It’s the only way Tory Bowen knows to honestly describe what happened to her.
She was raped.
But a judge prohibited her from uttering the word “rape” in front of a jury. The term “sexual assault” also was taboo, and Bowen could not refer to herself as a victim or use the word “assailant” to describe the man who allegedly raped her.
The defendant’s presumption of innocence and right to a fair trial trumps Bowen’s right of free speech, said the Lincoln, Neb., judge who issued the order.
“It shouldn’t be up to a judge to tell me whether or not I was raped,” Bowen said. “I should be able to tell the jury in my own words what happened to me.”
Bowen’s case is part of what some prosecutors and victim advocates see as a national trend in sexual assault cases.
“It’s a topic that’s coming up more and more,” said Joshua Marquis, an Oregon prosecutor and a vice president of the National District Attorneys Association. “You’re moving away from what a criminal trial is really about.”
In Jackson County, Senior Judge Gene Martin recently issued a similar order for the trial of a Kansas City man charged with raping a teenager in 2000. Despite the semantic restrictions, the Jackson County jury last week found Ray Slaughter guilty of forcible rape and two counts of forcible sodomy.
Slaughter’s attorney, who requested the pretrial order, declined to comment because she is preparing a motion for new trial. The judge also declined to comment.
Bowen’s case gained national notoriety and drew the attention of free-speech proponents after she filed a lawsuit challenging the judge’s actions as a First Amendment violation. A federal appeals court dismissed the suit, but Bowen’s attorney plans to petition the U.S. Supreme Court.
Although he dismissed her suit, a federal judge said he doubted a jury would be swayed by a woman using the word “rape” instead of some “tortured equivalent.”
“For the life of me, I do not understand why a judge would tell an alleged rape victim that she cannot say she was raped when she testifies in a trial about rape,” wrote U.S. District Judge Richard G. Kopf.
Wendy J. Murphy, an adjunct professor at the New England School of Law in Boston, is representing Bowen. She said the practice is “absolutely” unconstitutional.
“There’s no law anywhere that allows courts to issue these kinds of orders against private citizens,” Murphy said. “That doesn’t mean judges aren’t doing it.”
Prosecutors may object, but rarely do they have the time and resources to stop a trial midstream to appeal, she said.
But in cases where the defendant’s version of events is pitted against that of the alleged victim, “words are really important,” Marquis said.
“To force a victim to say, ‘when the defendant and I had sexual intercourse’ is just absurd,” he said.
Jackson County Prosecutor Jim Kanatzar said juries are smart enough to understand that in the adversarial system of justice, the state is going to take one position and the defense is going to take another.
“These are common terms that are used both in and outside the courtroom,” he said. “If someone says something that one side feels is prejudicial, it can be addressed in cross-examination.”
The issue is a discretionary call with judges, said Jackson County Circuit Judge Brian C. Wimes, who did not preside over Slaughter’s trial. Wimes said he typically would not grant a pretrial order limiting certain words, but he would verbally tell the attorneys to avoid using words in a prejudicial or inflammatory way.
“You don’t want to create an unfair environment,” he said.
Those who defend the accused say the determination of whether what happened was rape or consensual sex is up to juries, not witnesses.
“They shouldn’t be able to use the word ‘rape’ as if it is a fact that has been established,” said Jack King, director of public affairs and communications for the National Association of Criminal Defense Lawyers. “These are loaded words.”
But Bowen says there is nothing fair about allowing the defense to describe what happened as sex and forcing the victim to describe it in the same words, especially when jurors are not told that an order limiting speech is in place.
Bowen was a 21-year-old Nebraska college student in 2004 when, she said, someone incapacitated her with a rape drug. When she awoke, she was being raped, she said.
Though The Star typically does not name rape victims, Bowen agreed to have her name and photo used.
She said it’s hard enough to get up in front of 12 strangers and talk about what happened without having to worry about being found in contempt of court for saying the wrong thing.
“I think it’s unfortunate that I have to turn into a human thesaurus on the stand,” Bowen testified in a pretrial hearing.
Murphy said it’s disturbing that such “censorship orders” are entered almost exclusively in cases involving rape or sexual assault.
“If it’s about defendants’ rights, then why aren’t they used in other cases?” she asked.
Alison Jones-Lockwood with the Metropolitan Organization to Counter Sexual Assault said that there is a historical trend of doubting the word of a woman who says she was raped or questioning how she might have done something to put herself at risk.
She attributes that attitude in part to how the crime affects people’s sense of personal safety.
“If it happened to her, it could happen to me,” Jones-Lockwood said.
The jury in Bowen’s case deadlocked after one trial in 2006. The judge declared a mistrial because of pretrial publicity before a second trial in 2007.
Prosecutors dismissed the case before a third trial because of the judge’s orders on what words could be used and limits on evidence, including prior rape allegations against the defendant.
It would have come down to his word against hers, and as Bowen said, “The judge took my words away from me.”
“How can the jury make an educated decision?” she asked.
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