The problems in this Time article are all the more glaring since the article is focused on the argument by the judge, prosecution, defense attorney and alleged victim about the power of semantics to distort reality and to inflame those who hear certain words in conjunction with an alleged crime.
The story goes back to Oct. 30, 2004, when Tory Bowen, then a 21-year-old student at the University of Nebraska, met Pamir Safi, an Army reservist, at a downtown Lincoln bar. After sharing drinks, they left the bar together, went back to Safi's apartment and engaged in sexual intercourse. Bowen says she was too drunk — and, she believes, drugged — to consent to sex. Safi says their encounter was consensual.
Because the issue at stake was one of consent, not assault, the words that Bowen and Safi chose in court to describe the incident were particularly fraught.
This snippet of the Time article illustrates the classic mistakes people make when describing an alleged rape in a so-called unbiased way. The biggest goof here is the statement that the case has nothing to do with assault. On the contrary, the case has everything to do with assault. The only way to miss this is to accept the narrative of what happened provided by the defense attorney.
This narrative is a popular one and for many people it is as familiar as the story of Romeo and Juliet which gets invoked whenever anyone wants to soften statutory rape laws. Never mind that Romeo and Juliet is a work of fiction.
In this case the alleged assault comes through incapacitation. If you knock someone out or impair their reasoning skills and motor skills using a chemical substance, that is a form of assault even if those who witness the initial assault (victim sipping a drink spiked with drugs or high octane booze) don't recognize the assault for what it is.
Many rapists choose this method of assault because it is covert. They can hide in plain sight and they can count on many non-rapists to call their victims liars or delusional. Most of the time when their victims report their rapes, they will never be charged and when they are charged most of the time they won't be convicted or they will be convicted of more minor crimes.
Very rarely are these types of rapists caught in the act of spiking a drink.
The Time article sets forth that these items as undisputed: They met. They shared drinks. They left the bar together. They went to his apartment. They engaged in sexual intercourse.
In light of the allegations, these items are clearly misleading because they make mutuality a done deal from the beginning until the sexual contact ended. There is no mention that she vomitted in the man's car which indicates she was violently ill in the midst of all this "mutuality."
But that fact disrupts the flow of the "they" narrative. Once that happens we can begin to wonder if he pulled an ill and semi-conscious women from his car into his apartment or if he lifted an unconscous woman from his car, carried her inside, and used her like a sex toy until she inconveniently came to and started protesting.
If people pay attention to the allegations of this case they will see that the alleged victim isn't claiming that she was given drugs so she would consent to sex. She is claiming that she believes she was drugged so she couldn't provide non-consent and so she couldn't stop him from using her body -- in other words she couldn't stop him from raping her. Those two claims are diametrically different in ways that are not merely semantic.
This alleged victim is not looking to have her consent nullified, she wants her absolute non-consent recognized.
The defense attorney knows this which is why he doesn't want her to be able to blast any holes in the narrative he is supporting.
Once that word ["rape"] is uttered [by the alleged victim], [defense attorney] Mock says, "the skunk is in the jury box and it's hard to get the smell out." (words in square brackets added by me for emphasis)
Yes, it is hard to get the smell out once the alleged victim makes it clear that she isn't trying to revoke consent she gave while drunk. But if the stink is caused by the truth of what the alleged victim experienced then should the raw, ugly truth in the plainest language be banned from all criminal trials?
If this ruling holds for alleged rape victims, then it must be reflected in all trials involving all sorts of crimes. Any words by crime victims that imply criminal behavior must be banned.
Is the truth of someone's experience expressed in the rawest form unfairly prejudicial? Or is it fairly prejudicial? The Nebraska law the judge is using to back his ruling says that "evidence may be excluded if its probative value is substantially outweighed" by the prejudicial nature of the evidence.The key word here is not "prejudicial" it is "outweighed."
A jury hearing that the alleged victim woke up and instantly knew she was being raped is an important factor in determining whether there is proof of guilt beyond a reasonable doubt. The jury knows this is her personal assessment and they deserve to hear it in it's rawest form.
In essence the very allegation at it's most specific has been banned while the defense's counter-narrative is allowed to permeate the whole case as if it were already proven. The defense attorney has already agreed that words have power to change people's understanding of what really happened so his motive and agenda are clear. He fought a ban on words that implied mutuality so any claims that he wants no prejudicial language allowed in the trial is a false claim.