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07 May 08
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And according to Clarence Mock, Safi's defense attorney, the term rape seethes with enough emotion to prejudice a jury and is itself a legal conclusion. Once that word is uttered, Mock says, "the skunk is in the jury box and it's hard to get the smell out."
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Mock felt that the ban ensured his client a fair trial. "She, like any other witness, is subject to the rules of evidence," he says of Bowen. "To say that there is a First Amendment right of the witness to say whatever they want in a courtroom is a silly notion."
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The second trial was scheduled to begin last spring. This time, Bowen refused to comply with the court-ordered language ban, which had been expanded to include the terms "sexual assault kit" and "sexual assault nurse."
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On Bowen's behalf, protesters demonstrated outside the Lincoln courthouse, and a petition, which Bowen signed, circulated on the Internet to change Nebraska law.
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Bowen's attorney, Wendy Murphy, says her client had nothing to do with the protest, which was organized by PAVE (Promoting Awareness, Victim Empowerment), a Chicago-based advocacy group for rape victims.
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But since Bowen has decided to take her language-ban appeal to the federal district court, she and her lawyer have begun soliciting support from PAVE and other national advocacy groups.
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It's significant that this First Amendment challenge regarding the rights of witnesses has originated in a sexual-assault case. Sex crimes, due in part to their intensely personal nature, tap into a complicated set of cultural values and historical meaning; thus, a ban on sex-crime-related words carries a different weight from one on words like "murder" or "embezzlement."
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Michelle Anderson, an expert in sexual violence and the law, and the dean of the City University of New York Law School, notes that rulings like Cheuvront's reflect the way that the courts have traditionally viewed rape cases. "The notion that the word rape is so charged derives from an historical willingness to place a higher burden on rape victims who come forward," she says, pointing out that in the past, rape cases had required corroboration and evidence of the use of force, and instructions could be given to the jury to treat an alleged rape victim's testimony with special caution.
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"It's a way of putting a thumb on the scale because often in acquaintance rape cases, the woman experiences the intercourse as rape and the man experiences it as sex," Anderson says of the language ban. "It's a way of denying the woman's ability to describe her experience as she lived it."
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The third sexual-assault trial has yet to be rescheduled, but in the meantime, Bowen hopes to eventually take her appeal from the federal district court to the U.S. Supreme Court and achieve a national standard for allowable language in the courts — one that upholds a witness's right to free speech without treading on the right of the accused to a fair trial.
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