Let me see if I understand Ms. Lithwick's point exactly. The complainant of an alleged rape cannot adequately describe what happened to her without using the word "rape" in her testimony. In other words, the following testimony of the complainant would be insufficient to communicate that she was raped by the accused:

I drank too much at the bar and blacked out. The next thing I remembered was waking up in a strange place only to find that man [points to the accused] on top of me, naked and penetrating me [insert a more graphic description of the 'penetration' where appropriate]. I screamed and shouted for him to stop.

For that reason, the complainant must also be allowed to tell the jury that what actually (or allegedly) happened to her constitutes the crime of rape. After all, a jury would never be able to understand that the alleged act constitutes rape if the accuser is unable to call it rape in her testimony before the jury.

P.S. to Ms. Lithwick: As illustrated above, it is indeed quite possible to explain what allegedly happened without using the words "rape," "sex," or "intercourse" and still describe an act that the average person would clearly understand to be a rape (as opposed to consensual sex).

You have never played the game, Taboo, have you? Are you suggesting that the prosecutor coach the alleged victim on what she should say? Or is it just that rape victims should have an easy time relating the crime under direct examination in a court room?

I think you are correct as to what she is advocating. Basically, she would like the complaining witness to be allowed to argue to the jury in addition to testifying.

The word Rape in Texas has no leagal definition. The crime in the Texas Penal Code is either Sexual Assault or Aggravated Sexual Assault.

The prosecution in either state would have to prove the elements of the crime the person is charged with regardless of whether a specific descriptive word is used.

I could see Ms Lithwick's point if the prohibited words were "FORCE, PENETRATION OF MY......(vagina, mouth or anus) or nay other numerous wrds and/or phrases that describe the conduct that occurred" however she is not making such a point now is she????

TexasPete

I thought the point of the adversarial system was accuser and accused both got to have their say and supporting or contradicting evidence then bolstered one or the other position.

What you are describing is a level of linguistic silliness that obfuscates by requiring particular euphemistic language.

Though I agreed at first with many of those who support Ms. Lithwick's view on this case, the same quote that started this discussion changed my mind. It's not too difficult to convey the meaning of "forced to have sex" or "I woke up with that man on top of me..." But on the other hand, the word "rape," to me at least, has a stronger visceral effect that the word "murder."

As a society I feel we have more sympathy for murderers than rapists. Hell, Tony Soprano is a hero. And I don't think this is just limited to fiction. As sickened as we might be by someone who can be deemed a "murderer," we're often willing to hear him out on the circumstances of the situation. But call some one a rapist, and they don't stand a chance at being heard out. Maybe it's our own disgust of this word that causes us not to consider the variables: it's either rape or it's not rape. Once the word is said, so many of us turn away.

Whatever the reason, this man is on trial, and if his verdict could depend on the use of the word "rape," than I would say there's a problem with the evidence.

I am not in any way arguing that the verdict depends on whether the witness can say "rape" -- I am arguing, I think, that the truth or more accurately, the witness' truth depends upon it. She feels she was assaulted. Its her prerogative to tell that story as accurately as she can and as persuasively as she can. How does she do that when 4 or 5 of the most accurate, persuasive, and descriptive words in the english language are denied her? And why would a jury find her tortured substitute any more persuasive?

I don't understand why the term "sexual assault kit" was banned. I can get a pregnancy test and not be pregnant. How is this different?

Whatever the reason, this man is on trial, and if his verdict could depend on the use of the word "rape," than I would say there's a problem with the evidence.

Wrong. The problem in these cases (date rape) is exactly that the evidence is often by definition lacking, since both parties agree on what happened with the exception of whether consent was verbally give. Unless the act was videotaped, it comes down to who is more credible. And a witness who is unable to explain what happened in her own words (and without it being explained to the jury why those words are unavailable) is being handicapped.

By saying the complainant shouldn't be allowed to tell the jury what crime she is complaining about, you're making the court system effectively useless. The court is not the place to debate whether a crime took place, but to determine whether the defendant is guilty of it. Only because this is rape is anyone denying the victim her right to use the word that best describes the crime against her.

You ask the victim of rape to be verbally skilled enough to talk her way around the word rape, after she's been raped. That makes no sense, unless you also bar the words murder, crime, theft, robbery, assault and every other descriptive term that indicates a crime took place. Just replace the adult female victim with a male underage child, and we'll see how fast the judge's ruling is overturned.

The jury is not an audience of fools; they know they are in court because someone is being accused of a crime. But withholding from them the name of the crime, without informing them why the words can't be used, cripples them from the outset. How can they do their duty without the truth, the whole truth, and nothing but the truth?

Not every true rape is as graphic as what happened to this victim. And not every victim is as articulate as she. I can see why some posters here feel the victim in the story is being victimized all over again in court, which is precisely why so many women never report rape, preferring to live in fear and shame where no one can see the suffering.

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

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.

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.

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."

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.