Why does a potential rape victim have to say she had sex, implying it was consensual?

Question

Here is an article about a trial in Nebraska.

http://www.slate.com/id/2168758/

Why is she note being allowed to really give her side? And why does the defense attorney say that te victim, yes victim, does not know if it is rape. Surely she knows if she said no or not?

So, Redisca, by extension, in a murder trial the word murder should not be used? A mugging you can't say mug?

Besides, the victim is forced to use the words sex or sexual intercourse here which has the implication of consent. It is loading the case agianst the victim.

Answer 1

This judge is totally wrong. This is such a heinous crime and already difficult enough for the victim to come into court to face a criminal who violated her body in such a brutal and cold way. He almost to me is like that screwball judge in Vermont with the child abuser being let our so easily. We take our must horrific crimes and forget in any way to protect the victim and almost make it easy for the defendant to win.

Answer 2

Because in a courtroom, the word "rape" represents a legal conclusion; and it is prejudicial to allow parties to express legal opinions -- since the only trier of law in that courtroom is the judge, and the only trier of fact is the jury. We may not like it, but there are good reasons why courtrooms do not function like chatrooms. In a personal injury trial, for example, you cannot bring up the issue of insurance, and in some courtrooms, just saying the word "insurance" results in a mistrial. Sticking to the rules of evidence and avoiding linguistic pitfalls can be very frustrating, but it is for the greater good. Think back to the Duke case. What if the alleged rapist is in fact innocent? Is it fair to present it as a given to the jury that rape occurred?

PS: Yes, it would be wrong to use the word "murder" in a murder trial. It would be wrong, for example, to ask "What time, did you say, you saw the defendant murder Mr. Jones?" Instead, you must ask "What time did you see the defendant shoot/stab/strangle, etc. Mr. Jones?"

I agree with you that "sex" is also a loaded term to the effect that it implies consent. However, that does not make the word "rape" any less loaded inasmuch as it implies a LACK of concent -- an essential element of the crime of rape which the prosecution must PROVE beyond reasonable doubt. Something that's subject to proof cannot be presented to the jury as a given.

Answer 3

Interesting read. All very good points, and Redisca's points are valid.

"Rape" is what the prosecution has to prove it was, you cannot just repeatedly say (in court) that is what it was - it is kind of like using the word you are defining in the definition. "Running: (verb) to run"

It is a slippery slope either way.

If the word "rape" is continually used, then it can prejudice the jury and guilt is almost assumed. The prosecutor should have to show each of the elements of rape, without eliciting any repeated "conslusion" that is what it was. (Yes the individual knows they were raped, but they have to PROVE it, not just say it). A good attorney (prosecutor) should be able to question the witness to show that the elements were met, without the word rape being used. Until guilt is proven it is "alleged rape."

However, as others have pointed out, if you ban the use of too many words (just because they are negative), even by witnesses, then we start sliding towards "desensitizing" the act, jury, courts, etc. Although I disagree that "sex" connotates consensual, in and of itself.

Answer 4

This word probably won't get through the filter so I've self-censored.

Rather than 'having sex' which carries the implication of a shared activity, if not actual consent, the verb 'f**k' should be used. With that word, you can describe the man's actions without implying that the woman was co-operating/assenting AND without implying that she wasn't. 'F**king' is something that a man does TO a woman, while 'having sex' is something a man and woman do together.

The English language is vastly rich and has numerous shades of meanings both within and between words. The judge may be right to exercise caution to prevent a miscarriage of justice, but the lawyers are lacking in education if they think banning half a dozen words reduces the options to just one.

Answer 5

If the word rape really does influence the jury, I wonder why only less then 2% of all rape cases result in convictions.

Answer 6

That's insane. How can he remove the word rape from a case when that's what the charge against the defendant is called? Totally ridiculous!

Answer 7

Redisca gave you the reason.

It's just that simple. The trial is to assess guilt and liability. Inflamitory words used at trial are grounds for appeal on legal error.

Answer 8

no longer rape: individual knowingly, willingly, and asked for the medicine understanding that it can cause them to do issues they could no longer have executed sober. certainly rape: individual unknowingly, unwillingly, and did no longer ask for the medicine that would cause them to do issues they could no longer have executed sober. And maximum probably if the medicine rendered them subconscious(which you probably did state earlier you suggested as the "poisoning" no longer rape) and that they did no longer have the possibility to consent or no longer consent. >>probable rape: sufferer is **no longer unsleeping** (may well be rape if the sufferer says that's whilst they awaken.) no longer rape, yet nevertheless a criminal offense: The sufferer grew to become into unwittingly positioned below the effect of drugs earlier consenting. i think of of this as poisoning, this is a severe crime, yet isn't rape.<<

Answer 9

It shows where this country is heading with the justice system. The accused has more rights than the victim.

Answer 10

OK the judge is either a moron or has other information about the situation, but that won't stop her from saying,"this guy stuck his penis in my vagina without my permission"
jurors will get it.