (Merriam Webster’s Online Dictionary http://www.m-w.com/dictionary/sex). “Sexual Intercourse” is defined as “penetration of the vagina by the penis”. (Merriam Webster’s Online Dictionary http://www.m-w.com/dictionary/sexual intercourse). This entry then refers readers to the definition of the word “coitus” which is defined as “physical union of male and female genitalia accompanied by rhythmic movements.” (Merriam Webster’s Online Dictionary http://www.m-w.com/dictionary/coitus).
Using such terminology to describe rape, the legal definition of which is penetration in a manner that is both forcible and nonconsensual, is inappropriate and illogical because the judge required that these erotic terms be used even though they portray an unconscious victim as a willing participant in sexual activity. Requiring the use of such terminology to describe the events in this case also forces the victim to describe what occurred in a way that is different from how she experienced and understood it. In this instance, the victim was unconscious. By analogy to the crime of theft, requiring a rape victim not to use the words “rape” or “sexual assault” is like ordering a robbery victim to testify that she gave her money voluntarily to the criminal rather than that he took it. (Janet Bavelas & Linda Coates, Is it sex or assault: Erotic versus violent language in sexual assault trial judgment, Journal of Social Distress and the Homeless, 10, 29-40 (Nov. 2001)).
The implications of these dictionary definitions are supported by the work of a number of social psychologists. Research on the impact of language in sexual assault cases has concluded that the use of terms like sex and intercourse depict a mutually consensual and pleasurable scene whereas words like rape, sexual assault, and forced penetration depict a radically different scene of violence and harm. (Bavelas & Coates, 2001; Gerd Bohner, Writing about rape: Use of the passive voice and other distancing text features as an expression of perceived responsibility of the victim, British Journal of Social Psychology, 40, 515-529 (2001)). The use of terms like sex and intercourse instead of rape and sexual assault has a number of important influences in a criminal trial.
First, since neither sex nor intercourse is criminal, the use of these terms erroneously implies consent because a person would be less inclined to object to non-criminal conduct than to criminal conduct. The implication of consent inherent in the use of these terms portrays even an unconscious victim as a willing participant in the act and falsely suggests she can somehow grant permission to the perpetrator to engage in “sex” with her unconscious body. Second, although an unconscious person cannot consent to anything, words like sex and intercourse imply that the actions are not harmful to the unconscious person. (Bavelas & Coates, 2001). Third, by implying that the action was not harmful, the defendant's culpability is mitigated, obscuring the violent or forcible nature of the crime. (Bohner, 2001). Finally, describing the acts in terms associated with pleasure, affection, and daily life makes it more difficult for jurors to conceptualize the conduct as unwanted, forced and criminal. Simply put, jurors can hardly be expected to conclude that conduct is criminal when the victim herself is apparently willingly using terminology that suggests pleasure. This point cannot be overstated. Jurors who observe a victim testify under oath may well find it evidence of consent that a victim failed to use words like rape and sexual assault during trial. Disallowing use of terms that express non-consent inhibits the jury’s truth-finding function and effectively requires the victim to commit perjury during her testimony. This problem cannot be remedied because the victim is not free to explain to the jury that she is using certain language solely because the judge ordered her to do so.
The court’s order regarding language essentially allows the jury to view the unconscious victim as a legal and moral cause of her own harm rather than a receiver of violence. By using language that assigns responsibility to the unconscious victim, the accused is distanced from the act and the criminal conduct is perceived as less harmful because responsibility for the behavior is shared between the criminal and the victim. (Bohner, 2001). All of these linguistic influences of the limited words that are permitted, compared with the connotations of the words that are prohibited, make it more likely that the fact finder will not fairly comprehend the nature of the allegations. This may lead to an unjust verdict, and did, in fact, result in a hung jury in the first trial.
Bavales and Coates (2001) also agree that allowing words like sex and intercourse and barring terms like rape and sexual assault means that the victim will be forbidden to tell what occurred in a way that the victim sees as honest, noting, “In the law and in the [victim’s] experience, sexual assault is unilateral. An assault is accomplished by physical force, threat, or abuse of power. In an assault, one person uses the body of another, who thereby loses control over the most intimate access to his or her body. One person imposes his or her will and body upon another and violates that person’s right to control access to his or her body.” In short, the subjective and highly personal experience of the victim must be conveyed to the jury in a manner unrestricted by contrived rulings on language.
Any concerns about the victim‘s choice of language can and should be addressed by the judge during jury instructions. This is not uncommon as judges routinely instruct jurors that words like “indictment” and “arrest” should not be considered evidence of the defendant’s guilt. Thus, a judge concerned about words like “rape” and “sexual assault” could advise the jury as follows: “A witness’s use of certain words (such as “rape” and “sexual assault”) is not evidence. You the jury, alone, must determine whether a crime occurred”. Likewise, the defense can address their concerns during closing argument. E.g., “members of the jury, you should be skeptical of the witness’s credibility because she chose to use words like “rape” and “sexual assault”.
In summary, all words have connotations or penumbrae that provide meaning. This includes words like “sex” and “intercourse,” as well as “rape” and “sexual assault.” Permitting the use of some words and prohibiting others necessarily slants a victim’s testimony. The control over possible bias should come from transparency and disclosure of its potential presence, not from requiring and prohibiting specific words without even informing the jury of what has been done. Editor’s comment: Forbidding a victim from relating her experience as she experienced it will further traumatize, revictimize and humiliate her, even in the unlikely event that the defendant is convicted. It is highly non-therapeutic and violates the state’s victims’ rights amendment.
*Jennifer Cochran is a student at New England School of Law and a 2008 Juris Doctor candidate