Why we need more explicit sex talk in courtrooms

The unspoken language issue in the rape trial of Pamir Safi*

About a week ago I received an email from Victoria (Tory) Bowen about a rape trial. Tory Bowen alleges that she was raped by Pamir Safi in October 2004. According to Bowen, she does not remember leaving a bar with Safi, though others witnessed that she did. She believes she was drugged but can’t be certain because a urine specimen was lost. What she knows for certain is that she woke up on the morning of October 31st with Safi on top of her. Safi was tried once for the rape, that trial ending in November 2006 in a hung jury, and is going to be tried again next month.

Bowen was writing to bloggers because of she is outraged because in the first trial, responding to a motion by the defense, the judge in the case banned the words “rape,” “sexual assault,” “victim,” and “sexual assault kit,” from testimony (worse, he did not inform the jury that the words had been banned) and this restriction will remain in effect during the new trial as well. (Bowen is currently organizing to try to change the Nebraska law that permits judges such wide latitude in regulating the language used in testimony.)

This restriction on her speech has caused Tory Bowen a lot of anguish, as she has been compelled to describe what she experienced as “sex” during her testimony. Partly because of this, the prosecution team has moved that the words “sex” and “intercourse” also be banned from the testimony in the new trial. The judge refused that motion. Dahlia Lithwick, writing the always-excellent “Jurisprudence” column on Slate, notes:

“Responding to Cheuvront’s initial language ban—which will be in force again when Safi is retried in July—prosecutors upped the ante last month by seeking to have words like sex and intercourse barred from the courtroom as well. The judge denied that motion, evidently on the theory that there would be no words left to describe the sex act at all.

If this is, in fact, Judge Cheuvront’s theory, it is an absurd one. In fact, the way I see it, the bigger problem with language in this trial is that the use of very explicit terms to describe what happened — in detail — is apparently being avoided altogether. There are plenty of much clearer, more explicit ways to describe a sex act — consensual or forced — than to resort to works like “sex” and “intercourse.” In fact, those words say very little at all about sex acts.

Lithwick makes a comparison between describing a rape and describing a mugging:

“Asking a complaining witness to scrub the word rape or assault from her testimony is one thing. Asking that she imply that she agreed to what her alleged assailant was doing to her is something else entirely. To put it another way: If the complaining witness in a rape trial has to describe herself as having had “intercourse” with the defendant, should the complaining witness in a mugging be forced to testify that he was merely giving his attacker a loan?”

Can you imagine if your only option in testifying against a person who mugged you was to say “mugged” or “gave a loan”? What about: “he pulled out a knife, threatened me, and took my wallet.” That would be much more descriptive, and much clearer for the jury.

It’s the same here. The debate should not be about whether Bowen can call it rape on the stand or whether she has to call it “intercourse” (no way!!) or “sex” (how vague!!), but why she is not being asked to describe the events in explicit detail. Imagine if the line of questioning by the prosecutor went something like this:

“Ms. Bowen, please describe for the jury the first thing that happened when you awoke on the morning of ….”
“As I was waking up I felt an unexpected weight on top of me. The defendant was on top of me and was thrusting his penis into my vagina.”
“Did you consent to his thrusting his penis into you?”
“I was asleep when he started. I woke up to discover it already happening. I could not possibly have consented.”

This exchange uses neither the term “rape” nor the term “sex” nor the term “intercourse,” and for good reason. Rape, as has been argued in the trial motions, is a conclusion for the jury to come to. It is not all that uncommon for judges to make witnesses stick only to facts and not to make legal judgments in their testimony. But the exchange imagined above does clearly convey lack of consensuality, because it sticks to exactly what happened.

And that is why words like “sex” and “intercourse” are inadequate here. They don’t describe specifically what was going on. Not only does “sex” generally imply consent, but the word can mean all sorts of things, from oral sex to anal sex to mutual masturbation to, well, you get the picture. And “intercourse,” while somewhat more specific, likewise seems to imply consent. But that does not mean that “rape” is the only option. Explicit description of what happened would be much clearer and would avoid the problem of implying consent. In this case, Bowen should stick to the facts, no matter what the prosecutor or the defense asks. And those facts, according to Bowen, could include statements like:

“No, I didn’t have sex with Safi. I woke up and he was on top of me thrusting his penis into my vagina.”

and

“I couldn’t consent. I was asleep when he started.”

Perhaps there are more facts she might explicitly assert, and if so, I hope she will.

Safi, of course, can try ot assert that he did in fact have sex with Bowen, but he should be questioned closely by the prosecutor about what kind of consent he obtained. Specifically, in relation to the events of that morning, it would be interesting to follow a line of question like this:

“Mr. Safi, you say that you had consensual sex with Ms. Bowen on the morning of October 31, 2004. What did she do, specifically, that morning, that communicated her consent?”

I understand that people are squeamish about explicit descriptions of sexual behavior, but it seems like no place outside of a sex education context is it more important to be clear than when it comes to trying someone for a sexual crime.

“Just the facts” and “the whole truth” are important legal principles to strive for here, and I can think of no better way to abide by those principles than to introduce very explicit sexual language into the courtroom.

*This was originally posted at 2:20 p.m. Since then I have had one email exchange with Tory Bowen and on the basis of that exchange I added a sentence about her organizing to change the Nebraska state law, and a sentence about her believing she was drugged. I also corrected my spelling of her name. 

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39 Comments

Filed under language, Pamir Safi, public discourse, rape, sex and the law, Tory Bowen, Victoria Bowen

39 responses to “Why we need more explicit sex talk in courtrooms

  1. This is simply insane and inane, but you are absolutely right Elizabeth. There should be very specific and explicit details laid out without question, and without squeamishness. There should be no doubt as to exactly what the facts of the case are.

    That said,

    How about words like “pencil”, “stubby”, “dirtbag”, “scum sucking pig”? (I’m not being flippant, just hang on a sec. There really is a point coming.)

    I’m sure I’d be held in contempt, because it’s doubtful I’d be able to resist something like:

    “Ms. McKnight, please describe for the jury the first thing that happened when you awoke on the morning of ….”

    “As I was waking up I felt the unexpected weight of an unwanted scum sucking pig on top of me and the pungent odor of fecal matter emanating from the defendant’s breath. The defendant was on top of me and was thrusting his pencil-like penis into my vagina.”

    “Did you consent to his thrusting his penis into you?”

    “I was asleep when the dirtbag started. I woke up to discover it already happening. I could not possibly have consented to Stubby.”

    I’d be the one that wound up in jail (or more likely a rubber room), no doubt.

    (Here comes that point about which I spoke…)

    How a rape victim like Tory has the strength to go through one trial, let alone two, and not climb over the banister and claw the fucker’s eyes out and beat him to a quivering pulp is beyond me.

    Sticking to the rules during testimony is something I doubt I could do. I’m sure I’d be an incoherent, raging maniac. He’d go free, and I’d be locked up. (But he’d be fed through a straw for the remainder of his miserable life if I could get at him before the bailiffs hauled me out.)

    I cannot help but stand in admiration and awe at Tory’s strength, her willpower, her intestinal fortitude. Her self-control is astounding.

  2. Liz

    “Just the facts” and “the whole truth” are important legal principles to strive for here, and I can think of no better way to abide by those principles than to introduce very explicit sexual language into the courtroom.

    I agree, and I think you are right to point out that the testimony is what is essential in any trial. But as Lithwick’s piece points out, and you admit, banning categories of words does start to affect one’s ability to communicate “facts” and “truth” at some point–especially if you can’t communicate the FACT that the victim went to a hospital and was treated using a “sexual assault kit”. (It goes to credibility and consent–and what other word are you going to use for it? Vitullo kit? http://en.wikipedia.org/wiki/Rape_kit)

    That’s a small point. What I find surprising about your post is that I have never heard that sexually explicit language has been missing from rape trials. In fact, I understood the _opposite_ to be the case–that rape trials discussed the details of the sex in question in such graphic detail that victims were reluctant to come forward, because they essentially had to relive the events in testimony.

    I’m looking at Alice Sebold’s harrowing memoir, _Lucky_, at the moment. She provides a near-transcript of her testimony in the trial of the man who raped her, along with comments about her thoughts under questioning. There are _plenty_ of specifics (p. 174):

    “‘. . . Then he made me lie down on the ground . . . and he started fondling my breasts and kissing them and doing things like that, and he was very interested in the fact that I was a virgin. He kept asking me about it. So he used his hands in my vagina . . . ‘
    “I was breathing shallowly now. The bailiff beside me became more and more alert.”

    Significantly, the narrative “goes blank” at the point where Sebold had to describe the rape itself:

    “‘Continue,’ [said the prosecutor.]
    “I talked interruptedly for nearly five minutes. I described the assault the blow job, talked about how cold I was, detailed the robbery from my back pocket, his kiss good-bye, his apology. . . . [The prosecutor] needed specifics. He asked about penetrations. He asked how many times it had occurred if it had occurred more than once.”

    Sebold’s whole tale makes harrowing reading. I also have a great deal of sympathy for Bowen and for any person who experiences sexual assault. But the finding of fact is not a neutral thing; the very effort of the judge to police language in this way shows the backlash against rape victims, as Lithwick’s article points out. Rape trials more than most show changing societal attitudes in sharp relief (read some from the 1950s and you can see this immediately). The answer doesn’t lie in more language or different language. The answer ultimately lies in our societal attitudes toward the crime of rape itself.

  3. mledbetter

    Amazing– how do you know she is a victim of sexual assault ? Why do you accept her representations as sacrosanct ? Merely alleging you have been assaulted does not mean you were and certainly is not tantamount to proving you are– unless you are a feminist and think “All women tell the truth” when rape allegations are the most frequently falsified of any felony complaint.

  4. While you may actually have a valid legal point, mledbetter, that of the principle of “innocent until proven guilty” it’s rather beside the point of this post. I may have also lost sight of that in my previous comment. Rather, this is about barring particular words from a trial, independent of whether the accused is actually guilty.

    This post has been bouncing around the back of my head for a few days now.

    I guess my thoughts on it just now are these:

    I sort of understand that the word “rape” in this setting is a legal conclusion, of which the prosecution has to convince the jury.

    What I’m tripping over is the idea that neither the prosecution nor the alleged victim can utter the name of the crime of which the defendant is accused.

    The more I think about it, the less sense that makes. Were he accused of first degree robbery or second degree murder, would the prosecution be barred from using the R word or the M word?

    Seems like it’s his job to tell the jury of what crime the defendant is accused. He’s supposed to find out the facts and lay them before the jury.

    “The defendant did this. The defendant did that. The victim did this other thing. These are the circumstances.

    This is the law. The says that when a person does this and that and another person does this other thing and these are the circumstances, that’s rape.

    Therefore, the defendant committed rape, and you need to find him guilty of rape.”

    The defendant’s attorney of course, is supposed to refute that. Then the jury decides who is correct under the law.

    That’s how it works. It’s called a trial for a reason.

    How can the trial proceed without use of the appropriate term for the crime of which the defendant is accused?

    “We the prosecution are asking you the jury to find the defendant guilty of a crime which we cannot name. We’ll give you three guesses and it’s not tax evasion.”

    WTF?

  5. WTF pretty much summs it up. The judge in this case needs to get a handle on basic common sense.

  6. vinnie campbell

    the woman had a one night stand that she later regretted…she needs to get over it. You can’t go yelling rape every time you go home with some stranger after getting trashed in a bar and find him having intercourse with you…thats ridiculous.

  7. enhancedvibes

    is this post by vinnie campbell for real? all the articles i have read report that Bowen woke up with Safi on top of her and when she asked him to stop, he did — granted we don’t know all the facts, but when all the articles state the same thing it is probably because they are established facts of the case — if that is in fact true, then Bowen was not awake when Safi started to have sex with her and therefore it is some type of sexual assault — even if she had sex with him before they passed out that doesn’t give him carte blanche to start having sex with her again while she is comatose – a little common sense here please

  8. ben tillman

    http://desmoinesregister.com/apps/pbcs.dll/article?AID=/20070629/OPINION01/706290387/1035/OPINION

    According to Bowen, jurors also couldn’t be told that the vial containing her urine sample broke on the way for testing for so-called “date-rape drugs.” Or that the same defendant had twice before been arrested – but not convicted – for rape, and in all three cases, the women couldn’t account for a chunk of time.

  9. ben tillman

    “Amazing– how do you know she is a victim of sexual assault ? Why do you accept her representations as sacrosanct ?”

    What accusations? The judge is prohibiting her from making accusations!

  10. ben tillman

    I just found about this rape case tonight, and somehow I wound up on this blog. I get the sense that I’d probably disagree with you on a lot of things, but you are speaking very sensibly when you say:

    “It’s the same here. The debate should not be about whether Bowen can call it rape on the stand or whether she has to call it ‘intercourse’ (no way!!) or ‘sex’ (how vague!!), but why she is not being asked to describe the events in explicit detail.”

    Such as:

    “No, I didn’t have sex with Safi. I woke up and he was on top of me thrusting his penis into my vagina.”

    and

    “I couldn’t consent. I was asleep when he started.”

    Well said.

  11. Josef

    Two things:

    1. I believe it should be up to the jury to decide whether the man’s actions were “rape” or not. The plaintiff should stick to the facts of exactly what happened, without prejudice, and leave the rest to the jury. In that sense, I agree that words such as “rape”, etc. should not be allowed in testimony. My ex-girlfriend was extremely good at playing the part of the victim, very convincing, and often used inflammatory and accusatory words such as this (not “rape”, specifically) against me or anyone else she came into contact with in order to garner sympathies, and all too often it worked.

    2. Why is it if a woman goes out to a bar with a man, gets drunk (both of them), returns with him to his apartment, brandishes a gun and kills him (but is too drunk to remember), then she will be convicted of murder– yet, if the same woman goes out to a bar with a man, gets drunk (both of them), returns with him to his apartment, has sex with him (but is too drunk to remember), then she is a victim? There seems to be a serious double-standard here. If a person goes out and imbibes, then that person should take responsibility for what happens.

  12. Joe

    Her best friend says she seemed ok when she left with him.

    She got into his car after the incident! (no inteligent woman gets into the car of a stranger, let alone a man whom she believs just raped her)

    the defence was aparently convincing in the argument that they lied in bed together for an hour after the supposed rape occured.

    In sum, there is no rational way these facts could support a rape, in my opinion.

  13. Bill

    This is fascinating and thanks to your blog very illuminating. Initially, after reading about this case online, I was on the side of Miss Bowen. After all, she believes that she was raped so how else could she communicate that without using the word rape? Well, you did a terrific job of clearing that up by pointing out that it is very easy to do so. Miss Bowen only need to testify that she did not give consent. She can be cross examined and yet still stick to the facts without using prejudicial language. And I’m glad that you pointed out that it is for the jury to decide whether it was rape and not Miss Bowen. That’s why it’s called a trial.

  14. Gideon

    She was raped.

    There is little doubt about it.

    This guy is a serial rapist.

    He drugs women and then rapes them when they are in a drunken/drugged stupor.

    I had a friend and it happened to her.

    She would regularly crash at a “friend’s” house after parties to save the ride home. She would sleep in the same bed with him. He – duh – had tried to get it on with her several times, but each time she would say, “no Dave, we’re just friends”. All of her friends warned her that the guy had a “bad reputation”.

    So one time they get back to his place and he offers her one more beer. She wakes up the next day with semen in her mouth and her panties on backwards. Asks him if the had sex. He says no.

    Figures out 4 months later at a meeting on campus that she was drug raped.

    So, despite the evidence that this woman left with this guy, got in the car with this guy, got in the car again with this guy, there is little doubt in my mind that he drugged her.

    Maybe it just took her a while to realize what had happened. Maybe she was still dazed and confused.

    In any case, if I was on the Jury I couldn’t convict this guy, because there is always the chance that she was simply unhappy with the fact that she got bombed and f—-ed some stranger.

    But that happens thousands of times every friday.

    There is, to me, reasonable doubt.

    And, as much as it makes me uncomfortable to say it, that reasonable doubt comes from the fact that she was loaded. I’ve seen drunk people do ridiculous things.

    I knew one woman who went out every friday, got loaded, had sex with whoever she ended up going home with, and never remembered what had happened.

    Given that, there is reasonable doubt, in my mind. She may have had sex with the guy willingly and then woken up a bit later unhappy with the though, but not recalling that she consented.

    Ayyy… Sometimes bad guys must be set free to protect the good guy who really is innocent.

    In any event. I tell my daughters to never put themselves in that position.

    One drink, you’re happy.
    Two drinks, your guard goes down.
    Three drinks, your guard is on vacation.
    Four drinks, you have unprotected sex with strangers.

    Best thing . . .

    Don’t drink.

    But if you can’t help yourself, don’t drink around strangers, have a buddy, never leave your drink unattended, and on and on.

    Protect yourself, because the world will always have animals like this bastard.

  15. james

    Words have meanings. I think most reasonable people would agree that ‘rape’ means forcible vaginal or anal penetration, whether with the penis or other object. Likewise, the words ‘sex’ and ‘intercourse’ are (usually) reserved for consentual intimate acts involving vaginal or anal penetration.

    That said and contrary to your blog entry, if you read a transcript from a typical rape trial, you’ll quickly realize there is no suppression of explicit, highly descriptive language.I assume the judge didn’t want the inflammatory connotations certain words or phrases carry, and in fact wanted MORE exact language used to describe what happened.

    On it’s face, this would seem to be the perfect example of what I call ‘regret rape’. There’s a movie out right now about it.. it’s called ‘Knocked Up’. Maybe women like Tory and men like Safi could strive to be a little more responsible when leaving the bar? And if heaven forbid they do something stupid, don’t reframe it as a crime.

    In my opinion (based on the facts that have been made public) Tory is not a courageous victim, and Safi isn’t a criminal. This case is an insult to people who have actually experience rape.

  16. Joseph Ruffolo

    I stumbled onto several links for Tory’s case. Without trying to take sides (and every case does have two sides) I was stunned by the judge’s actions to limit information at the trial. Both the alleged victim and alleged purporter have the right to a fair trial. The right seems to be blocked and it is a blow to justice being both blind and fair.

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  18. It isn’t surprising, I suppose, though it is still an outrage, that we conflate intoxication and consent when it comes to sex, and that a person’s intoxicated state might create “reasonable doubt” in the mind of a juror, or in the mind of any listener.

    If you were drunk when you showed up for the closing on your house sale, would they let you sign the papers?

    If, when totally stoned, you signed away your custody rights, would that agreement be honored in court?

    Are you legally able to give informed consent to a medical procedure if you are intoxicated?

    I thought that, legally, intoxication puts a person in a state of incapacity to consent. If you can’t legally consent to sex, then any sex that happens is technically without consent.

    Rather than laying all this at the feet of women and saying “you shouldn’t get drunk because you might get raped,” I’d suggest we lay some of it at the feet of anyone who instigates a sex act and say “If your partner is intoxicated you really can’t be sure that person is consenting and you shouldn’t be having sex with her.”

    (That of course does not address the issue of predation, where a perpetrator goes out looking for intoxicated people, or who drugs people. That, I think, creates a more obvious — though equally hard to prove — level of intent.)

  19. An update:

    The AP, via the New York Times:

    Filed at 10:00 a.m. ET

    LINCOLN, Neb. (AP) — Before a jury was even seated, a judge declared a mistrial in a sex-assault case where he had barred the words ”rape” and ”victim.”

    Judge Jeffre Cheuvront of Lancaster County District Court said protests and other publicity surrounding the rape case against Pamir Safi, 33, would have made it too difficult for jurors to ignore everything they heard before the trial, which had been expected to begin next week.

    The trial will be continued at an as-yet-unspecified time and possibly in another county.

    A question: Should those of us who want to see a trial occur stop blogging/speaking/writing about this for fear of tainting the process? Or is speaking up about these complicated issues a responsible thing to do because it may help educate potential jurors and give them new perspectives that might help them in making just decisions?

  20. By the way, one of the first comments on this post was by Liz and she made an excellent point that I’ve been meaning to thank her for:

    She points out that rape victims have often been intimidated by questioning that does, in fact, draw out painfully explicit details about their rapes. I neglected that in my original post. She is right that this happens, of course, and I want to emphasize that rape victims need lots of support to overcome the pain and the shame they often feel when having to speak explicitly about what has happened to them.

    Some of that pain is felt by any victim of a violent crime who then has to relive the violence and trauma by describing it in court. Other parts of that pain come from the peculiar way we treat sex in this society, and especially the way we create shame around sex. Were sex not seen as so shameful, especially for women, rape would not be quite so difficult to talk about, and testifying to the details of a rape in court would not be the extra-painful event that it is for many victims today.

  21. Gideon

    “I thought that, legally, intoxication puts a person in a state of incapacity to consent. If you can’t legally consent to sex, then any sex that happens is technically without consent.”

    Our host wrote the above.

    EW, you gave several examples of where intoxication would nullify the “consent” aspect of the deed – signing legal papers, agreeing to a medical procedure, and so on.

    Then you extended that to say, ” . . . so the same thing should apply to sexe.”

    What that argument-by-example overlooks is the fact that, unlike sex, your cited examples are NEVER performed while drunk.

    On the other hand, I’ve known people who have sex more often than not when they are drunk.

    Further, I’d estimate that most women would not agree that they are unable to engage in consensual sex when they are drunk.

    If it were true that merely being intoxicated could be said to make consensual sex impossible, then rape in the U.S. is underreported by about 90% and most women I have met in my life have been raped and they’re okay with it.

    Of course, I’m being facetious because I disagree that intoxication means that you cannot consent.

    It’s much like criminal law, in a strange way; a criminal cannot defend against an act committed while inebrieted by confessing to the inebriation.

    Similarly, a man or a woman who decides to have sex while drunk has made a decision that, in my opinion, he or she should be held to.

    Of course it goes without saying that being drugged is not the same as being willfully drunk.

    Further, there is some point of intoxication at which coherency is lost, and at that point, no consent can be given.

    Where is that point? That is, I suppose, a judgement call. I would put it at some point after a person is able to walk out of a bar with a man/woman.

    Finally, if, EW, you believe that I equated inebriation with giving consent, then I confirm that I did not mean that, and I do not believe my words could be reasonably construed to mean that.

    Consent is consent is consent. It’s not black and white, but the gray area isn’t that wide.

    With regard to the quote:”Rather than laying all this at the feet of women and saying “you shouldn’t get drunk because you might get raped,”

    again, if that was directed at me, then all I can say is that you have taken my point and changed it to an extreme version that is not my point.

    It’s the same thing as when I’d say to my gf, “I think that you might want to consider redoing that – it doesn’t present well,” and she responds, “so I’m a f—-ing loser, is that it?” (That actually happend, by the way).

    I never wrote or implied that I was “laying all this” at the feet of women.

    I have two points to make here.

    1. I think this guy did it, but I don’t think there’s enough proof that he did it.
    2. I think it’s important to remind our friends, our sisters, our daughters, ourselves, that there are animals all over the place, and it’s in a woman’s best interest to be ever vigilant.

    Sure it’s wrong that men rape. Sure it’s never the victim’s fault. But I’d be doing my daughters’ a disservice if I didn’t tell them clearly and repeatedly that they have some degree of control over what happens to them.

  22. Greg

    Using the logic “that you cannot give consent when drunk”, wouldn’t the same be true for the man? In other words, if person A is too drunk to agree to sex, could it be that person B is too drunk to not know that person A doesn’t want to have sex?

    Bottom line: don’t get drunk, leave a bar willingly with a stranger, go to his house, and not expect to have sex. Lets get real. When 2 people are kissing on each other in a bar and leave together, everyone expects them to get it on.

    Didn’t your mommy teach you not to talk to strangers? Give me a break!

  23. First, a note to readers in general: unless a comment is specifically addressed to you, it is probably intended for a wider audience. Gideon, I was not responding only to your comment, but rather to a thread of comments, and to a complicated theme that has run through many discussions of the Bowen case, the Wilson rape case (not the consensual blow job case, but the rape that started the prosecution in the first place) and many other discussions of acquaintance rape.

    I would love to get a lawyer and an alcoholism/addictions counselor in here to help us out with a few questions about consent and intoxication. (NOTE: These are hypothetical questions and do not relate specifically to any one legal case.)
    For example: If a person’s alcoholism is advanced is it not possible that the person could be drunk, yet appear functional, yet be operating in a blackout and remembering nothing? Would that person be considered too intoxicated to consent, legally, to sex? If I approached that person at the end of a night at a bar, would it be possible that I might not be able to tell she was too intoxicated to consent? If I had sex with her and then in the morning discovered that she had no memory of the evening, and was appalled that we’d had sex, and was certain that she had not consented, would I be responsible for rape?

    Is it true that to be guilty of a crime a person has to have intent to commit the crime? So if I have no intent to have sex with a person who is not consenting, and if we are both impaired and I believe she has consented, but later after we are sober it is clear that we were both too drunk to consent, can we each claim lack of consent?

    While I think these are interesting and important questions, it is important not to lose track of the bigger issue: consent is clearest when it is negotiated directly, and this is especially important in the early stages of a sexual relationship when the parties involved don’t know each other well and don’t have a strong basis for sexual trust.

    Gideon, I think the advice you give your daughters is good advice. I give my students similar advice. And I also give them the corollary advice: don’t have sex with people who are intoxicated unless you have a really good reason to know that you have their consent. That they are “going along with it” is not enough on its own. Unless you have a history of sexual trust with a person, it is probably best not to get in bed with someone you wouldn’t let get behind the wheel of a car. While it’s true that you could be lucky and it could all work out, it’s also true that somebody could get badly hurt.

  24. Gideon

    I am, in fact, a lawyer, but I don’t practice in the crim law area, so I can’t even tell you what the consent laws in my jurisdiction are.

    I agree with your take on the other-party hypo.

    I personally would never have sex with a woman who was drunk if I was substantially more sober than was she.

    On the other hand, if I was drunk, which I never am anymore, I can’t say that I’d be doing that analysis if it was 2 AM, it was dark, I had an erection and a naked woman next to me in a bed making out. I’d bet against me asking myself, “is this consensual”, at that particular moment.

    I’ve always considered myself unusual in that regard – I’ve never so much as kissed a woman before she did something first.

    I guess, for me, it’s the thought of having a woman say, “what the hell are you doing?”

    I’d feel like a goon.

    In any case, I’ve never screwed around with a woman I hadn’t known fairly well, so I can’t really put myself in the one-night-stand scenario.

    Rape is an awful part of life.

    People are animals.

  25. I believe Pamir Safi is Innocent and this a vindictive and Malicous Prosecution made by this women toby bowen, and I think we Learned form the DISCREDITED DUKE RAPE CASE THAT WENDY MURPHY IS A SELF SERVING LIAR AND that the Women’s group jumps at any bandwagon in attempt to convict the Male Species instead of Seeking Justice this is conspiracy by the Women’s Group/Wendy Murphy; to convict an INNOCENT MAN. I thought we would learn from the DISCREDITED DUKE RAPE CASE.

  26. Greg

    I have been reading about this case and I find it appalling that a judge would essentially handcuff the witness from telling in explicit detail what happened to her. The banning of language and not informing the jury of such ban seriously tilts the trials balance squarely in the direction of the defense. I have no love for attornies and specifically the scum lawfirm representing this guy – while there is no way apparently to get to the judge to let him know how offensive his order is – apparently the lawfirm can be contacted by email as follows: omaha@johnsonandmock.com

  27. anon

    “It isn’t surprising, I suppose, though it is still an outrage, that we conflate intoxication and consent when it comes to sex, and that a person’s intoxicated state might create “reasonable doubt” in the mind of a juror…”

    the complainant’s case is that she cannot remember what she did or said the night before, and we might reasonably infer that she was drunk. As a wild guess, it may well be the defendant’s case that there was consent the night before. I am just wondering why we should accept the word of the person who had an alcoholic black-out, and exclude the testimony of the person who claims recall, beyond any reasonable doubt ?

    “If your partner is intoxicated you really can’t be sure that person is consenting and you shouldn’t be having sex with her.”
    I assume that you are teetotal, and that you have never had sex after some alcohol; and that you have likewise never had sex with anyone who has had alcohol. However, the idea that we should prevent intoxicated people from having sex is really a quite startling form of social control; and one which I am sure would be rejected by both women and men alike.

  28. Barbara McCall

    I skimmed the comments and didn’t find any that quoted Nebraska law, which of course is the starting place for a criminal complaint, trial, jury instructions or an informed discussion of this issue.

    In order for a jury to convict an individual of sexual assault in the first degree, according to Nebraska law, the jury must be able to find, beyond a reasonable doubt, that all of the following elements of the crime happened:
    1. That the actor (defendant) subjected another person to sexual penetration,
    2. without the consent of the victim, and
    3. that the actor knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct. Neb. Rev. Stat 28-319.
    The terms actor, intimate parts, past sexual behavior, serious personal injury, sexual contact, sexual penetration, victim, force or threat of force, and “without consent” are all defined in the statute. Neb. Rev. Stat. 28-318. These are the definitions that the jury must use in determining whether or not the crime of first degree sexual assault was committed.
    The term “rape” does not appear anywhere in the statute.

    Obviously, the prosecutor must present credible evidence that will allow the jury to reach the conclusions required by the statute in order to convict. The term “rape” is an inflammatory and emotional word, it is conclusory and does not specifically address the requirements of the statute. I support Judge Cheuvront’s decisions.

    I believe that the issue of consent is the central dispute in this trial.

    If I read the news correctly, after the first trial ended with a hung jury, the victim or her supporters organized a demonstration outside the courthouse on the day that the jury was to be selected for the second trial, thereby inappropriately influencing the potential jurors as they arrived at the courthouse. The judge declared a mistrial.

    If I were the prosecutor, after a full trial resulting in a hung jury and a second trial where the alleged victim tried to improperly influence the jury, I would have to question the wisdom of attempting to try this case again.

    Even if the jury did convict the defendant, would the conviction be upheld on appeal if the prosecution (whose primary witness is the victim) used unnecessary, inflammatory language to sway the jury?

    How much money should the county spend on this case if the victim is intentionally undermining the legal process?

  29. liz

    as far as i can comprehend this…bowen is guilty and she should be the one going to jail. when a girl goes to a bar wearing little cloths…getting drunk and going to a stranger’s house..sex is the ultimate reason. thats what bowen did and now to cover her guilt she is playing with someone’s life. i wonder how would she ever forgive herself for doing what she is doing? i think safi is innocent!

  30. lrbinfrisco

    It’s difficult to testify what happened in a time period that you don’t remember. The accuser claims to not remember the time period when intercourse was initiated and several hours of activity before that. She concludes that because she doesn’t remember that she didn’t consent or if she did consent that she was too incapacitated by alcohol or drugs to knowingly consent. According to NE law it is not rape if she consented and the accsued did not know that she was too incapacitaed by alcohol or drugs to conciously consent and if he could not have reasonable known this. If is up to the jury to decide if they believe beyond any reasonable doubt that consent was given or if the accuser was incpacitated to the point that she could not conciously consent and the accused should have reasonably known this. NE law prohibits witnesses from testifying to conclusion that the jury is charged with making. Therefore the judge was legally correct in the decision that he made.

    The accused can testify that the only concious memories she has begin in the middle of intercouse that she has no memory of consenting to. She can testify that she had several drinks the previous night and remembers nothing form the time she left the bar until she awoke naked and in the middle of intercouse. The jury then has to take this information along with any other testimony and conclude whether this meets the legal charges of Sexual Assault (under NE law rape is legally covered under a section for all Sexual Assault crimes.)

  31. I just deleted my first comment, and it was on this post. The comment did nothing other than restate claims that have already been made. I have decided to add to my comment moderation policy the following: I will very likely delete comments if they do nothing more than restate sentiments expressed by earlier commenters.

    This doesn’t mean I will delete a comment that says “Yeah, I agree with X and here’s why.” But if all you do is restate what X said and you don’t even acknowledge that X said it first, I probably will delete your comment.

  32. Iain

    (dismissive remark deleted)…a few things i agree are important.

    Reasonable doubt, and prejudicial language.

    All she needs to say is she did not give consent.

    Noone will ever know the truth. Except the two of them.

    PS
    Her friends were happy to see her leave with this guy.

    Be careful ladies!

  33. Pingback: Righteous indignation « Becoming…

  34. Aleric

    So I have few comments.

    1) Comparing the term rape to bank robbery, etc. When it’s mugging or bank robbery, there’s no doubt. There’s no question of Consent. So really, you cannot compare trying a case of bank robbery with case of rape.

    2) A rape is only rape when non-consent is proven. A robbery is robbery or failed robbery, but intent is very clear. In case of rape, esp. in this case, the goal is to establish intent of Rafi, which will establish whether he raped or intended to rape. Perhaps “alleged rape” may be allowed.

    3) I have never gotten drunk nor had sex with anyone drunk. But know and have seen plenty of people who purposely get drunk to have sex, to reduce inhibitions.

    4) If both of them left bar drunk, and went to HIS place, and if an intercourse occurred, I see it as 50-50 car accident. i.e. both parties are equally guilty. So now the point is, when Rafi reattempted intercourse in the morning, he is only guilty of waking up early. Perhaps morning wood. But there’s no way to know how she would have reacted if she had woken up early.

    5) I didn’t see any reference to the matter of whether this girl has history of going to bars and getting drunk and going home with guys.

    In conclusion, I think this guy deserves a benefit of doubt. Do not presume his guilt just because he is a guy and she is a girl and therefore it’s automatically rape.

  35. Jake

    I know the women here are standing up for “women’s” rights and all but take a look at the evidence. She tells a nurse that she first had sex with him around two o’clock in the morning. How did she know that it was two in the morning if she was passed out? Later she says that the bar closes around one so she assumes it was at two in the morning. If you were “passed out” as you claim why don’t you just say that…I was passed out how could I know when he first stuck his penis inside me?

    Next, she awakes to him having sex with her…fucked up but why would he believe it to be a problem if he already had sex with her hours before? So back to what we know; she wakes up and he’s having sex with her so she tells him to stop and he stops. I don’t see anything wrong so far. At the trial she testifies that she left five to ten minutes after she woke up because she feared for her life but all the evidence suggests she stayed for another hour and then had him take her home. You had the guy that just “raped” you take you home? Needless to say, I think it’s a crock of shit…but then again I’m just a typical chauvinist pig.

  36. lyle

    I’m not weighing in on final judgment. My comment is most specifically about the freedom of speech while testifying about one’s own first hand knowledge and interpretations………..be it uses emotional or clinical syntax, it should be allowed as the free expression of the plaintiff to allege.

    The following is my comment on a messg board regarding the justification for Ms. Bowen’s subsequent lawsuit against the judge (that was cleverly lampooned by State Sen. Ernie Chambers in Nebraska as an intended example about ridiculous and frivolous lawsuits…Ms. Bowen’s specifically.) I do not agree that Ms. Bowen’s lawsuit is a frivolous one though! The lawsuit filed by Sen Chambers against god though has taken on a life of it’s own that works as a vehicle for his own ‘dis – analogous’ campaigns.
    ~~~~
    ~~~~
    you said,

    “Chambers said Bowen’s lawsuit is inappropriate because the Nebraska Supreme Court has already considered the case and federal courts follow the decisions of state supreme courts on state matters.”

    I ask that since when I would wonder is an alleged first amendment violation trumped by a state court ruling over that of a fed court?

    I would assert that if I had been assaulted sexually and I said so in terms of “i have been sexually assaulted by joe smoe, your honor” that I should be free to state that, IN ADDITION to an explanation of perhaps what I considered that to be, but NOT be in fear that my words describing my own first hand experience be held against me in such a jeopardy of perhaps causing a mistrial or throwing me into jail, etc. There are many descriptive terms which can imply or even use the same legal terms of what is legally right and what is wrong and what could be conclusive language — but a jury can also be instructed as they always are about how to weigh and consider testimony rather than draining the streaming flow of recollection and emotional angst that an alleged”victim” is there to share as his/her very personal impact of a crime event upon their lives with a jury. I don’t believe that emotional stream of experience and context should be censored and the experience lessened because the words were considered some kind of legal branding.

    I mean don’t commonly used words in the public domain get free use provisioning even when they were once longterm commercial brands…i.e, ‘Kleenex’ is no longer a protected word to use with trademark rights in common use is it? Certainly there is some argument here for these concise yet commonly used terms. I would think that leaving the clinical descriptions and data evidence analysis jargon to the professionals would be sufficient enough for a jury to wade through but NOT expunging the context of a personal description in a victim’s own world view language is or should be limited in a first person account. The victim is already obviously there to make a claim of a legal violation and saying so should be their right to do so in a conclusive way. It would be up to the lawyers and judges to clarify the meaning, but not prevent the victim’s freedom of speech…even if the language is not a commonly accepted definition. It would still be the lawyer’s responsibility to extract the clarity.

    Now a third party description i can see as being held to a higher syntactical standard since conclusive language would be largely hearsay testimony.
    . . . .

  37. melisa

    To mledbetter:

    What evidence do you have to support your assertion that “rape allegations are the most frequently falsified of any felony complaint”?

  38. Anthony

    If sex with someone who is drunk is rape, then both people would be rapists, since both were drunk.

    However, the man had sex with her while she was asleep, which clearly indicates rape.

  39. Scott

    As a husband and father (of an 8 yr old girl) I was absolutely appalled when I read Tory Bowen’s story in People. Two of my best friends (in high school), my first wife and my present mother-in-law were all victims of sexual attacks of various kinds. I don’t pretend to understand what something like that can do to someone, but I DO understand that Ms. Bowen has been violated twice. Once by Safi and once by the Idiot Judge (Bill O’Reilly where are you when you’re needed? Pillory this judicial sub-moron!). I believe that judges should have some lee-way about which words can be used in testimony; OJ Simpson was recently convicted here in NV by an ALL white jury after the prosecutor was allowed to mention the murders for which he was acquitted 13 years ago. This is in no way a defense of OJ, but he was clearly convicted for the murders and not for the very fishy set of events alleged by the prosecutor. In such a case, the judge should have banned any mention of OJ’s previous trial, acquittal or the murders in any way. In Ms. Bowen’s case barring her, or anyone else, from using the word “rape” at trial is horrifically Kafkaesque. Consent is almost always an issue in rape cases (true “stranger” rapes being, thankfully, relatively rare), so the judge’s rationale, whether it fit the letter–but clearly slaughtered the spirit–of his discretionary power to ban certain words is clearly ridiculous. One thing is clear: Tory Bowen is getting the same kind of “justice” that the victims of former Nebraska football player and rapist Christian Peter: “Shut up, lay back and take it”.