Word-banning judge declares mistrial in rape case[Nebraska]

AP ^ | 13 July 2007 | AP

[BGHater]

Before a jury was even seated, a judge declared a mistrial Thursday in a sex-assault case where he had barred the words "rape" and "victim," among others.

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.

A jury was in the process of being selected when Cheuvront declared a mistrial.

Safi is accused of raping Tory Bowen in 2004. He said they had consensual sex, but she said she was too drunk to agree to sex and that he knew it.

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.

Bowen, 24, was fighting the ban, arguing that it hurt her testimony because she had to pause and make sure her words wouldn't violate the ban. She said: "I want the freedom to be able to point [to Safi] in court and say, 'That man raped me.' "

The Associated Press usually does not identify accusers in sex-assault cases, but Bowen has allowed her name to be used publicly because of the issue over the judge's language restrictions.

In a written explanation of his ruling, Cheuvront said Bowen and her friends drummed up pretrial publicity that tainted potential jurors.

[BearCub]

Sounds like a Judge who is ready for a forced retirement.

Why? The jury is there to determine (a) whether they had sex and (b) whether is was consensual. They are not there to listen to anyone reach those conclusions for them. The terms 'rape' and 'rapist' should not be used to refer to a defendant or alleged acts until after he is convicted.

I haven't heard she was unconcious. They were drinking and she regrets what she did while drunk. That's no defense for drunk drivers. And hey - if he was drunk also then who raped whom?

[TheBattman]

Just another liberal judge defending one of his own...

The judge needs to be banned from the courthouse - permanently.

[monday]

“So, she admits to having sex with the guy, its just that she was too drunk to consent? It doesn’t sound as if she said “no” either.”

Sounds like she was too drunk to say anything. Do you think it’s acceptable to have sex with a woman who is incapacitated or passed out?

[MeanWestTexan]

I don’t think it is acceptable to have sex outside of marriage -— point being, what is “acceptable” is not the question.

[PAR35]

The judge can rule, that as a matter of law, there is insufficient evidence to convict the defendant. If he does it before the jury is seated, it’s appealable by the prosecution. If he does it at the end of the trial, the defendant walks.

Rather than have the courage to face the heat, the judge is trying to stack the deck in favor of the defense. If I was the prosecutor, I’d have filed a motion to recuse by now. Making the witnesses sign the agreements to not use certain words is way out of line.

I do agree that it sounds like a fairly weak he said/she said case.

[Sherman Logan]

Since it is agreed that sex took place, the only issue is whether it was with consent.

This case turns entirely on who tells the better story or is more sympathetic to the jury. Probably the woman. Although I think a reasonable person would generally conclude that when there is no evidence, only two conflicting stories, there is more or less by definition reasonable doubt as to which person is telling the truth.

If men have any sense, they will realize that this could happen on any one-night stand. Perhaps they should reconsider one-night stands.

But then most men have no sense when dealing with this area.

[MeanWestTexan]

“Making the witnesses sign the agreements to not use certain words is way out of line.”

I don’t know. I am repeatedly in court (seemingly once a year; comes with being in the oil business, I guess), and every case has restrictions about what we can and cannot say.

[agere_contra]

Do you think it’s acceptable to have sex with a woman who is incapacitated or passed out?

I don't think that that is acceptable behaviour:- but there's nothing about the woman being incapacitated or passed out in the article. Just her claim (after the fact) that she was too drunk to give asset.

Unless this is a case of drink-spiking, she voluntarily diminished her own free will with the use of alcohol. She made her decision at that point: it's too late for her to complain about it now.

[Talking_Mouse]

Sounds like the judge knows the case is B.S. case of “she changed her mind in the morning and thus it is rape.”

Then it should go to trial and let the jury of peers decide if it is really rape or B.S. IIRC the current Nebraska law is that if a person is to impaired by alcohol to make a coherent choice to have intercourse, subsequent intercourse is considered non-consenional, and therefore rape. The only way LAWS get changed is when people care enough to change them.

I totally agree with the judge. The case and charges are highly dubious. Think of the Duke “rape” case.

The jails are full of innocent men imprisoned for rape. We know this since retrospective DNA testing is releasing scores of meneach year.

Sorry, two totally different situations. In the Duke fiasco the female (since she is NOT a victim and the innocent young men were victims I will be using the words male and female) said she was raped and the males denied having sex with her. In this case both the male and female agreed that sex occurred, the question is weather said sex was consensual - in the eyes of the law, not in the eyes of you, me or the judge.

As I said before, if people disagree with the law, the law has to be changed. That is for "We the People" to do, not for activists judges to do in their courtrooms.

[Sloth]

The terms 'rape' and 'rapist' should not be used to refer to a defendant or alleged acts until after he is convicted.

That is utterly insane. You can't use the word 'rape' in a trial to determine if someone is guilty of 'rape'?

[jimt]

Do you think it’s acceptable to have sex with a woman who is incapacitated or passed out?

Define "incapacitated". One drink, two, four, what ?

If he's responsible while drunk (and he would be held so) why isn't she, hmmmm ?

[Juan Medén]

That’s the real point here. I don’t care how strong or weak the rape case is, when a judge starts controlling the vocabulary of the witnesses it is pretty evident that he is trying to control the outcome of the case. It’s like banning the words, “kill,” “murder,” “weapon” at a murder trial. It just doesn’t make sense. That is not a judge’s prerogative. Does he think the jury is incapable of detecting bs?

[Vinny]

I believe if you are intoxicated you legally cannot give consent.

[monday]

“I don’t think it is acceptable to have sex outside of marriage -— point being, what is “acceptable” is not the question.”

So what he did was unacceptable, it just wasn’t rape?

[untrained skeptic]

Does the inability to use the word rape really present them from presenting their case, or just prevent them from invoking an emotional response from the jury?

Rape is a horrible crime, and merely accusing someone of it makes people look at that person with disgust.

I don't think the Judge should have banned using those words, however I also think people should make rational rather than emotional decisions, but it seems rationality is getting rarer and rarer.

The case is based completely on her word that he should have known that she was too intoxicated to consent, even though she apparently did consent.

She apparently also consented to consuming huge amounts of alcohol.

The guy might not be the most moral guy on the planet, but he didn't force himself on her, which is what most people consider to be the definition of rape.

They are redefining rape to use the stigma of the word to their advantage. When the prosecution starts redefining words to get sway the jury, it the judge really that far out of bounds to prevent it?

[MeanWestTexan]

No, the question poised is irrelevant.

[ltc8k6]

You can say that he forced me to have sex, or he had sex with me against my will. Plenty of ways to say what you mean without the inflammatory term that might prejudice a jury.

A judge can dismiss the case right after the prosecution rests if he believes the prosecution didn’t show anything worthwhile.

Accusers do not deserve their day in court merely because they make a claim.

It’s defendants who have the right to a trial, not accusers or alleged victims.

My merely saying you robbed me would not mean I deserve to get you before a criminal jury, and neither does a woman’s claim that a person raped her.

[monday]

“but there’s nothing about the woman being incapacitated or passed out in the article. Just her claim (after the fact) that she was too drunk to give asset.”

Which by definition means she was either incapactitated of passed out. If she had been able to say yes, it doesn’t matter how much she had to drink, she would have been able to give assent.

“Unless this is a case of drink-spiking, she voluntarily diminished her own free will with the use of alcohol. She made her decision at that point: it’s too late for her to complain about it now.”

Unless a woman says yes, it is rape. The fact that she voluntarily put herself into a condition where she could not say no has no bearing. One is not allowed to take advantage of women who are helpless, regardless of who made them helpless.

If she said yes, and has since changed her mind, then I agree there is no rape. In this case she said she was too drunk to give assent, which I took to mean she was too drunk to say yes. If that is the case then she was raped.

[ltc8k6]

I’m going to start carrying a breathalyzer...

Up to your room?

Just a minute.

Here, now blow into this for me.

[ltc8k6]

“In this case she said she was too drunk to give assent, which I took to mean she was too drunk to say yes.”

Are you saying the her claim of being too drunk means she actually was too drunk?

Where is the evidence that she actually was too drunk. We can’t take her word and put a person away on it.