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Jun 21 2007

Nebraska judge lacks clue re: Truth

Delusional Nebraska judge Jeffre Cheuvront has declared sex to be a synonym for rape. That’s right! In 2007, in an American court of law, a rape is not legally distinguishable from a peck on the cheek. Defense attorneys for accused rapist Pamir Safi won a motion to have the word rape banned from the courtroom on the grounds that it inflames overwrought, anti-rapist responses in jurors. Also banned are sexual assault, victim, assailant, and sexual assault kit. Says Dahlia Lithwick, writing in Slate:

[P]rosecutors upped the ante last month by seeking to have words like sex and intercourse barred from the courtroom as well. The judge denied that motion, evidently on the theory that there would be no words left to describe the sex act at all. The result is that the defense and the prosecution are both left to use the same word—sex—to describe either forcible sexual assault, or benign consensual intercourse. As for the jurors, they’ll just have to read the witnesses’ eyebrows to sort out the difference.

Lithwick points out that using the word sex instead of rape in the courtroom implies the opposite ‘legal conclusion’: that it was just an innocent, ‘consensual’ round of hide-the-salami. Which the defense wants to be true, because then the victim is a deceitful whore seeking to realize the fondest wish of all low, promiscuous women: to bring false rape charges against a sterling pillar of male society because she ‘regrets’ her ‘decision’ to ‘have intercourse’.

The state of juridical process has truly plummeted to new depths of misogyny when the victim of a rape is forced to testify that she ‘had sex’ while unconscious with a man who had removed her to his apartment against her will. As Lithwick says, what’s next? “Should the complaining witness in a mugging be forced to testify that he was merely giving his attacker a loan?”

I’ve been complaining for some time now that words officially have no meaning anymore — they are regularly stolen from the people who need’em and put’em to reasonable use by megatheocorporatocrats, who reprogram them as minions in service of their own bloated interests before releasing them back into the public sphere — and this proves my hypothesis. If one erases the word rape from courtroom vernacular, if a victim of assault has no word to describe the violent nature of the attack, rape itself ceases to exist as a crime. All that’s left is sex, which everybody knows is the right and proper use of a woman, especially a drunk woman. Rape apologists — that is to say, men who don’t see anything criminal in a little coercion — can breathe a sigh of relief. A woman in public resumes her traditional role as public property in a persistent condition of having given consent. The natural order is restored.

[Thanks, Belle O'Cosity]

127 comments

2 pings

  1. stekatz

    I think this has been a while in the making. I remember years ago seeing news stories that reported rape as rape. Then they started reporting it as “sexual assault” instead. Well, all rape is sexual assault but not all sexual assault is rape. Some guy once ran up to my stepmother on the street and grabbed her breasts and ran off. That falls under the meaning of sexual assualt to me. Trying to lump rape under that same umbrella to me seems to lessen the seriousness of the crime. It’s as if they’re trying to alter the scale of severity with language.

    I just have to wonder what skeleton this judge has hiding in his closet that naming the crime makes him so uncomfortable.

    I think for so many years I just assumed that “normal” men don’t want to rape women and think that it’s wrong. I beleived that men who desire to rape were a sick anomoly, and the majority of men knew it to be wrong.

    Now I think the opposite may be the case.

  2. SourDad

    Ignorance is strength. It’s newspeak! Thank you Mr. Orewll for the prediction. The less people read the less they need words. I blame the TV, among other things.

    Truly unbelievable, Judge Cheuvront must be a truly impressionable individual. I can imagine him as a kid growing up in Nebraska: Hey Jeffre put your tongue on this light pole…

  3. acm

    When I first started reading this post, I read it backward. Surely if you were truly attuned to the oppressive nature of patriarchy, and you were asked to eliminate one of the words “sex” or “rape,” you’d choose the former . . .

    sigh.

  4. slythwolf

    Whiskey Tango Foxtrot.

    I can’t. I don’t. I’m so infuriated by this I don’t know what to do. Is there a way we can get this guy fired? Or something?

  5. Ganza

    I don’t know how to begin thinking about this. An American courtroom where a man is on trial for rape, and the word rape cannot be used. In what other circumstances can there be a trial for a crime, and yet the name of the crime cannot be spoken or even directly mentioned? Maybe I should go fight my latest parking ticket and move to have the work “parking ticket” banned from court room speech, and I’d get it thrown out because no one would have any goddamned clue what was going on.

  6. TP

    I read a Katherine Harris editorial this morning blaming the outcome of the De Anza case on the feminists and their shrill, hysterical, hairy-legged defense of the trollop who unfairly accused those poor innocent lacrosse players.

    So let’s put the blame where it belongs: Feminists! If it weren’t for all those feminists out there complaining about men raping them all the time, we’d have much lighter courtroom schedules.

    There is a movement in this country that is seeking to trivialize rape, and I’m not blaming the feminists. Men are becoming more and more accepting and unconcerned about rape every day. It’s like some sinister cultural shift is starting to whisper in men’s ears:”What’s a little rape, anyway? They love it, don’t they? They ask for it every time they show themselves in public looking visibly female, right?”

    It’s no coincidence to me that this shift is coming fast on the heels of the rise of internet pornography.

  7. Zora

    “His concern is that the word rape so inflames jurors that they decide a case emotionally and not rationally.”

    Would that it were true.

  8. phio gistic

    Can she say “I woke up in a strange place, naked, with a man I did not know on top of me forcing his penis into me” ? Will she be allowed to describe how it felt? What he was doing? What he had done while she was unconscious?

    From:
    http://www.omaha.com/index.php?u_page=2798&u_sid=2397636

    “Bowen said she had gone with a female friend to a pre-Halloween costume party at a downtown Lincoln tavern and had consumed maybe four mixed drinks before the bar closed.
    She said she didn’t remember leaving the bar, although a surveillance camera showed her leaving with Safi.
    The next morning, she woke up naked with the man atop her. Bowen said Safi stopped the sex when asked.
    “His words were, ‘You don’t remember last night? You consented,’” she recalled. “That shows he knew the difference.”

    The guy was already trying to convince her that she had “consented” *while he was raping her.* He knew exactly what he was doing and he knew exactly what legal loopholes he could drive his truck through.

    “The ruling on excluding prejudicial language was made in a hearing well before the trial, outside the view of the jury.”

    Yeah.

  9. Rumblelizard

    I wonder if he’d feel the same way if someone raped his mother, grandmother, daughter, or wife. It’s easy for men like Cheuvront to believe that rape is only slightly rough sex when it’s happening some other whore on the street, and besides she was asking for it by being female and in public. When it’s their own property though, then it’s different!

    I’m sickened and disgusted, but not at all surprised. IBTP.

  10. LS

    The jury doesn’t even know that the restriction is in place. What happens if the vict — I mean, complainant, utters the word on the stand? Does somebody sound a Taboo buzzer and declare a mistrial?

  11. madame furie

    Sometimes things make zero sense at first glace but later, once the back story is revealed, a collective “ooooohhh, now I get it,” is made.

    This is not one of those times. I don’t understand how this could be rationalized at all – or how they can justify not telling the jury that the word “rape” has been banned from the courtroom. If I were on the jury, I would be wondering why this woman won’t call it like it is, and the absence of the word might color my judgement. It’s a lose-lose situation – for the woman, at least.

  12. GenderBlank

    This guy makes me embarrassed to be from the midwest. Dick.

  13. norbizness

    As I said on the Feministe thread covering this Orwellian development, I think a simple “I got fucked without my permission” from the victim… er… woman who seems to be talking about something that happened for some reason… should shake the courtroom participants out of their collective stupor.

  14. Vera

    TP, is there a URL for the editorial by Katherine Harris?

  15. LouisaMayAlcott

    Or even better, “a man fucked me without my permission, and it was ** him **.

  16. ekf

    The best way to deal with this, I suppose, is to have women making rape complaints constantly describe the crime in terms of its elements. Instead of saying that he raped her, she could say that she awoke to find him using his penis to penetrate her vagina without her consent, that she had not consented to such penetration (as she was unable to consent, being unconscious), that he was aware of her lack of consent as demonstrated by his having begun penetrating her vaginally with his penis while she was unconscious, and that he continued use his penis to penetrate her vagina by force despite this awareness.

    Then, when it’s time to instruct the jury, there will be no (horrors!) inflammatory language (because heaven knows no one should be inflamed by the idea of a man using a woman’s body as anything other than a fuck doll — no sirree), but the instructions will lay out the elements of the crime, which are generally (1) sexual penetration (2) without consent. It loses some of the human element, of course, but what it lacks in humanity it gains in clarity for the jury. And it stays away from both rape AND sex, which should allow for a victim’s lawyer to argue that the latter term should be banned if the former has been.

  17. Hattie

    What TP said.
    After all, no decent woman would let the word “rape” fall from her lips anyway.Perhaps the defendant can rescue her reputation. After all, she had drinks. She was involved in intercourse. What a trollop. I say we eliminate the word altogether from the English language. No word for it, no crime. How handy.
    I also like the word “domestic,” which usually means “a man beating the crap out of his wife or girlfriend.” And the passive voice is so handy. Someone was assaulted. Someone was shot, etc. etc.
    We must protect perpetrators at all costs. Victims are such a pain.

  18. thebewilderness

    I don’t suppose there is any chance he will permit the victim to state the simple truth that when she woke up there was a man on top of her torturing her, that he had been torturing her for some time, and only stopped when she demanded he do so?

  19. Belle O'Cosity

    Since I can’t assume that men know that the default is no you can’t have sex with me, should I just assume that all men are rapists unless they prove otherwise? Which of course they can’t, but the statistics I have been reading lately say it is more likely than not. I hate the idea of thinking that all my male friends, aquaintences, work associates, etc. are part of that group. But they are.

    Oh and no, norbizness and LMA, a lady would not say “fuck.” Use of the word fuck constitutes whorishness and therefore the right of all men to fuck her at will. Oh also saying something like “he was forcibly shoving his penis in my vagina” won’t work either, cuz you know such technical terms are also dirty, again making the woman again a dirty whore open to all comers (pardon the pun). Hell in the fundy community, simply knowing you have a vagina means you are a whore. You know, because obviously if you know what it’s for then you want use it with everyone.

  20. Shabnam

    What a surreal situation to be in. If I were the victim, I would be so tempted to say the words “He er,… rapeseed-oiled me”. Surely then, I could use the defence that I did not use the word “rape”? Play their own stupid game. No doubt it would backfire.

  21. blondie

    I agree with ekf, if the victim can stand it, rather than saying the defendant was raping her or having sex with her, she should just describe exactly what was happening … I started to wake up, and he was laying partly on top of me, pushing my legs apart with his legs, holding down my arms with his hands/arms, and jamming/ramming/shoving/etc. his penis into my vagina, over and over. I was afraid. It hurt when he repeatedly shoved his penis into my vagina. I started to cry, and I asked him to please stop it. …

  22. ekf

    I like your way of thinking, Shabnam. What about “grape-ing” or “broccoli-rabe-ing”? They’re not conclusory, right?

  23. yankee transplant

    Oh dear lawd what next? Is there no end?

  24. Orange

    Eventually it will devolve to “He impugned my honor” vs. “She asked me to dishonor her.”

  25. tinfoil hattie

    There is no such thing as “rape.” Not anymore. For so long the patriarchy has tried to rid us of the notion that women have any say over our bodies, any agency at all, and we have just stubbornly clung to the belief that we do — in spite of all evidence to the contrary.

    Silly us. I am so fucking sick and tired of this shit I can’t see straight.

    And once you open your eyes to the patriarchy (thanks, Twisty!), you sure as hell can’t go back. I am not kidding when I say I really don’t enjoy my friends much anymore. I don’t want to listen to them complain about their husbands who do NOTHING to enhance their lives (and in fact make their lives HARDER, of course), followed by a sigh and a “Well, what can you do?” I am sick of sick of everything. Every fucking thing.

    And I’m especially sick of my best friend asking me, “Why are you so angry? You sound really angry. You’re really a very angry person. What’s going on with you?”

    Damn straight I’m angry.

    IBTP, of course.

  26. mearl

    Ha, yeah, or “He became ONE with me despite my tearful sighs and vain attempts to protect my maidenhood.” Barf, barf, fucking barf. Can anyone supply the email address of the featured litigating fuckwad, so we can barrage his inbox with protest? Here is all I could find, which I assume is the address of the esteemed Judge’s office:

    Judge Jeffre Cheuvront
    575 S 10th St.
    Lincoln, NE
    68508

  27. LouisaMayAlcott

    Quoth Belle O’Cosity:

    “You know, because obviously if you know what it’s for then you want use it with everyone.”

    Hahahahah! That takes me back.

    30 years ago I knew a woman with 5 kids who referred to her vagina as “down there where your period comes out”.

  28. Bubbas' Nightmare

    My latest installment of our doubleplusungood encroaching Orwellian culture:

    ‘Symes said, “It’s a beautiful thing, the destruction of words.”‘

    The more I hear and see, the less inclined I feel to keep my hand on the rudder of evolutionary change in our society, and the more inclined I am to take up the firebrand of revolution. I’d like this culture to be a decent place for my teenaged daughter to live in, and I’m tired of patience.

    Something’s got to give, folks. Judge Cheuvront’s cranial bones sound like a good place to start.

  29. Sunspots

    “It’s no coincidence to me that this shift is coming fast on the heels of the rise of internet pornography.”

    Slam dunk, TP!

    Internet porn: normalizing rape culture with every click.

  30. Disgusted Beyond Belief

    I can understand the sentiments expressed here, but being as I am one of the evil ones (i.e. a lawyer), I have to conclude that it isn’t as nefarious as it might seem.

    You truly are not allowed to testify to legal conclusions in a trial. Legal issues are for the judge and the judge alone. Factual determinations are for the jury and the jury alone. It gets fuzzy where regular language intersects with legal language. Rape has a meaning outside of any legal context. Whether it is illegal or not, sex without consent is rape. But when you also have a crime called ‘rape’ you have to be careful in a courtroom that you don’t conflate the two.

    Witnesses are just plain not allowed to testify that they think defendant committed X crime. That is not for a witness to decide. A witness can testify that they witnessed defendant do X, Y, and Z, and the the prosecution can argue that X satisifies element 1 of the offense charged, Y element 2, Z element 3, and since all elements are satisfied, that means the defendnat is guilty of the offense charged. But you can’t just have a witness testify that defendant did ‘offense charged’ – thus, the problem.

    I don’t think it ultimately will matter much. I’ve had the misfortune to work on multiple rape cases, many involving children – the word ‘rape’ was not used in any of them that I can recall. All of the defendants were convicted. And the testimony was no less horrific for the lack of that word. Seeing small children testify to the specific mechanics is both heartbreaking and also rather effective at getting convictions.

    So, though I repeat myself, to reiterate – you don’t convict someone of robbery by putting the victim on the stand and having them point at the defendant and say ‘he robbed me’ – that is both improper and also actually would be insufficient to support a conviction. Robbery has elements. Each element must be individually proved beyond a reasonable doubt. You can’t just assume the witness even knows what those specific elements are. Thus, you ask about specifics, then argue the specifics satisfy the elements.

    And come to think of it, though the article claims words like ‘murder’ and ‘embezzlement’ aren’t banned, I’ve worked on murder and embezzlement cases and I don’t recall those words being uttered by witnesses in any of those cases either, though this is obviously not a scientific sample.

  31. Mamasquab

    I think I’m gonna throw up. Can you imagine the word “theft” or “murder” being banned from the courtroom because of their prejorative connotations? And no, the descriptions some of y’all have offered as replacements for the term don’t work because they don’t get at how rape is a part of an abusive power system whereby women are seen by men as primarily fuckable. Oh dear god. What ARE we gonna do?

  32. Rainbow Girl

    Judge Unable to Distinguish Sex from Rape.

    This is a newsflash?

    How about “Courtroom Language Now Reflects Reality of Justice System”?

  33. Christy

    I seem to remember hearing something about free speech in the Constitution . . . first amendment, right?.

    If the courtroom is not suitable jurisdiction for the highest law in the land, then where do we practice it?

    Seriously, I don’t think what he did is even legal. Hopefully it will get taken to a higher court, or hopefully no one will pay attention and say it anyway. I mean, if the actual technical charge is called “sexual assault” how are you not supposed to say that in the courtroom? The whole process will become a Monty Python sketch.

  34. Urban

    Disgusted Beyond Belief,
    I have some legal scholarly chops myself, and I follow your argument about the witness not being able to simply testify that the crime was committed. But while a witness may not be able to state ‘he raped me’, banning the word altogether from the court room and not informing the jury of this fact, goes far beyond the need to avoid witnesses self-defining the crime, in my opinion. It seems you could certainly achieve the aim without a TOTAL ban. I mean, what do you do in your opening/closing arguments? (disclaimer: I’m not a US trial lawyer).

    You also lose me here:
    “Whether it is illegal or not, sex without consent is rape. But when you also have a crime called ‘rape’ you have to be careful in a courtroom that you don’t conflate the two.”.

    Can you expand on this? It appears that you’re saying that there are situations where sex without consent could be legal. I’m having difficulty imagining such a scenario.

  35. Urban

    Plus, I forgot to add, if it’s standard court-room practice to exclude the word of the crime itself, why would anyone need to ‘win a motion’ to get the word banned? Clearly the judge had discretion here, and clearly he exercised his discretion using his patriarchal bullshit goggles.

    IBTP.

  36. Disgusted Beyond Belief

    Urban,

    Sorry for the confusion – I was speaking in the legal-technical sense. I’m not saying non-consensual sex is legal anywhere (at least not in the United States) – I’m saying that the legal definition and the common definition are two different things, though obviously there is overlap.

    To use an archaic example – common law burglary had as one of its elements that the crime MUST have taken place at night. Yet someone, especially today, could see a house being broken into during the day and call it ‘burglary’ – and yet it wouldn’t be under the old definition. Thus, the confusion – and the reason you don’t let witnesses use legal conclusory language. They can only testify as to what they saw. ‘I saw person X break a window and then climb into the house, then minutes later, climb out with a TV in her hand.’

    Now, in a trial for rape, witness could testify that defendant penetrated the complainant with a finger in a body orfice. There could be additional testimony that no consent was given and that the complainant was heard to scream ‘no’. Thus, the elements of criminal sexual conduct, argues the prosecutor, were met – sexual penetration without consent.

    And come to think of it, rape was defined such that no man could ever be raped, and no woman could ever commit rape. Thus, the original definition of rape did not include lots of possible scenarios of non-consensual sex.

    You don’t need the word ‘rape’ to convict. ‘Rape’ is, in fact, tantamount to a legal conclusion. Of course, the PROSECUTOR normally can argue that crime X was met during opening and closing statements – witnesses are another matter, and that includes questions to witnesses.

    Of course, in my state (Michigan), rape is not a crime in the sense that there is no crime called ‘rape’ – instead, there is Criminal Sexual Conduct – in varying degrees, depending on the age and status of the complainant and what exactly was done.

    Christy – what the judge did is probably legal – it is ALWAYS wrong to allow witnesses to testify as to legal conclusions – (well, narrow exceptions, I think, for certain kinds of expert testimony, but even that might not be the case any more). In other words, in any court in the land, if a witness tries to testify ‘X raped me’ that will be objected to and the objection will always be sustained – as would the question ‘did X rape you?’ – because it calls for a legal conclusion. So in that sense, the article is rather alarmist for a nonsense reason.

    It is also rather alarmist, given that you don’t need to use the word ‘rape’ to convict someone of CSC – as I said above, in none of my CSC cases was the word ever uttered, and yet that did not stop all of those defendants from spending basically the rest of their lives in prison.

  37. tinfoil hattie

    I don’t give a rat’s fucking ass about the fucking developed-by-the-patriarchy “justice” system. Can’t “draw a conclusion”? Fuck that. Can’t “give any woman the courtesy of believing her at face value” is more like it.

    Sorry. I don’t mean to be taking it out on my fellow blamers. I just want the revolution, and I want it NOW.

    Twisty for President. Except in the Twistyarchy we’d call it something else, right?

  38. kcb

    There’s a billboard advertising engagement rings near my home that I think explains it all: “Speechless usually means ‘yes.’”

    I get the proto-pukes every time I see it, and this kind of courtroom bullshit is exactly why.

  39. TinaH

    Ok, then, to heck with democracy.

    Twisty for Empress! I want a Twistatorship and I. Want. It. Right. Now.

  40. DonaQuixote

    I’m about to get seriously flamed over at salon’s broadsheet because I totally lost it when one of our resident feminist haters posted about how this is just a case of feminists complaining that our politically correct chickens have come home to roost.

    I’m usually so good at ignoring those guys, but man oh man I couldn’t friggin believe the gleeful attitude. Well, I could believe it, but I couldn’t stomach it.

  41. cycles

    Disgusted Beyond Belief, thank you. That was a clear explanation.

    Here’s the weird thing: rape trials have been going on for ages under the traditions and restrictions DBB describes above. And then along comes this judge who decides to explicitly ban those words, which is not the normal thing to do.

    It’s fishy. I don’t like it. Blame!

  42. roamaround

    “the victim is a deceitful whore seeking to realize the fondest wish of all low, promiscuous women: to bring false rape charges against a sterling pillar of male society because she ‘regrets’ her ‘decision’ to ‘have intercourse’.”

    Brilliant analysis, Twisty. That sentiment was recently expressed to me by a female high school counselor, no less, who believes that most rape charges are false. How’s that for progress?

    TP: “It’s no coincidence to me that this shift is coming fast on the heels of the rise of internet pornography.”

    I agree! Between the porn and other rampant violence passing for entertainment, I am just sick about warped everything has become. Not that there were any good old days, but these are very, very depraved days. This attitude toward rape is just another example.

    Tinfoil Hattie: “And once you open your eyes to the patriarchy (thanks, Twisty!), you sure as hell can’t go back. I am not kidding when I say I really don’t enjoy my friends much anymore. I don’t want to listen to them complain about their husbands who do NOTHING to enhance their lives (and in fact make their lives HARDER, of course), followed by a sigh and a “Well, what can you do?” I am sick of sick of everything. Every fucking thing.”

    I am in the same place and frankly I don’t think it’s healthy. Taking off the patriarchal blinders is good, but we have to survive and we need some community IRL. I think we should talk about this social disconnect thing on the message board.

  43. Patti

    If it’s common to not be allowed to use the word “rape”, how do they explain the charges to the jury? Don’t they start the whole trial by telling the jury what the defendant is charged with? I guess some kind of assault term?

  44. Urban

    Thanks for the response, DBB. I see what you mean now, but I’m still instinctively nauseated by the approach (the judge’s/court system’s, not yours).

  45. TwissB

    Let us not forget that, as the Victorians put it, “sex” is the elegant way of referring to women, as in male pronouncements about “the sex.”

    And then there is the gradual misappropriation of the word “sex” in more recent times to refer strictly to sexual intercourse, as in “Did they have sex?” Well don’t we all?

    Political (i.e. cowardly) feminists can no longer
    speak of “sex discrimination” or “sex equality” but must whisper delicately about “gender bias” or “gender equity” (equity means that the people in charge of keeping things unequal get to decide what’s “fair”). God forbid that a lady should suggest that men are to blame for anything.

  46. slythwolf

    30 years ago I knew a woman with 5 kids who referred to her vagina as “down there where your period comes out”.

    Which is extra disturbing because it implies she thinks your period comes out of her vagina.

  47. slythwolf

    And yeah, by the way, DBB, the judge didn’t say “the witnesses can’t say ‘rape’ or ‘sexual assault’”–he said “nobody in my courtroom can say ‘rape’, ‘sexual assault’, ‘sexual assault kit’, ‘victim’ or ‘assailant’”. I would imagine “nobody” includes the lawyers, so. Your argument is interesting, but it doesn’t hold water.

  48. Anne

    What does it mean for women to be (once again) unable to name their experiences?

  49. Frigga's Own

    Unfortunately, norbizness, a simple “I got fucked without my permission”, is likely to cause any woman on the jury to wearily say, “Welcome to the club”. Sometimes that sounds exactly like the long definition of womanhood to me.

  50. Disgusted Beyond Belief

    What that judge did is a little further than what would be done in most courts, in that no one is allowed to use the term even during closing arguments, but to answer another question about that, what word do you use, you would use the name of the offense, which in my state, they would say that defendant was charged with x-degree criminal sexual conduct.

    But though the word ‘rape’ wasn’t totally banned in the cases I worked on, it might as well have been, because I don’t recall the word being actually used. Prosecutors have to talk about elements and prove each one individually. Beyond that, jurors are not idiots (well, hopefully not). If you have a witness talking about non-consensual sex, and you’re sitting in a courtroom, it doesn’t take a genius to realize that it is all about some form of rape – otherwise, there would be no trial about it because regular, consensual sex is not illegal (well, except for some archaic exceptions).

    I honestly don’t have a problem with what the judge did. I don’t think it will prevent any guilty defendants from getting convicted. It sure hasn’t in any case I’ve looked at. Why not do what we can to make sure trials are fair and about the facts instead of about emotionally charged language? I’m sure everyone here would appreciate that if you or your child or loved one were the one on trial. If it makes you feel any better, while there are a lot of rules and protections in place to protect the rights of defendants, in just about every trial, prosecutors break those rules and trample all over the rights of defendants in some way or another and most of the time the judge lets it happen, and they do not usually result in reversal on appeal because in almost all cases those trampling of rights will be found to be ‘harmless’ and so the conviction stands. Thus, prosecutors have no real incentive to not break the rules all the time. It is amusing to see people all up in arms about defendants getting off on technicalities when the reality is that most of the time it is defendants getting convicted with prosecutorial misconduct. Now, perhaps most of them were guilty anyway, but that is still not the way the system is supposed to work. What happened with Nifong (a prosecutor actually being held accountable for bad behavior) is the exception, and a very rare one at that.

  51. delphyne

    He didn’t just ban the word rape he banned the words “sexual assault”, “victim”, “assailant”, and “sexual assault” kit as well.

    It’s great that you don’t have a problem with what the judge did DBB: women who care about rapists being convicted and rape victims being able to name their own experiences when they demand justice for the crimes committed against them do have a problem with it however.

    “Why not do what we can to make sure trials are fair and about the facts instead of about emotionally charged language?”

    I think this is the giveaway to where your sympathies actually lie. It’s obviously “fair” to rapists for their crimes not to be named, it’s completely unfair to victims not to allow them to name their experience and what the rapist did to them. And it’s not the language that is emotionally charged, it’s the act of rape and the devastation that it causes to women, although courts try very hard to ignore this.

  52. Mar Iguana

    “…in none of my CSC cases was the word ever uttered, and yet that did not stop all of those defendants from spending basically the rest of their lives in prison.” – Disgusted Beyond Belief

    Thank you for taking out the trash.

  53. Christy

    Disgusted Beyond Belief,

    I appreciate your comments and I think what you have said makes sense. Thank you for a lesson in stopping and thinking.

    I do a lot of counseling work with rape victims, I am a psychologist at a women’s center. My agency also employs a team of sexual assault advocates who help the victims through a variety of processes from the rape kit to restraining orders, to the trial and beyond.

    As a counselor I have heard numerous rape stories and it is rare, even in the privacy of a counseling session, that the victim says “then he raped me”. Unless she says that to move quickly past that part if it is still too difficult to talk about. When she does decide to go through the details of *everything* that happened, it can be quite heart-wrenching, not only because of what she is saying, but because often she is re-experiencing the trauma as she tells it. Her expression, voice, posture and energy are all revealing of the depth of her trauma. Although, this is not always the case, there are times when a victim is dissociated and is completely flat as she tells her story. In either case she is showing the symptoms of Posttraumatic Stress Disorder.

    As far as the courtroom goes, I think the major hurdle to be jumped is the attitudes people have before they hear the case. If the judge and jury have victim blaming attitudes to begin with, simple use of the word “rape” isn’t going to change their minds, it may even trigger their attitudes.

    Example: a case involving a 13 year old girl; her mother dropped her off at the movie theater, she uses the bathroom during the movie, a man assaults and sodomizes her in the bathroom, a janitor comes across them and watches for his entertainment. When the rapist is done and runs out of the (women’s) bathroom, the janitor realizes it might not be consensual, police are called, rape kit is done, there is ample DNA evidence. The case goes to trial, after all is said and done the charge is reduced to Lewd and Lascivious Behavior based on the fact that the victim didn’t scream as she was being raped. (It occurs to me now that he should have been at least charged with statutory rape, but he wasn’t.)

    This case provides a perfect example of ignorance and attitude getting in the way of justice. It is rare that a victim screams as she is being raped, by the time the struggle reaches this point, her autonomic functions have taken over completely and she is in a dissociative state, or the perpetrator has made a threat to kill her or her loved ones if she makes a sound and she keeps quiet out of sheer terror.

    I suppose what might benefit these victims is if there were some expert testimony from a psychologist who could explain the the judge and jury the difference between the sympathetic and autonomic nervous systems and exactly what happens when the autonomic takes over.

    In my opinion, blaming the victim is a purely thoughtless attitude. No one makes a man rape. The reason women are made to wear burkas in the middle east is because they are so beautiful and seductive that the men just can’t think clearly or control their desires. The wearing of a burka is really the end point of this kind of rationale, or maybe the total segregation of women and men (which is also common in some countries) is the end point.

    It boils down to a simple logic equation: if men can control their impulses, then they are responsible for rape. If they are responsible for rape then you can’t ask the victim if she did anything that was inadvertently “seductive” before she was raped.

    If men can’t control their impulses, who is responsible for that?

  54. Sara

    See? Being decreed unfuckable by Frat Boy Nation might not always a bad thing. It might reduce, if not eliminate to a certainty, the possibility of having to have courtroom discussions of this nature.

    I wonder if the word “fuck” is admissible.

  55. Disgusted Beyond Belief

    Sara – interestingly, I don’t recall ever seeing the word “fuck” in CSC cases either, though I have seen it liberally used in assault and murder cases, usually when a witness is describing what a defendant said before or after (or during) the assault or killing, though almost always the victims are men in those cases.

  56. Sara

    I agree; that is very interesting. Thanks!

  57. Orange

    Ah, but Sara, the unfuckable girl can also be brutalized by her rapist’s defense attorney. Last month in England, a female defense attorney argued that a fat teenage girl (a virgin hitherto, I believe) voluntarily had sex with three guys because it would boost her self-esteem by proving that she was fuckable. Any rape victim can be blamed.

    But not by me. Instead, IBTP!

  58. EN

    Twisty for Taqeau Supreme.

  59. Kali

    Very often “emotionally charged” and “prejudicial” is a boogeyman that the legal system uses, as it wishes, to make getting justice for victims (particularly rape victims) more difficult. Past history of rape victims is freely admitted and considered relevant, but previous convictions/trials of the rapist are considered “prejudicial”. Using words like “rape” are considered “emotionally charged” and therefore not to be used, but using euphemisms for rape, such as “sex” are freely admitted.

    Using language that deliberately strips emotionally charged acts of their emotionally charged quality is what is prejudicial, not the other way around. But prejudice in the direction of inculcating cold-blooded indifference to heinous acts committed against women is acceptable to a patriarchal legal system.

  60. Kali

    “Thank you for taking out the trash.”

    Mar, I don’t think he said which side he was arguing for.

  61. Disgusted Beyond Belief

    Kali – You have it backwards. Past sexual history of rape victims is generally always excluded from evidence. Past history of rape for a defendant is pretty much always included, at least in Michigan. I’ve seen it happen repeatedly – and watched as past history of a defendant is brought into evidence, over objection. It has been that way for a long time. Even the federal rules of evidence have codified this, allowing past history for defendants when it is a sex crime when such evidence is generally (supposed to be) kept out for all other crimes. (Of course, as a general rule, prosecutors ALWAYS find a way to bring that evidence in and use it against defendants anyway).

  62. delphyne

    Which side were you arguing for, DBB? Are you a prosecutor?

    The prosecutors in this case weren’t happy about the judge censoring the words they were allowed to use.

  63. scrappy

    Ok, so procedural rules bar a witness from drawing legal conclusions in her statements. Hence, we are supposed to excuse this judge as just having done his job (i.e., protect the defendant). Fuck that. As any non-MRA with a gut can figure out, this dude went way too far.

    Others have already pointed out that the ban this judge imposed far overreaches the requirements of the rule. And not just with respect to opening and closing arguments: Notice that no one was permitted to refer to a “sexual assault kit” or “rape kit,” either.

    Added to which, the jurors were in the dark. They were practically invited to draw (erroneous) conclusions from the fact that no one in the courtroom ever used any of the banned words. But FYI, if the defendant took the fifth, the jury was instructed not to consider that in their deliberations.

    Worst of all, the court rejected the prosecution’s motion to ban the words “sex” and “intercourse.” But these are legally conclusory terms as well. Rape is not sex lack of consent; it is penetration lack of consent. [Yes, I realize that the legal accuracy of this assertion depends on the particular nomenclature and elements of the crime in particular states, but you get my point.] Both Lithwick and Twisty have made this point amply and eloquently. It’s an oxymoron.

    I’m reminded of testimony in a rape trial that happened in my district a few years ago: During cross-examination, the public defender asked the victim a question that started with, “When you had sex with the defendant…” She shot back, “I didn’t have sex with him. I was RAPED.”

    In this judge’s courtroom, the victim (complainant, if you prefer) was stripped of her power even to object to such a characterization.

    The legal system was created, and is maintained, by the patriarchy, for the patriarchy. So I have no patience with apologists who are willing to explain, always with patented NiceGuy(tm) sympathy and patience, why it’s “necessary” for this kind of gross miscarriage of justice to take place. Right, there are laws; lawyers and judges operate within them; I get it. But to stop there — to not go on to point out the patriarchal deployment and effects and origins of those laws, to not question whether a system that permits this outcome is legitimate, tells me all I need to know about the motives for the “explanation.”

    And I will add, because this is another trick of the apologists, that there is a great deal of discretion in the legal system, and lawyers and judges hardly ever “have” to do anything of this nature. E.g., this judge did not “have” to ban all of these words in all of these contexts (see above), just like Alan Stokkes did not “have” to foment the opinion that the women who got jacked off on by a cop on a traffic stop was a slut and probably wanted it. I.e., no ethical rule requires it, he could not have been sued for malpractice if he had failed to do it, hence he made a decision informed by his indifference to women, his complicity with patriarchy, and probably his own personal misogyny. But I digress.

    Folks, DBB is not “giving us a lesson in stopping and thinking.” No, dollars to donuts, DBB is a dude, and has shown up here for the purpose of educatin’ us ignorant and hysterical womenfolk. Because really, getting upset because a court of law has officially sanctioned the use of the word “sex” to describe rape is alarmist.

  64. scrappy

    Rape is not sex lack of consent; it is penetration lack of consent.

    That was supposed to read: Rape is not sex plus lack of consent; it is penetration plus lack of consent. Apparently the blamulator does not speak the language of plus signs.

  65. Disgusted Beyond Belief

    Of course the proseuctors weren’t happy. But then the standards we set for trials are not defined by ‘what makes prosecutors happy.’

    And no, I’m not a prosecutor. I’m not a defense attorney, either. I guess you could say I don’t argue for either side, I provide neutral analysis. The only thing I argue for is the legally correct result, which given the stage of the process, almost always means affirming a conviction.

  66. Miller

    Have you seen the response to the Broadsheet article on this story? It’s insane!

    Regarding rape trials: we should offer anonymity to the alleged rapist as well (for the sake of integrity). We should also combat the sexualization of rape. Society refuses to believe rape is anything less than “inappropriate” sexual behavior. Rape is a damn hate crime. To finally start holding rapists accountable, there needs to be a focus on his views towards women and girls, his preferred type of porn, and his attitude toward rape itself.

  67. delphyne

    Oh, I was responding again to your “I honestly don’t have a problem with what the judge did”. You didn’t have a problem, on the other hand the prosecutors weren’t happy.

    The thought in my mind was why you’d privilege your lack of a problem against the prosecutors’ objections. Both positions would have legal arguments to back them up.

    I guess if you’ve appointed yourself as “neutral” here, that might explain it.

  68. delphyne

    Also I think you’ve been kind of misleading here:

    “I don’t think it will prevent any guilty defendants from getting convicted. It sure hasn’t in any case I’ve looked at.”

    I mean if you deal with cases after convictions have been achieved then quite obviously you won’t be seeing the cases where men have got away with rape e.g. the De Anza case, or the Duke Rape case (and they didn’t even get to court). Your experience lies with convicted rape cases, not all rape cases. There’s quite a difference.

    I take it you don’t provide neutral legal analysis on cases where rapists have been found innocent?

  69. Disgusted Beyond Belief

    Prosecutors are political animals. Too often, they seek convictions to rack up points rather than acting as agents justice, which is what they are supposed to be.

    I have not appointed myself as anything. My job requires me to be neutral in my analysis.

  70. Miller

    Someone sarcastically posted how a “little” rape wasn’t bad. Did you hear about the Jerry Seinfeld rape joke? He discussed how bees have perfect societies except that there’s rape, but a “little rape isn’t bad.” When anti-rape activists called him on it he “apologized” in that he learned from being a husband that you can apologize and not mean it.

    Of course, many came to his defense for an “off color” joke and mocked the activists for their concern over bee sexual abuse. Yes, that’s right, his joke was not about trivializing and justifying rape, but about bees. Sure. Apparently, it’s impossible to tell a rape joke: they are all either misunderstood or brilliant pieces of satire.

  71. TP

    Miller said:

    Regarding rape trials: we should offer anonymity to the alleged rapist as well (for the sake of integrity). We should also combat the sexualization of rape. Society refuses to believe rape is anything less than “inappropriate” sexual behavior. Rape is a damn hate crime. To finally start holding rapists accountable, there needs to be a focus on his views towards women and girls, his preferred type of porn, and his attitude toward rape itself.

    So many great ideas should not just fly by without someone taking a moment to praise them. Extending anonymity to the rapist doesn’t sound like a bad idea on the surface: What does the commentariat think?

    Rape as a hate crime is the way to go. Could anyone suggest that it is not? Can you imagine a conservative trying to figure out a way to reconcile his godbag beliefs with rape not being a matter of hating women?

    The focus of a rapist’s views on women, pornography, and sexual compliance would be most illuminating, and could lead to a better understanding of how porn affects behavior.

    We hear about idiotic studies every day defending pornography or proving that womens likes it too, boy! but when do you ever hear studies of the pornographic viewing habits of rapists?

  72. Disgusted Beyond Belief

    Delphyne – What do the De Anza case or the Duke case have to do with this particular discussion? Neither case is in court, so rules about what words are allowed are really irrelevant.

    But since you bring them up…

    With regard to the De Anza case, which I (and you) know almost nothing about with regards to the details known by the DA (since they haven’t been released), well, my best guess is that the problem there is not so much establishing there was a rape but establishing who it was who did it. You can’t just prosecute an abstraction. And unfortunately, in nothing I’ve read about it were any of the witnesses able to posititely identify anyone as a rapist. Perhaps with time they will be able to turn up some leads or more evidence, but without that, they can’t prosecute.

    With regards to the Duke case, it has been established pretty clearly now that there was no rape, not by anyone in that house. There comes a time, I think, where failure to accept that really hurts the cause of women who really have been raped – after all, they can just point to all the people who refused to believe the Duke players were innocent despite the overwhelming evidence that this is the case as evidence of unreasonableness on the part of those who advocate for rape victims.

    … with regard to my work, it is true that most of what I work on is post-conviction. But that is not my only exposure to cases and I do a great deal of research for my job. And in any case, if mention of the word “rape” is required for convictions, I’d have expected to have seen it by now. Its universal absence tells me that it is not required.

  73. lightly

    One of the appropriations of language that galled me the most was the one pulled on Marian Wright Edelman by Bush and his subhuman minions. The slogan No Child Left Behind was originally used by Edelman’s group, the Children’s Defense Fund. Then, one fine day, Bush just appropriated the name. Of course the program Bush slapped the name onto has been a sham and a disgrace. Now people call Edelman’s outfit who are fine and legitimate, and lambast them for the crimes of the disgraceful Bush program.

  74. delphyne

    Once again, “rape” isn’t the only word banned in that particular courtroom. Do the words “sexual assault”, “sexual assault kit”, “victim” and “assailant” feature in these court cases you are expert in?

    Obviously all those words are used in court in rape cases or the defence lawyers wouldn’t have needed to ask for the motion to bar them in the first place, and if they did the judge would have just said “we don’t use those words here”.

    Actually don’t bother answering that because I’m not at all convinced of your impariality and am struck by your ability to rationalise the indefensible.

  75. Kali

    “My job requires me to be neutral in my analysis.”

    What exactly is your job?

    “Kali – You have it backwards.”

    Really? Then why have I heard of so many cases where the defendant’s past convictions were not admitted in court? And also of cases where the past history of victims was dragged in when it shouldn’t have been? It is not supposed to be allowed into court, if it is irrelevant, but the threshold for relevancy, in the case of victims, is very low. Doesn’t look like you are being very honest here.

  76. Disgusted Beyond Belief

    Kali – I can only speak to my own experience and how the law works in my state (and federal law, which all lawyers learn in law school).

    In Michigan, a defendant on trial for rape with a past history of rape will almost invariably find that past history entered into evidence. The trick is, it isn’t allowed in to prove the rape itself (or to prove “action in conformity with past behavior”) but it can be brought in for the “limited purpose” of any other justificiation, and prosecutors can always find one that fits – like proving motive, common play or scheme, absence of mistake or accident, etc. And then the jury is instructed not to use the prior crimes as evidence that this crime was done, *wink wink*, which of course, no human being could really avoid doing.

    A victim’s past history is inadmissible. The only way you’d ever get that in is in very unusual circumstances – like if the complainant was into that strange sexual practice where you like to be asphyxiated, and then that happened during the alleged rape, that past history could be brought up to show that it was consensual, to use an odd example. But normally, no, past history evidence stays out, and has been kept out for many years now.

    As for use of terms like “sexual assault,” etc. no, those words have not generally been present in the cases I’ve worked on either. Witnesses talk about specifics. Prosecutors talk about elements and statutes, so they talk about elements of x-degree Criminal Sexual Conduct. Maybe a mention of sexual assault was made in an opening or closing argument, though I can’t say for sure one way or the other. But like I said, such words are not required for conviction, and generally, I think that more specifics are more effective with juries anyway – they would be with me. Saying ‘X sexually assaulted Y’ sounds rather conclusory to me. But describing in graphic detail what X specifically did to Y and letting the jury draw its own conclusions, that is very effective.

  77. scrappy

    Extending anonymity to the rapist doesn’t sound like a bad idea on the surface: What does the commentariat think?

    TP, I think it’s fucked up. Defendants become defendants if there is probable cause for their arrest. So while they may be innocent, or found innocent by a jury (two diffent things), they do have the benefit of some process. Victim-witness-complainants don’t, so it is not a mark of “integrity,” as the OP put it, to equate the two.

    Also, notice that this is an idea that gets floated about rape defendants only. The general idea is, tit for tat: if she (the victim) gets anonymity, then so should he (the rapist). (This is setting aside scenarios that differ from male-against-female, along with the Butlerian question of whether those categories are real.) The argument for giving her anonymity is that she is subject to shame and harassment and an invasion of her privacy if her identity is known. The argument for giving him anonymity is what? That he might be innocent? Sure, but if this is the case, then we would have to grant anonymity to all criminal defendants.

    But somehow, no one ever takes this position. [As an aside, neither would I, for two reasons: 1) As I mentioned, defendants do have the benefit of some process. Probable cause is not equal to guilt, but releasing someone's name is also not equal to conviction. 2) Legal and actual innocence are two very different things. We have a system designed to let 100 guilty persons go free rather than imprison one innocent. And clearly, some do go free, if not in a 100:1 ratio. But my judgment as a citizen may be different from the judgment of a juror -- for instance, because I am privy to information about the defendant or the crime that was inadmissible at trial. Hence, I think that I, and everyone else in the community, is entitled to know when, say, our next-door neighbor is charged with a crime -- even if s/he's not convicted. This is more true in the case of rape, not less, because the system is so biased and the prosecution & incarceration rates are so much lower than for other crimes.]

    This logical inconsistency — the absence of a call for anonymity for all criminal defendants, even though the reasoning is the same regardless of the crime — suggests to me the following: Those who call for anonymity for rape defendants do so not because it is tit-for-tat, but because they believe rape accusations to be less credible than other accusations. I.e., they consider women to be less credible than other complainant-witnesses. Sounds mighty familiar, doesn’t it?

  78. Kali

    “Actually don’t bother answering that because I’m not at all convinced of your impariality and am struck by your ability to rationalise the indefensible.”

    It’s also very suspicious that he first gave the impression that he was prosecuting cases for rape victims. Then when Mar Iguana thanked him, he did not clear up that misunderstanding. This guy comes across as creepy and dishonest.

  79. abyss2hope

    DBB, if you agree with excluding the word rape in the alleged victim’s testimony — ie. no, “I woke up and my first thought was holy crap, I’m being raped.” because it is a legal conclusion — then you must agree that the word consent must also be excluded since it is a legal conclusion.

  80. Kali

    “I can only speak to my own experience and how the law works in my state”.

    So you, an alleged lawyer, have not heard of cases where the defendant’s past convictions were not allowed or when the victim’s past was dragged in. But I have, simply by reading the news. Odd.

  81. Disgusted Beyond Belief

    I never meant to give the impression I am a prosecutor. I explicitly stated I was not one. I did not quite get the ‘trash’ reference, sorry. Oh, and rereading I realize I forgot to mention what it is I do, or rather, to address Kali’s question. That was not intentional. I just lost it in the several paragraphs I wrote. I actually don’t want to get too specifically into what my job is because I prefer to keep my postings on my blog and elsewhere anonymous, and if I said exactly what I do, that would make it more difficult to do so. I’m sure people here can understand the desire not to give too much personal information to strangers online.

    And abyss2hope, consent is an element (or rather lack of consent) is an element of rape (and other crimes). Rape presupposes all elements of a crime have been met. As I said before, things can get confusing where ordinary language overlaps with legality, but there’s only so far you can take it. So no, there is no problem with someone testifying that they did not consent to X in one form or another. Also, the word ‘consent’ itself is not inflammatory, so there is less reason for concern just on that basis.

    And I want to clarify something – when I say it does not concern me that this judge made this rule, I said so mostly because I don’t really think it will ultimately matter in terms of outcomes. I don’t foresee any rapists getting acquitted simply because those handful of “magic words” were not used at trial. As such, I am unconcerned. I have a daughter. She’s almost two years old. I sure as hell would not want to see her raped, and if she were, I sure as hell would want to see justice done. I don’t think leaving those words out of a trial if, god forbid, that ever happened, would prevent a conviction. So I do not mean to say this lightly or flippantly. I truly don’t think it will prevent any convictions and I’m not just saying this because I don’t think it will affect me – it does affect me – I constantly worry about my daughter – I’m a parent. And so that has colored my view of the world.

  82. delphyne

    DBB’s spending a lot of effort making long posts to tell us feminists we’re wrong. A man telling women not to worry their pretty little heads – how unusual.

    DBB if you were raped would it bother you not to be able to name what happened to you when you got to court?

  83. Kali

    DBB, you admit that prosecutors are unhappy, understandably so, that they are not allowed to use the listed words. Then you try to claim that using those words is unlikely to help in getting a conviction. The two statements do not add up. Your credibility is getting thinner and thinner.

    As for bringing your daughter into this in order to shore up your waning credibility – shame on you. IBTP denizens have enough experience with the world to know that being a father to a daughter does not, unfortunately, say anything about a man’s tendency to be a rape apologist.

  84. delphyne

    It is indeed pretty grim to bring your baby daughter into a discussion about rape.

    And Kali, exactly. The defence thought those words were important enough to exclude them from the court; they obviously believe that it will help the rapist’s case not to have the jury hear them

  85. Kali

    “so they talk about elements of x-degree Criminal Sexual Conduct”

    With your logic the word “criminal” should also be disallowed since it presupposes a crime has been committed. Similarly with homicide, robbery, burglary, embezzlement.

  86. Disgusted Beyond Belief

    Kali, no it would not bother me if I were the victim, for the reasons I mentioned. And I mentioned my daughter to show you I had thought about this and was not just assuming this would only affect someone else.

    Some prosecutors are unhappy because they are lazy and they THINK they need to use inflammatory language, as opposed to, you know, actually proving each element of a case beyond a reasonable doubt. I’d rather have a competent prosecutor who can get convictions without thinking he or she needs to resort to such nonsense. As I stated before, it isn’t needed to get convictions. Let me ask you both this – would YOU need to hear the word rape in a CSC trial in order to vote to convict if you were on the jury?

    I made no reference to anyone’s ‘pretty little head’ Delphyne, you did, however. In fact, I made no mention of gender whatsoever. Do you think my or your gender matters or should we just stick to the mertis (or lack thereof, depending on your POV) of each of our positions in this discussion? I look to someone’s arguments, not their gender. I am sad to see you do not seem to do the same.

  87. delphyne

    Hey DBB, you’re a troll. Gotcha!

    http://disgustedbeyondbelief.blogspot.com/2007/05/my-thoughts-on-feminism-as-i-now-head.html

    “One final thought here on the whole ‘Patriarchy’ concept. I could have a full post on this. Let me just say this: I think this is a word that needs to be retired, for the same reasons I think ‘feminism’ needs to be retired”

    What are you doing here at “I Blame the Patriarchy” when you don’t agree that patriarchy exists and don’t like feminism?

  88. LouisaMayAlcott

    Hey, Delphyne, great catch !!!

    Twisty’s at the vet so we’ll have to endure this fuckwit until she gets back, but I’m sure she’ll take him out then.

    Geezuz, the Mandos’s just keep coming back.

    Lock the doors and they climb in the window.

  89. delphyne

    Can’t take the credit, someone sent me the link. Still, the signs were all there.

  90. Kali

    “Hey DBB, you’re a troll. Gotcha!”

    Good catch delphyne. I kind of suspected it. Typical “liberal dude” arguments.

  91. abyss2hope

    DBB:So no, there is no problem with someone testifying that they did not consent to X in one form or another. Also, the word ‘consent’ itself is not inflammatory, so there is less reason for concern just on that basis.

    Actually, the usage I was referring to is the assertion that the victim consented — either by the defendant or by witnesses. Just as the victim is expected to show rape rather than say it, the defense witnesses and defense attorney should be required to show consent rather than telling the jury there was consent.

  92. Rainbow Girl

    Wow, another lawyer here to bring “neutrality”-he’s not biased by the pro-rape or the anti-rape agenda. My views must be so out of line if I actually admit to being anti-rape, or is that anti-sex now? How beautiful for us to be privy to this kind of gods-eye view objectivist epistemology. Oh wait, I’ve talked to other overprivileged white dudes before, this is nothing new or special.

    This move oppresses people inside and outside of courts. I like to think that when I tell someone he can have sex with me, I am being pretty straightforward. I see now that my consent is not required for that.

  93. wendyann

    The signs were all there from the beginning with this dude. Oh, but don’t worry, girlZ, he has declared no need for feminism! Gah, dickheads like this make me want to hurl.

  94. Twisty

    DisgustedBeyondBelief, thanks for reminding the gang, in your fucking pedantic asshole way, how much men hate women. We just don’t hear that enough! Especially from chickenshit anonymous men. There are hardly enough of those on the internet!

    BANNED!

  95. Belle O'Cosity

    I worship kali!

  96. Belle O'Cosity

    Oh and abyss and Louisa May Alcott and Rainbow Girl and Delphyne and of course Twisty and all the other awsome folks here. Thanks for articulating in a much better way what I have been feeling about this.

    This is the place I need to be when I feel worn out by this stuff. At least I know others are out there who feel like I do. It can be hard to live in a world with no back up of one’s convictions.

    I live in a tiny town in AK, one of the most conservative places, and dude friendly places, in the USA. Rape is outrageously prevelent here and people won’t talk about it. The constrictions on language are not going to help at all. The word rape is not the worst part of this. As others have pointed out, it is sexual assault, rape kit and all those things that are supposed to happen when you report that are the most chilling to me. Why get a sexual assault kit done if it is not even relavant in court? This sets us back 100 years.

  97. chingona

    Re: anonymity for defendants accused of rape

    I don’t believe rape victims have anonymity in court. Newspapers don’t use their names because of the shame associated with the crime. At the newspaper where I work, we have occasionally not named convicted rapists because their victims were their daughters and to name the rapist would identify the victim. But the names were available in the public record. I did cover one sentencing in which the victim, a minor, was identified by initials, but the lawyers kept slipping up and using her name anyway.

  98. chingona

    Which comment is woefully late to the thread, but my point is there really is no “integrity” to anonymity for rape defendants when we name every other alleged whatever. The discrepancy is not one of our legal system, but of our societal norms.

  99. Mar Iguana

    “Mar, I don’t think he said which side he was arguing for.” – kali

    Oh dear. That’s what I get for assuming Disgusted Beyond Belief was glad that all those rapists were locked up. I’ll read this person’s, and the rest of the comments, more carefully.

  100. Mickle

    Banned?!? But I wanted to ask him how “rape” is a legal conclusion when it’s not even the legal name for any crime in this state? Or given any definition in state law?

    Good point abyss2hope. Especially since “consent” – or rather “without consent” – is described in great detail in Nebraska State Law. (Does he get to say “with consent?” Does she get to say “without consent?” At what point does any of this approach logic as we know it?)

  101. DonaQuixote

    Really, I understand why ya’ll were annoyed with DBB’s attitude. Compared to the “dialog” on Broadsheet, though, your debate with him was extremely enlightening. At least before the fifth or sixth time he claimed absolute objectivity.

    I think I’m staying off their message boards for a while. I’ve just about blown my stack completely, to the point that I actually feel thankful when antifeminist men are merely pedantic and not outright offensive.

    Seriously, I think the what about the menz folks have successfully driven away 90% of their feminist friendly audience by now.

  102. Vaetilde

    It amazes me the ever decreasing quality of men in America today, that they feel their only options for sex is with drunk women.

    How sexy can a drunk woman be?

    For that matter, a drunk person isn’t particularly sexy nor can sex be fully appreciated while intoxicated, IMO.

    My boyfriend has gotten drunk before and wanted sex and I said to him,”Roll over and go to sleep and we’ll talk about it tomorrow.”

    Otherwise, sober, he’s free game. LOL

  103. dairon

    Did anyone see DBB’s response to this, too? “Ooh, I got banned, they’re so unreasonable, I can’t understand why, but really, what did you expect from IBTP?” *sigh* Try, “Because this is (supposed to be) our safe space, away from assholes who keep telling us to ‘be more objective’ when discussing our own horrific victimization.” (And yes, potential trollers, once a woman’s been raped, any discussion of rape *is* about her.) But look, he’s still willing to talk to us on his own blog, if we are willing to be reasonable with him. Well. Isn’t that swell of him. There’s your chance, Mickle.

    You know, I’ve only been reading a couple of months, but in that time I’m trying to remember a single post of blaming substance that wasn’t derailed by some asshattery.

  104. dairon

    Oh, sorry, in fairness I should say that he said he would answer *all* questions, not just reasonable ones. Revenge trolling, anyone?

    Back to the topic, though, I *do* think it’s awful that the woman can’t use the word “rape,” but it’s just weird that she can’t use the term, “sexual assault kit.” I mean, seriously…what else is she supposed to call it? The sexual-intercouse-that-allegedly-took-place-without-consent-kit? Or is this a meandering way of forcing the prosecution to not present evidence?

    Also, kudos to the idea of bringing the history of the defendant’s porn consumption into the trial. If you can bring other things, why not that? I would think that consuming a few hours per day of material depicting violent, predatory acts similar to the one the defendant is accused of would be pertinent evidence.

  105. Laurel

    And from the ‘Ironic, Innit?’ file: Did anyone else catch the fact that the attorney for the rapist in the linked Salon story is named Clarence MOCK.

  106. nightgigjo

    (And yes, potential trollers, once a woman’s been raped, any discussion of rape *is* about her.)

    dairon, I love you.

    I posted on Ye Forum about something that happened to me last weekend, where this sentence of yours is now particularly welcome. Thank you. I needed to hear that.

  107. TP

    Why is it that male trolls are so incredibly long-winded? They keep coming back, relentless in their desire to prove themselves right, too. They never learn anything, and they never admit they were ever wrong. IBTP.

    I was wondering about that rape assailant being anonymous idea when I asked it, and I knew I’d get a logical, common sense response from someone that would make me feel stupid for not realizing it first.

    Am I patting myself on the back for recognizing that I learn here, unlike a troll, or am I kicking my own butt for being so stupid as to hope it might be something that would get men convicted of rape more often? Excuse me for posting! Ha!

  108. LouisaMayAlcott

    TP said:

    ” * * * to hope it might be something that would get men convicted of rape more often?”

    I think it’s an *excellent* idea.

    Considering that we’re getting no rape convictions now, or even being brought to trial, it’s worth a shot.

    Totally a pragmatic thing.

    Mind you, for that very reason, I doubt that it will ever be done. Men have a system that works for them very well already. Why would they want to change it, to risk even a *few* more males being convicted?

  109. PhysioProf

    For what it’s worth, I posted the following at DBB’s blog. I doubt it will give him a clue, but at least it provides some balance to the posters there who cheered on his delusional explanation for why he was banned:

    The reason you were banned is that you failed to understand–even after it was explained to you–that you were addressing a question that is not relevant to the mission of IBTP. The mission of IBTP is to deconstruct the role that superficially neutral and unremarkable aspects of society play in implementing and reinforcing patriarchy. In light of this mission, the question is not whether it was typical or legally justifiable for the judge to have made the ruling he did. Rather, the question is whether that ruling served to reinforce patriarchy.

    A number of posters argued that disallowing the use of the term “rape” while allowing the use of the term “sex” reinforces patriarchy, because “rape” implies forcible, non-consensual activity, while “sex” implies a participatory activity. You were banned because you didn’t address this relevant argument, and kept repeating a non-relevant argument.

    To put it more simply, the discussion in that thread was not about whether the judge’s decision was legally justifiable. The discussion was about whether it was patriarchal. And it was not up to you–a relative newcomer–to attempt to change the discussion.

  110. Rumblelizard

    I for one am tired of feminists having to explain things to clueless men and trolly trolls here and on other feminist blogs. Twisty has explicitly stated that IBTP isn’t the place for the clueless to be educated in the basics of feminism.

    If a poster don’t want to post by this community’s rules, then they aren’t welcome in this community. It’s not our job to help them understand why the mean, mean blamers hurt their fee-fees.

  111. rootlesscosmo

    A belated observation, but maybe relevant: when porn and other kinds of hate speech are identified as causing harm, their defenders often answer that, after all, they’re (to quote the title of a terrific book by Catherine MacKinnon) “only words.” This Nebraska judge and his defenders, on the other hand, seem to have no problem acknowledging that words–mere words, only words–can have powerful consequences, so powerful that they need to be banned lest they undermine the workings of justice.

    Hmm.

  112. smmo

    Absolutely rootless, a seeming inconsistency which makes perfect sense to supporters of patriarchy. Because their goal is maintenance of power, above all else. Saying the word rape in the courtroom matters, saying it in porn doesn’t, because that is what protects men and their holy right to get off.

    DBB proves once again my little theory (theorette?) that libertarians are assholes. But he’s found his posse over at Octogalore’s place, he and she and Mandos are having a “Twisty is such a MEANY” pity party. I’m surprised the internet didn’t break under the combined weight of their collective verbiage.

  113. rootlesscosmo

    I really like “theorette”–so much more dignified than “hypothesissy.”

  114. smmo

    Thanks rootless. It’s also more feminine, didya notice?

  115. PhysioProf

    And it turns out that DBB is also almost certainly a Nice Guy:

    “Not to equate this to dating, but this reminds me of something back in the ancient days when I actually was in that horrible thing called ‘dating’. I met a woman and we seemed to hit it off ok. That is, until she started accusing me of all sorts of horrible things. Every time I did not return a phone call within a short time, she accused me of avoiding her, or going out with someone else, or things far worse. Turns out, she had been treated pretty damn badly by some men in the past, who did exactly that. So it was understandable. But I wasn’t those men. She was projecting onto me everything bad that had happened to her in the past.”

    This was from a comment of his own to his “Waah, I’ve Been Banned!!” post at his blog.

  116. Rainbow Girl

    “Twisty is such a MEANY!!”

    Hhaaha, it’s like a Dr. House episode, she’s less-than-polite but it doesn’t change the fact that she’s right.

  117. Mar Iguana

    “Sex is to rape, as kissing a hand is to a punch in the mouth.”

    http://www.now.org/news/note/062707.html

    Cheuvont is just one of the many cretins appointed to our courts, even the supreme one, by bu$hco with the express goal of returning women to the good ol’ days of Comstock Law* and chattel status. Every judge appointed under the bu$h regime needs to be impeached. Now.

    “In another case, Southwick converted his own homophobia into Mississippi law — supporting a custody change from the primary-caretaker mother to the father because of the mother’s ‘homosexual lifestyle.’ Southwick decided that Mississippi had “spoken on its position regarding the rights of homosexuals in domestic situations” in banning same-sex adoption, and he extended that reasoning to deny custody to the birth mother, insisting that a parent’s ‘morality’ had to be considered in a custody case, and deeming it his prerogative to keep this child from being “reared in a lesbian home.”

    Good. Grief.

    *I found this movie, “Choices Of The Heart,” in the dollar store the other day. One of the best dollars I’ve ever spent. I watched it with a friend and she was stunned that women were treated like gaud-ordained brood mares this recently in our history:

    http://movies2.nytimes.com/gst/movies/movie.html?v_id=251947

    This crap makes me crazy-go-nuts.

  118. Twisty

    “To put it more simply, the discussion in that thread was not about whether the judge’s decision was legally justifiable. The discussion was about whether it was patriarchal. And it was not up to you–a relative newcomer–to attempt to change the discussion.”

    Hey PhysioProf, nice blaming.

  119. maribelle

    I went to and added my two cents over there, too. For what it’s worth.

    And PS doesn’t the moniker “Disgusted Beyond Belief” just scream neutrality?

  120. PhysioProf

    Maribelle, I just checked out what you posted at DBB’s blog. It was beautifully written and right on target.

  121. maribelle

    PhysioProf–thank you for the kind words. But I defer to you–you led the charge. I just brought up the rear.

  122. delphyne

    Now I’ve posted over there and I *never* post at trolls’ blogs. The self-righteous whining is rather special though. Do these fuckers not read the rules or something?

  123. PhysioProf

    I strongly suspect it is a matter of willful ignorance.

  124. Cruella

    We have a new system in the UK that’s really helping with rapes. We’ve decided that raping a twelve-year-old isn’t worth worrying about. We prefer to wait til our sickos get the chance to rape a two-year-old. Grab a sick-bag before you click this one:

    http://cruellablog.blogspot.com/2007/07/twelve-year-old-was-asking-for-it.html

  125. JD

    “A victim’s past history is inadmissible. The only way you’d ever get that in is in very unusual circumstances”

    ok, I know I’m incredibly late in adding to this here, but I also happen to have a legal education, and while DBD’s discussion of elements and whatnot was more or less accurate, this particular statement is absolutely, completely, flat-out wrong.

    The federal rules of evidence–and rape shield laws in general– state that evidence of the victim’s past sexual history is inadmissible UNLESS it is (1) past sexual conduct with the defendant, or (2) exclusion of the evidence would violate the defendant’s constitutional rights.

    Exception number 1 is a problem because you wind up with situations where the fact that a woman consented to sex *once* (or twice or whatever) can then be used to prove that she consented to sex *always* (because the male has the *right* to her sex for all time if she consented once).

    Exception number 2 is the sneaky backdoor where *everything* about the victim’s sexual history gets to come in if “exclusion would violate the defendant’s constitutional rights. What this essentially boils down to is that the defendant wishes to prove that he reasonably believed that the victim consented, so he introduced evidence that she is a whore because she has had consensual sex with other men, so it was perfectly reasonable for him to assume that she wanted to have sex with him, too, even though he didn’t bother to ask.

    So, uh, if anyone comes back and reads this, that’s how “rape shield laws” “work” in practice, hope it was helpful.

  126. Belle O'Cosity

    For anyone who happens to take a look back at this thread, there is some good news. The woman is not going to let this fly and has brought in a lawyer to fight the ruling. Sadly, she might now face jail for contempt of court. All I can say is I definitly hold that court in contempt, I guess I’ll have to go to.

    http://www.49abcnews.com/news/2007/jul/11/woman_refuses_obey_judge_who_banned_word_rape_tria/

  127. Crys T

    Regarding the newspaper that printed the article: since when is it acceptable to print a rape victim’s name?

  1. Hit List, continued « Editorializing the Editors

    [...] Twisty and Feministing have more. [...]

  2. Feminist Law Professors » Blog Archive » “A Nebraska judge bans the word rape from his courtroom.”

    [...] Read Dahlia Lithwick’s article, “Gag Order” at Slate for the details. Twisty has some related commentary at IBTP. [...]

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