I had to read this story to believe that a judge would restrict an alleged victim from accurately describing her experience. Lancaster County District Judge Jeffre Cheuvront based his decision on a 1970s law*.
LINCOLN - For 13 excruciating hours, Tory Bowen testified in court about waking up with a man she didn't recall meeting. She said he was sexually assaulting her. Bowen, however, was barred from using terms like "rape" and "sexual assault" to describe her plight because a judge ruled they could be prejudicial to the defendant.
If the alleged victim isn't allowed to use labels such as "rape" or "sexual assault" then defendants and defense attorneys cannot be allowed to use labels such as "consent" or "mutual" to describe the situation or in questioning witnesses since that would be prejudicial to the alleged victim who has been barred from directly countering those claims.
The words "sex" and "we" and "they" should also be barred from descriptors in any questioning or testimony regarding the alleged sex crime or events which preceded those alleged crimes since they all imply consent and would prejudice a jury against the alleged victim.
Instead of saying that (or asking if) the defendant and the alleged victim had sex, the defense attorney should have to say that (or ask if) the defendant put his penis in the alleged victim's body. There's a clear difference between an alleged victim being cornered into saying, "Yes, we had sex" and saying, "He must have because when I came to his penis was in there." The first question asked by a defense attorney is designed specifically to mislead the jury -- a violation of the law.
There's also a clear difference between a defense attorney saying, "the fact that they had sex is not in dispute" and "the fact that he put his penis in her body is not in dispute." The first statement is absolutely prejudicial.
Instead of the defense attorney saying that (or asking if) they (the defendant and the alleged victim) left the bar together, the defense attorney would have to separately describe and/or question the actions of the two people from the time they interacted in the bar.
A defense attorney saying that they were shown leaving the bar together is definitely prejudicial since it falsely implies that equality in actions has been proven and removes the possibility that the alleged victim was guided out of the bar by someone intent on exploiting another person's intoxication or that she was followed outside.
The defense would have to show in detail what actions the alleged victim took and what words she said which demonstrate the victim's willing and legal participation -- in the entire interaction -- without saying anything prejudicial against the alleged victim or claiming that "she consented" since that is a conclusion rather than a specific action taken by a specific person at a specific time.
Just as the prosecution (through the alleged victim's testimony) is expected to show -- not tell -- that a sexual assault happened, the defense must show -- not tell -- that the charges cannot be proven beyond a reasonable doubt.
When fair trials are only fair from the the defendant's perspective they are only a mockery of true fairness.
Clarence Mock, the lawyer defending the man accused of raping Bowen, said certain terms can "inflame" a jury, leading them to rule on emotion rather than facts.
If this is the true concern then this attorney must also support the barring of any testimony or evidence that focuses on the good character of the defendant or the bad character of the alleged victim since that would lead the jury to rule on emotion rather than on the facts of the case.
Too many cases take the "Oh, he's such a nice man and nice men can't do what the evidence is indicating he did. If he did break the letter of the law, he couldn't have meant to do so."
Certain so-called inflammatory terms can definitely inform a jury about the facts. Emotion absolutely belongs in criminal cases when it is used to accurately capture events directly related to the alleged crime. Without emotion and descriptive words to communicate being mugged, the mugger is free to put forth the unchallenged lie that he was simply given a gift of the alleged victim's wallet. That opens the door to the giver's remorse defense. I doubt people who walk the streets want muggers to be able to easily paint themselves as the true victims.
A sentence like "I woke up to discover I was being sexually assaulted" describes that person's experience and is directly relevant to a criminal trial. What the defense is trying to paint is a scenario where the alleged victim was fine with what the defendant was doing. That illusion is broken when the person who "legally consented" wakes up and immediately thinks "What the ...? I'm being raped."
In this particular case what I find telling is the man's response of "You don't remember last night? You consented" since his word choice indicates that the man was thinking in legal terms about what to say if the woman regained consciousness before he was done. The phrasing also doesn't match what someone would say if they were truly shocked that an active partner in sex couldn't remember even meeting that person.
It's no surprise that the first trial under this ruling resulted in a hung jury. The full unprejudiced story wasn't allowed and unless something changes, it won't be allowed in the retrial. Maybe the next jury will be able to see beyond the prejudicial and one-sided restrictions, but maybe their prejudices will match the prejudice which is still allowed in this case.
* Nebraska Revised Statutes
Rule 403. Exclusion of relevant evidence; reasons.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Laws 1975, LB 279, 13