This is a very interesting article, but it seems to ignore some important points. Two reactions:

(1) There are in fact legal questions raised by the use of the word "rape" by a fact witness. Unfortunately, it isn't clear from this article or this links whether the judge's decision was based on a belief that "rape" was an improper statement of legal conclusion or a general "prejudicial impact" rule (i.e., NE's equivalent of FRE 403, for those keeping score).

OK, so what--just because something raises an issue doesn't mean that's how the judge should come out, right?

Well--and I was very surprised Lithwick didn't mention this--there is a strong pro-victim reason for a trial judge to err on the side of the defendant in close evidentiary rulings. Double jeopardy means that appeal is a one way street--prosecutors generally cannot appeal aquittals, but defendants can of course appeal convictions. That means that if the trial judge went the other way and denied the defense motion, there's some chance that this would be reversible error and that the victim would then potentially have to go through another trial. This is a nontrivial matter--as the complainant in the NE case herself illustrates.

In short, to the extent that a trial judge thinks that the exclusion of the word "rape," while inconvenient, is unlikely to have a significant impact on outcome, there is good trial management reason to come out the way he did. Victims will benefit from that.

(2) Lithwick's just wrong when she says that this is unique to rape because it is emotionally charged or some such thing. Her examples are "murder" and "embezzlement." Murder's obviously not a good example, since rarely is there a question as to whether a murder occurred. Where there is, such as a causation case, I could very easily imagine a ruling prohibiting fact witness from describing a series of events as a "murder." In rape cases, by contrast, there are cases where "objective" facts are ambiguous and so allowing fact witnesses to state legal conclusions is a potential problem.

Embezzlement seems closer because it may in fact get to whether the defendant's taking of money was improper. I don't know much about embezzlement cases, but I know a lot about criminal tax cases, which raise similar issues.

International tax is generally not an emotionally charged issue in society (despite its many hot-blooded, passionate practitioners). It would certainly be reasonable--and not at all unexpected--for a judge to not allow a fact or expert witness to use words that characterize a transaction--i.e., a "dividend," a "liquidation" or a "sham." All of those are legal conclusions and potentially impermissible testimony, despite the fact that witnesses often have difficulty describing the transactions because there's no easy substitute for the words in question.

Finally, putting (1) and (2) together, it's important to remember that there's a reason that trial judges get this discretion. The balancing of the interests of the witnesses and jurors in using language that makes sense against the interests of the litigants in not allowing fact witnesses to state legal conclusions varies case by case. Especially in rape cases. Sometimes, as in Isonomist's example many posts below, it's not an issue. But at other times, the "objective" facts may not support an inference and witness testimony using everyday words may in fact be improper. In such instances, both justice and victims' interests may be served by rulings such as the NE one.

Your further comments, esp. as to the victim (see also Isonomist's comments), are interesting. It also is interesting that many fraysters split on the issue, some disagreeing with the stance of the article.

It is important to note that the charge was "sexual assault," and that term (even "sexual assault kit") was also barred. I find the emphasis on 'rape' by some here a bit dubious.

Likewise, "rarely is there a question as to whether a murder occurred" also raises a red flag, esp. given we are focusing on language here. "Murder" as compared to "manslaughter" etc. is often a matter deeply in question.

You seem to be saying that it is clear that someone died in some sort of criminal matter, but since "murder" suggests a penalty much greater than various alternatives, it seems important to guard against its misuse as well. If we do not, but do so in cases of "rape," it raises a red flag in my mind. After all not all sexual offenses are "rape" either, and the common sense understanding of the terminology as one post notes is particularly explosive.

-j

I think we also need to bear in mind that rape is not, in itself, a sex act.

Some time ago, while I was recovering from a rape (if one really does recover), I heard a group of men in prison, men that had been found guilty of rape, discussing the crime. They agreed that rape is about control, not sex.

Sex was the means used to gain control, but it really wasn't about sex at all. They had people they could go to for sex. They wanted the feeling of control over women so they committed rapes.

I cannot fathom the horror a victim in court must feel while referring to that act as sex. Sure, there are other ways to say the same thing, but why should a victim need to work that hard. Let's see . . . "I woke up and he was on top of me, controlling me with his penis?" Nope, that's definitely not it.

I could try, "I woke up and he was on top of me, vilely forcing himself into my most sacred of bodily spaces". But the judge, and certainly, the defendant's attorneys, would take issue with that because I relayed the act as "vile", which is my opinion as a victim, just as the word "rape" is the opinion of a victim.

Nope. Sorry. The courtroom is where we decide if the complainant's testimony proves an illegal act occurred. As cited in the WP article, a mugger doesn't take a loan.

I cannot wish this painful and horrifying act on the judge. However, if he is ever a victim of rape, I'd like to hear him describe it as sex.

Next thought . . . I hope the women of Nebraska's "Take Back the Night" movement ensure this judge is never re-elected to a position of power. This single act proves he is guilty of mental rape to the poor victims who fall prey to his courtoom.

(1) I think the Fray focused on rape because Lithwick did. The issues are the same for all terms.

(2) Fair point about murder/manslaughter--not a common issue, but not as rare as I implied. But that sort of gets to my point about this being case-specific. Where murder/man is an issue, I don't think it would be appropriate for fact witnesses to refer to a murder. For example, "I saw him murder the guy" doesn't contain a problematic statement of law if the issue is identity of the perpetrator (even if it is technically improper). If the issue at trial is whether the actions constitute murder or manslaughter, it would be an inappropriate statement.

I'm not sure I understand the rest of your post. My points were that (a) double jeopardy gives pro-victim reasons for trials to be managed this way and (b) that the problem of fact witnesses testifying to legal conclusions is not unique to sexual assault cases. The relative severity of punishment doesn't weigh into it.

None of this should suggest that this is an easy call--it isn't. It's a weird motion and a weird order. But I don't think Lithwick did an especially good job covering the waterfront here.

The article did note the issue went beyond one word (a word some argued was particularly emotional), including a ban on "sexual assault kit" and fears that the only thing left was "sex" which implies consent. I think the breadth of the ban is of some relevance as is the focus on only one word by some fraysters when the article was broader.

As to severity, more my point as to use of "murder" when what is at stake is or can be a lesser crime which merits a much lower punishment. Thus, use of "murder" would raise problems in that sense.

-j

PS Seems Dahlia liked your idea ... hope she gives you story credit if she writes a column in the issue of multiple opinions.

I read elsewhere that the judge also banned the victim from using the word "forced." I can understand the legal arguments about the words "rape" and "sexual assault," but it doesn't make sense to me that the victim can't say from her point of view that she was forced. Why is the accused allowed to say he had consensual sex and thus is not guilty - that also calls for a legal conclusion.

I also wonder if people are allowed to say they were "stabbed." That sounds like a legal conclusion as well. Is there is restriction on the word "stab"?

I'm unsure how the word "stabbed' is a legal conclusion. You are guilty of "assault and battery" not "stabbing." You can "stab" legally.

I'd also note he is presumptively "not guilty." I'm not sure about the context of the ban on "force,"* but I do question your hypo. He might say "she consented," but the "therefore not guilty" very well might be a statement of law that is not his to make. In fact, I doubt it is.

In fact, since some have deluded ideas about 'consent,' even an honest belief of consent will not let you off the hook necessarily.

-j

* For instance, an issue here is the fact she was not competent at the time and he took advantage of the fact to illegally sexually assault her. To the degree she was not aware of what was going on, perhaps she could not know what he did. She did not know he "forced" her. Or, "force" as the word is legally understood in the "sexual assault" statute at stake here.

But, I don't know the context, so just toss that out. Might be wrong given all the facts.

Back in March, I competed in a mock trial in Chicago, in which the use of the word "stab" became hotly contested. It was a fake criminal trial, in which the defense could claim that the victim had impaled himself by charging a knife-wielding roommate.

The defense didn't think it was appropriate for us to use the word "stab" because they were contending that it implied force. The dictionary came out ("to penetrate with a sharp object") and an intense semantic debate raged.

My position was that, if you can say you "stabbed" your gums with a toothpick without implicating the Fifth Amendment, then surely you could "stab" a human being without necessarily conceding criminal intent.

Use of the word was ultimately allowed. I was surprised that it was even an issue. The underlying assumption struck me as contemptuous of juries as independently reasoning minds.

The underlying assumption, unproven here, is that jurors are so easily manipulated by a single word, "RAPE!" (or choose any other conclusory offender), that they cannot be trusted to hear it, or indeed any word or phrase closely related to it. My 25+ years of experience as a prosecutor has taught me otherwise. My last rape trial concluded in Sept. 2006. "Rape" was said about 4-5 times and "Sexual Assault Response Team" once, out of a record of ten days of testimony and argument. The other five rape trials I've done would be similar. The jury's exposure to the offending word, in my experience, has not been that significant. The prosecutor, or witness, who tries to make a point by using the word too often loses credibility with the jury. A small sampling to be sure, but in my experience it is not going to be a factor in how a jury decides a charge of rape.