Tuesday, October 21, 2008

US Supreme Court refuses to hear free speech issue in Nebraska rape case

The US Supreme Court has refused to hear a rape case in which the defendant Pamir Safi was charged with raping the victim while she was unconscious. At trial, 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 use 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 free speech concerns which would be addressed in the appeal before the US Supreme Court filed by the victim's attorney, Wendy Murphy.

I have followed this case for over a year along with Wendy Murphy, a professor of mine at New England Law. I provided research assistance for the federal appeal and even published an article analyzing the issue in the Sexual Assault Report back in August of 2007. You can read the article here.

The case is an interesting one because it involves the victim's right to provide testimony in her own words. The judge banned the use of the word rape, sexual assault, victim, force and other terms that are commonly used when a victim, or rather the complaining witness, testifies in a sexual assault case. Attorney Murphy argues in an appeal that the gag order violates Ms. Bowen's free speech rights. I agree. Although the defense often argues that the term rape or sexual assault is a conclusory term and thus prejudicial, the defense is likewise not prevented from saying that it was consensual sex, also a conclusion and thus prejudicial to the prosecutor's case. The scales are therefore tipped in the defendant's favor because at trial, the defendant's so called constitutional rights are valued more than the complaining witness's free speech constitutional rights. The end result? The complaining witness's credibility is undermined every time she pauses to reflect on terminology that will not violate the order and if she slips, she is chastised or even charged with attempt.

The ultimate issue is whether the complaining witness (victim) unilaterally consented. In this case, Tory Bowen was unconscious. She woke up with the defendant raping her. Whoops. I meant she woke up to find that the defendant was forcing his penis... to discover that the defendant was... was... was.. pushing his penis painfully, hurtfully, etc. See how difficult that it is just to write? It starts to sound like consensual sex doesn't it? Now imagine using such language in front of the jury who is unaware of the gag order. Most likely they will find the complaining witness's stammering or choice of language is incredible. That's why it is critical that she testify using her own words. Likewise, if the defendant chooses to testify (not going to happen), then his story must be told in his own words. Let the jury determine who is telling the truth and determine whether if there was consent that is whether it was rape or sexual intercourse.

Read today's article on the case, Court won't consider Neb. `rape' testimony issue.