Jurisprudence

Re: Just the Facts, Mam

olso1969 — Fri, 13 Jul 2007 04:58:27 GMT

I've read some of the feminist blogs and I can't help but feel like they're missing the point entirely. Ms. Bowen being able to desribe her experience as rape to a jury can't heal the wounds she's having to endure.

I've read the posts on this site and other blogs and I can't help but feel like people are concerned about our system of justice but fail to understad the facts of this case. Ms. Bowen can't desribe what happened to her in graphic detail nor in any other terms that would convey what happened because as she stated during her interviews with police and at trial, she doesn't remember.

Sadly, her role in her own trial has been reduced 2 critial facts; A) She woke up with the defendent on top of her penetrating her vagina at which time she asked him to stop and he did; and B) She drank enough to black out which she can in turn argue meant she was incapable of consenting to sex which she can in turn argue should have been obvious to the defendant which leads us to a discussion as to how drunk you have to be in order to no longer be able to consent to sex. That would be an interesting conversation indeed and from what I can tell, it's the only relevant factor left undecided in this case but I can't see how such a standard would be set much less measured in a court of law after the fact based on merely the testimony of the complaintant and defendant.

I think that despite my disagreement with the judge's decision, I have to say the most intelligent comment I've read that seems particularly appropriate for this case was from Sbrak in stating "...this man is on trial, and if his verdict could depend on the use of the word "rape," then I would say there's a problem with the evidence."

Re: yeah because redundancy

JackD — Mon, 25 Jun 2007 23:55:40 GMT

Well, it is fact finding albeit you are right that noone familiar with the justice system contends that it is accurate and objective in the sense that truth is clearly revealed. What is produced is the best we can do knowing that the best we can do is not perfect or close to it. Our system is sufficiently cynical about the ability of the "fact finders" to be right that it requires standards like "beyond reasonable doubt" in criminal cases in order to try to avoid serious error. That occurs, nevertheless, both in acquittals and convictions. There are indeed many wrongfully convicted people and many wrongfully acquitted people. So, what's so great about the system? It's like Churchill said about democracy: it's a terrible system except for all the others (paraphrased.)

Re: yeah because redundancy

Madd_Libby — Mon, 25 Jun 2007 21:11:47 GMT

fact finding issue

I admit, I'm no lawyer. My understanding of the criminal justice system in the United States, however, is fact-finding isn't what is happening in the courtroom. Evidence-weighing is. That is to say, evidence, as long as it isn't blatantly untrue, or proven to be so, is presented and its persuasiveness is what is being judged. Fact-finding is what congressional commitees do, not what criminal trials do.

Of course, I tend to be a bit more animated on this issue because I am a rape survivor. I never filed charges because I knew that the trauma of bringing my assualter to justice wasn't something I could survive mentally and emotionally at that point in my life. I also knew that he was on his way to prison for 10 years because of another assault.

If I had come forward, and been told that I couldn't use the word "rape" or "sexual assault" or any of the other "inflamatory words" I would feel very much as though I was being forced to suffer again in trying to find other ways to describe exactly what I went through.

Re: So you are saying the accuser no longer has the right to accuse?

JackD — Fri, 22 Jun 2007 16:18:35 GMT

No, I'm not saying that. He has the absolute right to be present when she testifies, the right to "confront" witnesses is constitutionally guaranteed.

Re: So you are saying the accuser no longer has the right to accuse?

kgswiger — Fri, 22 Jun 2007 15:36:14 GMT

Are you,saying he doesn't have the right to be present when she testifies? Because she's not his accuser, after all.

Re: Just the Facts, Mam

Chispa — Fri, 22 Jun 2007 01:59:21 GMT

Did anyone even read the linked article about the jury deliberations?

Re: yeah because redundancy

JackD — Fri, 22 Jun 2007 00:52:20 GMT

Saying, "he raped me" isn't helpful to the fact finding issue. Describing what he did may well lead to that conclusion but offering the conclusion as "fact" is not evidence; it's argument.

Re: I TRUST A JURY TO DO ITS JOB

JackD — Fri, 22 Jun 2007 00:23:05 GMT

You hit upon an important distinction. The emotional aspect of the victim's experience really has nothing to do with the determination of the defendant's guilt or innocence. It has a great deal to do with the punishment meted out after a guilty verdict.

I TRUST A JURY TO DO ITS JOB

Textualist — Fri, 22 Jun 2007 00:10:17 GMT

The jury should be able to make common judgements based on common words without a judge expecting the members to get "inflamed".

However, I also trust a jury to be able to differentiate various aggravating and mitigating factors when determining punishment. For instance, what are your feelings on Roper v. Simmons, where an obviously guilty 17 year-old was saved from the jury's determination that death was the correct punishment for what by all accounts was a horrible crime (i.e premeditated murder by throwing a bound & gagged woman off a bridge)?

Whether it is "right" to execute a 17 year-old under any circumstances is definitely a tricky policy question (I would not favor it), but a policy question none the less.

Re: So you are saying the accuser no longer has the right to accuse?

JackD — Thu, 21 Jun 2007 18:56:00 GMT

The prosecutor has the right to accuse. The complaining witness has the right and obligation to testify to the facts that support the accusation.

Re: Re: Four-letter Words

Sbrak — Thu, 21 Jun 2007 17:10:37 GMT

You have a good point in saying that it does limit the plaintiff's expressing of her own emotional trauma, and in that her full story. However, I do feel that simply telling the events of the crime step-by-step can be just as emotional, and more accurately perceived by the jurors. (As can be seen in the first post of this discussion.)

If you're saying that the use of the word "rape" in a testimony cannot determine the verdict, I guess I'm arguing the opposing point: that the word "rape" can be potentially damning, in a courtroom or as much as in life. From what I can tell, the judge in this case is simply trying to get the jurors to focus on what happened, rather than confronting them with an accusation that most of us would feel wrong even considering to be false.

yeah because redundancy

Isonomist — Thu, 21 Jun 2007 17:09:49 GMT

is never part of a courtroom proceeding. I don't think using the term rape adds to the drama any more than "he pulled a gun on me" does. I mean, it's what you're there to complain about if you're the complainant. To avoid saying what exactly happened makes it sound like you aren't really serious about the charge. Akin to "I fell on his fist."

Re: doesn't work for me.

Claudius — Thu, 21 Jun 2007 16:31:29 GMT

Unless I'm reading the column incorrectly, it seems as though the judge is prohibiting anyone--not just the purported victim--from using the vocabulary in question. That means the prosecution, the accuser (if on the stand) or any prosecution witnesses, as well. So what is supposed to happen? Yes, the trial begins with the jury being informed of the charges against the defendant, but from then on out no one can use the words contained in the charges?

Example:

The bailiff--"The defendant is charged with first degree sexual assault."

The prosecutor's opening statement--"The evidence will show that the defendant sexually assaulted--"

The defense--"Objection! The use of such terms implies a presumption of guilt that infringes on my client's right to a fair trial!"

That's ridiculous. If the prosecution referred to the defendant as, for instance, "the rapist", in the first person during the course of the trial, THAT would be a presumption of guilt. What this Nebraska judge did is just nonsense. There's another problem here. If we're going to have a fair and transparent justice system, the laws must be specific. It follows that the court proceedings should adhere to the language in the statutes. Words matter. To have one set of words in the statute, and then another set of words in court, is lunacy, and almost guaranteed to create bad precedent as well as bad justice.

Re: doesn't work for me.

JackD — Thu, 21 Jun 2007 15:43:40 GMT

The jury is told by the court what the charge is before it is selected. They don't need to hear it again from the complaining witness. If the issue is consent or lack of it, that is what she should testify about and it doesn't take any careful parsing to do that. For the witness to testify, "he raped me!" or words to that effect, adds nothing to the evidence other than drama. OK on TV, I suppose, but inappropriate to the factual inquiry that is what a trial is supposed to be.

It isn't

degsme — Thu, 21 Jun 2007 15:29:27 GMT

It isn't different. What you have are some clever defense attys and a rather dim judge.