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.
“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.”
“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.