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Friday, June 29, 2007

Rape Victim Can't Say 'Rape' in Courtroom

Readers of my posts may remember the story of Archie Simonson. Archie was a Dane County Circuit Court Judge here in Madison, WI, who'd made a very, very bad decision based on very, very bad reasoning. Things didn't work out so well for Archie Simonson.


Permissive age or not, it is unwise to be too understanding of rapists even in a relatively liberal university town like Madison, Wis. Judge Archie Simonson learned that lesson last week while handily losing his $36,000-a-year seat on the Dane County (Madison) bench in the first judicial-recall election held in the U S in three decades.

Simonson, 52, a plain-spoken jurist with some mod ideas in other areas of law, became the feminist equivalent of Anita Bryant last May. That was when he announced that "whether women like it or not, they are sex objects" as he set free on a probated sentence a 15-year-old youth who had raped a 16-year-old coed in a high school stairwell. Simonson explained the soft sentence as a message to women to "stop teasing." It was time, he added, for "a restoration of modesty in dress and elimination from the community of sexual-gratification businesses."

This was way back in 1977 and Simonson's idiotic sentence -- as well as the reasoning behind it -- became a national news story. The election may have been held here, but the calls for Simonson's head came from across the nation.

How things have changed. Another judge in another state is treating a rape victim just as egregiously and you know where I first heard of the story from? As It Happens, a Canadian radio show from the CBC. Clearly, this isn't as big a news story in the US as Simonson's was back in the 70s.

Not that this one is any less stupid.

Lincoln Journal Star (Lincoln, NB):

Tory Bowen says she knows what happened to her on the morning of Oct. 31, 2004.

But she won't be able tell her story to jurors -- at least not in a way that's truthful to her, she says -- because a judge's order bars witnesses from using words like "rape" and "sexual assault" in the trial of Pamir Safi, who is accused of sexually assaulting Bowen.

"In my mind, what happened to me was rape," said Bowen, 24. "I want the freedom to be able to point (to Safi) in court and say, 'That man raped me.'"

Last month, Lancaster County District Judge Jeffre Cheuvront denied a motion by prosecutors that would have prohibited Safi's attorneys from using words like "sex" and "intercourse" when describing the encounter between Safi and Bowen.

In other words, on the stand, Safi will be able to claim that he and his alleged victim had 'sex' -- implying consent -- and Bowen will be forced to agree. In fact, Bowen and prosecutors won't be able to use any words that imply rape -- it's not sexual assault or assault, it wasn't forced or without consent, and even the actual titles of people she spoke to after the event -- a Sexual Assault Nurse Examiner -- can only be refered to without implying rape. In the case of the findings of the Sexual Assault Nurse Examiner, Bowen can only refer to the 'SANE nurse.'

To make things worse, the jury knows nothing at all about the gag order. Not only won't they know why the victim is dancing around the word 'rape,' but they'll have no damned idea what the hell a SANE nurse even is. To the jury, it'll sound like Bowen thinks she spoke to the one nurse she thought wasn't crazy.

Cheuvront's ruling is designed to keep prejudicial language out of the trial. Rape, he and Safi's lawyers argue, is a legal term. Once Safi's convicted, then it's rape. Until then, it's... I don't know, a date?

"Jurors will go back to their room and say, 'She didn't feel it was harmful. After all, she called it sex,' says Wendy Murphy, a professor of law at the New England School of Law in Boston, "It's like saying to a robbery victim, 'You can't say you were robbed, because that's a legal judgement. You can only say you gave your stuff to the defendant. That's absurd."

And Cheuvront's ruling is absurd in other ways as well, according to Murphy. She spoke with Slate's Dahlia Lithwick, who had this to say:

Do a Lexis search on the influence of inflammatory language on juror perceptions. Try to find some social science data on the effect of loaded courtroom words on conviction rates. Not much out there, notes Murphy. That's one of the things that makes the Nebraska case so maddening. If judges are going to take it upon themselves to issue blanket orders that would have witnesses testifying that black is white, one might hope that they are trying to remedy some well-documented evidentiary problem.

So Cheuvront is operating on a pretty weak hypothesis, without any scientific evidence to back it up, and all to remedy a problem that there's no reason to believe exists. Apparently, logic isn't all that big a deal in Nebraska courts.

Why isn't this 'through the looking glass' reasoning on the part of a judge as big a story now as it was in 1977? They can't say it's not newsworthy, not after weeks and weeks of following the non-story that was Paris Hilton's incarceration. Compared to a sullen heiress breaking probation, this is positively groundbreaking legal news.

And it's not like Bowen is a nobody either -- her boss is Nebraska Sen. Chuck Hagel and she's an activist in the state Republican party. Besides, what notoriety did Archie Simonson's unnamed 16 year old student have? Hell, who was Scott and Lacie Peterson? We spent more than a damned year on those guys.

What few stories I've seen on this case have missed what I believe is the big point -- why the hell does everyone on Earth know who Paris Hilton is, but almost no one knows who Tory Bowen, Pamir Safi, and Lancaster County District Judge Jeffre Cheuvront are? Why does a news industry driven by 24/7 cable news channels have plenty of those twenty-four hours over seven days for celebrity crap that doesn't even remotely matter and none for a case like this?

I'm not expecting Wolf Blitzer or John Gibson to read this blog and defend themselves here. But guys, if you do, you can't say 'Paris Hilton,' 'regional interest,' or 'news' in your defense.

Good luck with that.


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jonathan said...

**disclaimer!! Do not think for one second that I oppose a man going to jail for violating a woman in the terms of rape. That, to me, is one of the most degrading and dispicable acts that a person could execute**

It seems to me that the judge is trying to prevent a man from going to jail for having a drunken one night stand with a drunken girl. Men in the military are charged with this crime all the time: a 21 year old girl at a bar or a party talks to someone all night, goes home with them, things start getting heavy and hot, and she just doesn't say no. She doesn't say yes, but she gives no resistance and no reason to think that she doesn't consent. Upon waking up, she realizes a little more coherently exactly what happened and feels embarrased/humiliated/violated. What's truly sad is that the court system provides no protection for men in this circumstance. All a woman has to do is provide evidence that the two had sex, and then file charges saying that she didn't want to. This sort of "after-the-fact" rape case is seeming to become more and more frequent as more and more women surpass their alcohol limits and go home with men they just met.

Should men start carrying breathalyzers to determine whether a woman is legally drunk? Should men ignore an inebriated woman's forward comings-on and just pretend like it doesn't happen? Or should men take the same course as women and, when a woman does come on to them aggressively, file sexual harrassment charges? I mean, that would imply equality between men and women, right? A woman is capable of making her own decisions, and intoxication is not, in my logic, a valid excuse for bad, or non-existant, decision making. If you are that devoid of logic that you can't make appropriate decisions when you are drunk, then you shouldn't be drinking. Alcohol influences your reaction time and your mood, but logic and reason are still present. Liquor and booze should not be an excuse for inappropriate behavior, and since it seems that this has become the precedent, maybe there should be drunk in public charges for the women who are too inebriated in bars to say "no" to men they just met.

Again, I don't condone rape or sexual assault or one night stands. This type of behavior is detrimental to the good order and peace of our society and communities and puts the court system in a particularly bad position. The solution, however, lies with the people who CHOOSE to partake in this lifestyle, and the change has to happen with them, not the law.

Wisco said...

You say you don't condone rape, then you condone rape.

The judge's job isn't 'to prevent a man from going to jail for having a drunken one night stand with a drunken girl.' If that's his motive, then he's already tried the case in his head. There's a word for that, prejudice. It ain't so legal.

The myth that women 'change their mind' and cry rape is as old as rape itself. I didn't include it in the post, but the radio show I linked to said she'd probably been drugged. The next morning, she woke up with puke in her hair and the first thing the guy said to her was 'you consented.' Call me weird, but that's never been the absolute first thing I've ever said in the morning to any woman I've slept with.

Besides, your argument is pretty much screwed by the comparison to robbery -- should someone be forced in court to say they gave someone their stuff, just because the word 'robbery' is a legal term?

The ruling is insane and anyone who thinks it's wise really needs to reevalute their attitudes toward women before they wind up in court themselves in front of a much, much less stupid judge.

jonathan said...

The view that a woman might change her mind after the fact may be old as dirt, but that doesn't make it untrue. I wasn't agreeing with the judge's ruling, simply trying to give my input on something that is related to the story.

You say that it sounds like she was drugged, and if that's the truth, then I certainly hope that he goes to jail and never comes back. To date, I haven't heard of any evidence proving this, and drugs leave evidence of their presence in the human body.

Again, I DON'T condone rape. The point I tried to get across was pretty blatant toward the end of the post: "The solution, however, lies with the people who CHOOSE to partake in this lifestyle, and the change has to happen with them, not the law." When you put yourself in those situations, you are increasing your chances of being hurt, drugged, molested, raped, killed, kidnapped, robbed, mugged, or a thousand other things that happen on a daily basis all over America. Whether or not she knew these risks, she accepted them and continued to drink. THIS IS NOT SAYING THAT I THINK SHE DESERVED WHAT HAPPENED, NOR AM I SAYING THAT IT IS RIGHT OR JUSTIFIABLE. I am simply stating that she put herself in more risk of being violated in some way. Which leads, again, to the point of the last comment I made: Don't put yourself in those situations and you don't risk things like that happening. The lifestyle is risky and dangerous and these types of cases are going to increase as people continue to behave this way. My suggestion is to stop this behavior. I don't go out and drink. If I want to drink, I do it with people I know and trust in a place that I am very familiar with because I don't want to be (insert crime here). If that's how people want to live then that's their right, but they accept the risks when they do so, and will have to deal with the courts and the laws and the police if and when such cases arise.

again, I DO NOT nor will I EVER condone rape, molestation, burglary, frivolous legal cases, or any other of, as I said before, a thousand things that happen across America every day to people who partake in this lifestyle as well as to people who don't. My goal was to get someone, even just one person, to understand that by putting yourself at risk, you increase your chances of something happening to you.

Wisco said...

'Lifestyle' my ass. What 'lifestyle' are we talking about here? The one where friends stop off for a drink after work? That 'lifestyle?'

The fact is that she could've walked into a nudie bar naked and, if she was raped, then that'd be illegal. Period. It's not some situational thing where it's not illegal if she 'was asking for it.' And 'asking for it' doesn't fucking include drinking, for chrissake.

The crime is always the fault of the criminal. This 'blame the victim' stuff is bullshit.

jonathan said...

It's apparent that you know how to read and write, wisco, but I think your comprehension skills are lacking: for the third time now, "THIS IS NOT SAYING THAT I THINK SHE DESERVED WHAT HAPPENED, NOR AM I SAYING THAT IT IS RIGHT OR JUSTIFIABLE."

Now, I don't speak "fucking moron", so unfortunately I no longer think I can put my message in terms you might be able to understand. But for the vast majority of people who do read this, I hope my message is clear as crystal.

When a person engages in behavior that modifies their judgement and reaction time, they have put themselves in a position to be taken advantage of. If you refrain from this behavior, the chances of this happening to you decreases. Particular characteristics of this lifestyle might be, say, drinking so much that you're too drunk to legally consent to sex, or, maybe, going home with a male/female that you don't know. It is everyone's right to behave this way if they so please, but it is my suggestion that people refrain from this lifestyle.

To wisco: please show me exactly where I said that she deserved what she got, or that she was asking for it. This poor woman feels violated and I am in no way pointing my finger at her. I am saying nothing about the past, nothing about any person in particular, and I am not passing any judgement or saying anything negative about anybody at all. I am simply saying that if you get trashed and go home with someone you don't know, your chances of being taken advantage of in your drunken state increase exponentially, and by refraining from that behavior, the inverse is true. Going out to a bar after work and having a few drinks with friends rarely constitutes getting so trashed to the point of incoherency. If that is unclear in any way shape or form, please let me know how I can break it down a little more for you.

To anyone else who may have read this: I apologize to those who may think that I support rapists, molestors, criminals, or any other generally unethical person. I stated clearly, three times now, that I don't. We all have our flaws, and I am an opinionated person who truly believes that by not exceeding my alcohol limits and by not putting myself out to be taken advantage of, I have a much better chance of avoiding the type of situation that this violated young lady has been put in.

Matt Hurton said...

I don't know how truthful the part about her not being able to say anything whatsoever that insinuates it was not consensual is, but I agree with the part about not saying rape. The alleged victim's perception of rape and that of the jury can be and usually are very different. Innocent until proven guilty still applies, even in a rape case, and if the person simply says rape instead of describing what happened, it is unfair to the defense as they cannot defend if the victim does not explain the situation.

Anonymous said...

I knew the victim in the Simonson case. That's what made his remark all the more ridiculous.

Anonymous said...

Do you have any idea how low the national and state by state rape convictions are?

I assure you, more guys are getting away with raping girls than girls are tossing fake rape accusations.