This is an interesting case:
Before a jury was even seated, a judge declared a mistrial in a sex-assault case where he had barred the words “rape” and “victim.”
Judge Jeffre Cheuvront of Lancaster County District Court said protests and other publicity surrounding the rape case against Pamir Safi, 33, would have made it too difficult for jurors to ignore everything they heard before the trial, which had been expected to begin next week.
Cheuvront barred attorneys and witnesses from using words including “rape,” “victim,” “assailant” and “sexual-assault kit,” and ordered witnesses to sign papers saying they wouldn’t use the words. Words such as “sex” and “intercourse” were allowed.
State law allows judges to bar words or phrases that could prejudice or mislead a jury.
I am unsure what my position is on this issue. On one hand, I understand the judge’s ruling. The accuser, Tory Bowen, held protests calling Safi a rapist. She spread this accusation across the Web in an effort to gain more support. Since it is a local trial, such protests would not go unnoticed. Such an accusation would definitely taint the jury pool. It also amounts to character defamation as Safi has not actually been convicted of any rape crime. It would make sense then, to bar the use of accusatory words like “victim” and “assailant” or any term that implies or states a rape did occur. The use of such terms forces the defendant to prove his innocence as opposed to the prosecution proving his guilt. And considering that a defendant is not allowed to call the accused a “liar,” it seems only fair to the non-accusatory ban across the board. While it may be difficult to describe the act without stating “rape,” it is hardly impossible. One could use the same language often used in cases of child molestation.
On the other hand, the judge’s ruling flies in the face of how trials are typically conducted. Certainly there are instances in which a person must state “alleged” before saying “murderer” or “thief.” However, no one is barred from stating “She tried to rob me with a knife” or “He punched me in the face.” If the act is that of sexual assault, then the accuser should be allowed to use the word “rape.” Perhaps it should not extend to witnesses or to experts, but to bar the accuser from stating her recollection of the events sounds odd. Some of the words banned make no sense. Why ban “sexual-assault kit?” There is no other term for a rape-kit. It is what it is. How would this apply to other crimes? Would a person be barred from stating “gun” and instead have to replace it with ” a hand-held metal unit that holds and ignites gunpowder that projects tiny metal fragments designed to hurt and kill?”
This case demonstrates the need for protecting the identity of defendants in rape cases. Had that been in place, then Bowen could have been held in contempt for stating Safi’s name in public. That would have prevented her from contaminating the jury pool by essentially slandering Safi’s name. The judge would then have had no reason to bar all the words, though the ban of accusatory words like “victim” and “assailant” technically make sense.