While Ms. Lithwick is generally on the ball with her columns, that ball was dropped in this instance. In her article, she ignores the vital and rather obvious distinction between cases where there is a question whether a crime has been committed and those where the issue is who perpetrated a crime that both sides concede occurred.

That is, if the defense is not arguing that a rape never happened, describing the sex act as such is not likely to be prejudicial. (this would be the case where the question at trial is one of identity - is the defendant the person who raped the victim, or was it someone else.)

However, where the defendant's case is entirely based upon the assertion that the sex was consensual, allowing the victim, or anyone, to describe the act as rape (a legal conclusion) may very likely prejudice the defense. It is for the jury to decide whether the acts allegedly committed by the defendant constitute rape.

Whether the term rape should be banned in this second type of cases is arguable, but is clearly a qualitatively different situation, and should be treated as such.

Let's consider a case of murder. The prosecution has no dead body, and only a circumstantial case against the accused. Is the prosecution not allowed in such a case to charge "murder" and refer to the crime of "murder" during the trial?

I can understand -- and certaingly agree with -- not allowing the prosecution or its witnesses to refer to the accused as "murderer"... or, "rapist"... this is definitely a "fact" for the jury to find. And it's quite often the jury's job to decide whether a crime was even committed where there's no physical evidence of a crime. But, does that mean the prosecutor oughtn't be allowed in court to say the crime charged?

I understand your point, although murder is perhaps a bad example - it is the rare murder case where the defendant claims "I did kill the victim, but I did so legally." In such cases, it may be improper for a witness to say he or she saw the victim "murdered" as opposed to "killed" or "shot."

I don't think the judge is in the case was banning the word rape as used in the charging documents, or using the word rape in the context of informing the jury of the charges, etc. I believe it simply refers to the prosecutor asking "so after he raped you..." and the like, or the victim saying "when I woke up, I was being raped..." etc.

If we're only talking about situations where there's doubt as to whether a crime was even committed, and the order only applies to the prosecutor's examination of witnesses, then I'm a bit more sympathetic. But, I still think that a victim ought be allowed to make the charge "rape" while in the box -- the defense cross ought be a sufficient response.

Just one more case where the victims hands are tied putting everything in favor of the criminal.

Ms. Lithwhick got it right, and putting it in the context of the depressing language wars of the nineties was not excessive, either. You have a trial to determine whether a crime has been committed, and by whom. How do you try someone for sexual assualt without allowing anyone to use the words "sexual assault" in the courtroom? I can see banning the word "rape" in some instances as unnecessarily inflammatory, though maybe i can't -- maybe we just have to learn to live with inflammatory language without bursitng into flame every time we're in its presence. What i can't believe here is the idiocy of staging a trial for sexual assault that doesn't allow the act itself to enter the courtroom, via any directly descriptive language. That is just too bizarre for belief. Is there something in the water in Nebraska? I'm aware that there's a part of the culture that doesn't think "date rape" -- sex with a nonconsenting comatose woman -- is rape at all. Mildly scandalous, caddish behavior, but not rape. If the judge in this instance is of that belief he should recuse himself from trials like the one he weirdly reconstructed as a trial of the english language. Let him take up the cause of date rapists in the legislature, and see if he can get some relief for them written into the laws of Nebraska. What he's chosen to do instead is simple cause for impeachment.

However, where the defendant's case is entirely based upon the assertion that the sex was consensual, allowing the victim, or anyone, to describe the act as rape (a legal conclusion) may very likely prejudice the defense.

For crying out loud, GET A LIFE. There is no need whatsoever, in any case, for the judge to micro-manage the language. And in doing so he likely harms the credibility of the accuser in the very sort of case that hinges on witness credibility.

Unfortunatly most of these posts assume the guilt of the accused. this should not be an option for the Judge. In this case, based on the info provided by Ms. Lithwick the alternate sceanario is the both parties where drinking and left the bar together. They went to the defendants home and had sex. at some point the accused said stop and the defendant did. The accused does not recall anything after having drinks. Including leaving the bar which she according to witnesses did of her own volition. Now the only determination to be made here is was she drugged or just too drunk to remember what she consentually participated in. Imagine for a moment the other side you go to a bar meet a woman who you find sexy you both get drunk and go bak to your place and have "a good time". A some point she says no and you immediatly stop, your dissapointed but respect her wishes. next thing you know you are accused of rape. your life is and reputation is ruined and if a jury decides that all men are rapists and all women are innocent you are going to prison. This would be as devistating as being raped.

The word Rape has been twisted by the legal system to mean too many things and for many of us it brings images of a violent forcefule act, it's origional non botanical dictionary definition. In this case the equally descripive but less inflamitory statement is not hard to figure out.' I came to and this man was on top of me penetrating me ...' It's up to the jury in this case to decide if this was rape. The possibilities are 1 someone drugged by someone else and raped 2 someone who had second thoughts in the middle of the act and falsely accused 3 someone who by her own choices became non competant was a willing partener and upon regaining competance beleives she was raped. Both 1 and 2 have one victem of a crime 3 has 2 victems of circumstances and bad choices.

The judge was right

Well, while your argument might be that some of the legal code is flawed, it is the case that at least in some states (I know specifically in California), the mere fact that the victim is intoxicated and so compromised in his/her ability to resist makes it rape. Which in many circumstances makes sense. If a person is so drunk s/he can't stand, it does seem predatory to have sex with that person even if they are unable to violently resist. I agree that from a "how should I behave" point of view, things get more complicated if both parties involved are intoxicated. That said, it is often the case that while people are less inhibited while intoxicated, they don't usually do things they would never otherwise do or even consider.

As for the specifics of this case, I can't say what happened...but at least in some states the plaintiff would have a case to make based merely on the fact that she was intoxicated. Though the article did not mention whether she claims that she specifically told him "No" to begin with, I would imagine that the grounds for the law suit have to allege that the defendant violated a specific law which could either be that he forced himself on her after she resisted or that she was unable to resist in the first place. The law, in my understanding, does not require further proof that the assailant intentionally impaired the victim's abilities by drugging her.

I realize that popular media often makes this distinction...portraying "bad party girls" who end up half comatose while some guy has sex with her as complicit in their downfall. This might be a moral judgment that you agree with. But the law necessarily has to be more explicit than the sliding scale of society's morality...which gets back to the opening paragraph of this article.

Some of the male posters here seem to have way too detailed a knowledge of date rape issues to claim impartiality. We all have opinions, don't we? But we don't NEED them. Either it's a crime, or it's not. I read an article last sunday on the NT Times oped page, that mocked the Antioch College code for sexual consensuality -- you know, the one where the kid is supposed to stop repeatedly and ask, at every stage of the grand seduction, for consent. That, according to the mope writing the article, was responsible for the ultimate bankruptcy of the college. What kind of pervert would screw a comatose woman anyway? What's the Christian position on this? It has to be at least a hundred times worse than any consensual version of sodomy and just about as bad as screwing a child. I would say jail time is an appropriate remedy. And all this nuancing about alternatives A B and C is just Johny Cochran bullshit. Sorry OJ, guilty is guilty.

If you click on the links you can get more info about this case here are the salient points as I see them

Girl goes to bar to participate in costume party as Jessica Rabbit

after having two drinks meets guy has two more drinks and does some kissing.

leaves bar with guy under own power with guy

wakes up next morning during the sex act and says stop which he does immediatly saying don't you remember last night

after laying in bed for a while he takes her home, later she goes to hospital saying she was raped.

during the first trial she claims to not remember anything after meeting man but defence points out that she told nurse that the rape happened at 2:00 am claiming to have pulled herself to consiousness just enough to note the time.

The actual point being argued by the prosecution was not that she didn't say yes but that he should have somehow known that she was too drunk to consent

the man has been acussed of this before (it doesn't say wether the accusations came out before or after her accusations became public knowlege.

now for an alternate possibility as to what happened

A girl goes to a bars to drink and have a good time

a boy goes to bars to drink and have a good time - they meet and have a good time while drinking some more,

as they drink some more they decide to have a better time at his place, the important point in this hypothetical is that both are impaired at this point, and sex occures.

they fall asleep and the next morning he tries to wake her with sex she wake up to this and having the next morning fuzzies doesn't remember the night before says stop and assumed that she was being raped.

now I'm not a big drinker being something of a control freak and not liking the feeling of being out of control but I have known many people who do not remember a thing they did under their own volition the night before.

So is it not possible for these two to have both gone to a bar and gotten drunk and in their uninhibited state she was to the point that thru her choices she was awake and actively participating even though arguably no longer competant to consent and he was too drunk to be able to determine that she was no longer competant to consent.

apparently by your definition this is rape and the woman bears no responsibility for her actions only the man. I know he seems to have been in this situation before but there have most likely been times when both parties where good with the results. As I said befor getting drunk is not a great idea as you tend to loose control but it is a choice that many make and only they should bear the consequences of what happens while they are drunk.

That said if he was sober this would be a different story. If she was passed out during the act this would be a different story but she was aware enough to notice the time. If he appeared out of the blue and raped her this would be a different story

But the judge ruled in this specific case where the issue at hane was not even that she didn't say yes but that he should have known that she was too drunk to consent that rape was to prejadicial a word. narow ruling- one case- judge right.

It's not that I know so much about date rape to be impartial i just prfer trying to get all the facts befor i convict someone. How nice for you that you don't need those pesky facts to make up your mind. Each story is it's own each with it's own set of realities each side with it's own view of how the facts played out. these are not all the facts presented. And it is possible that this guy is a predator but we shouldn't assume that up front

"Wake her with sex"? That's just messed up. If you woke up next to a woman you didn't recognize, would you seriously think it was OK to invade her body? "You're in my bed, your ass is mine!" Even if you've gone on a few sober dates with a woman and had sex once or twice, that doesn't give you some kind of right to just initiate sex without permission.

I just have to note on the "wake with sex"... if you actually mean commence penetration before the person is awake as opposed to just starting some foreplay, you (meaning "one") better be damn sure the sleeper is cool with that, and waking up next to a stranger hardly qualifies.

In response to, "What kind of pervert would screw a comatose woman anyway?" allow me to submit, ummmmm, a married one?