Begging The Word Rape

Nebraska Senior District Court Judge Richard Kopf got an imaginative complaint for declaratory judgment. Rape? Federal judges don’t deal with rape.

The suit sought a declaratory judgment against a state court judge (a male) who was knee-deep in handling a high profile date-rape trial. The judge was named as the sole defendant in his official capacity only. In essence, [Wendy] Murphy (together with other lawyers) and her client, the alleged victim, wanted me to instruct the state court judge on the proper reading of the rules of evidence and the law regarding motions in limine in a date-rape prosecution then pending in the District Court of Lancaster County, Nebraska.

But for Judge Kopf, it wasn’t about the act of rape, but the word “rape,” an entirely different problem.  Not only did Judge Kopf dismiss the complaint, but he imposed Rule 11 sanctions for this novel action.

One of the lawyers for the plaintiff was Wendy Murphy, an “adjunct professor of sexual violence law at New England Law Boston.”  Ms. Murphy describes herself as an “impact litigator” on issues of sexual violence against women.

Impact, indeed. For the same, but opposite, reasons, Murphy sought a federal judge’s aid in spanking the state trial judge for his ruling.

The plaintiff alleges that she is a victim of sexual assault, that Pamir Safi has been charged with that assault in a Nebraska court, that she is a witness in the case, and that the Honorable Jeffre Cheuvront, a Nebraska district judge, wrongly issued an order in the Safi prosecution “forbidding all witnesses [from using] the words: `rape’, `victim’, `assailant’, `sexual assault kit’ and `sexual assault nurse examiner’.

To the extent there is any question that these words convey messages, it’s dispelled by Murphy, et al., seeking Judge Kopf’s firm hand to give Judge Cheuvront a spanking. This Judge Kopf was not inclined to do.

I have no experience (nada, zip, zilch, zero) presiding over rape cases. While I have been on the federal bench over 20 years and have presided over tons of criminal cases and hundreds of jury trials, I have never sat as a judge on an ordinary rape case. If the plaintiff’s lawyers are really serious about me “guiding” Judge Cheuvront, they might want to think again. Trust me, federal judges are no smarter (or dumber) than their state counterparts.

Judicial modesty aside, Judge Cheuvront’s ruling was a big one, both for the defendant in his case and for the notion that a judge finally accepted the premise that prosecution words begged the question and tainted the proceeding. It wasn’t that the judge was being mean, or uncaring, but that a criminal trial establishes two things: that a crime occurred and that the accused was the perpetrator of that crime.

Rape? It’s a horrible crime and a horrible word. And that’s the problem. If you’re a prosecutor, or Wendy Murphy, you want to scream rape as often and as loud as possible. If you’re the defense, you never want the word to be uttered. The reasons are pretty clear: rape is what the jury is being asked to decide. Rape is the conclusion, not the evidence.

The same is true of the accuser’s description. Is she an accuser? A complainant? A victim? A survivor? Factually, she would be the accuser, as she is the person making the accusation. Complainant is a legalish sounding word that’s often used, and misused, to describe the accuser.

The complainant is the person who brings the complaint, except in a criminal prosecution, the complaint is brought in the name of the People or the State, as local custom or procedure require. An accuser may sign an affidavit in support of the complaint in order to establish the non-hearsay allegations. An accuser may testify before the grand jury when the prosecution seeks an indictment. But she is not a complainant, even though non-lawyers think it sounds pretty darn lawyerly to say she is.

But victim? The only way one can be a victim is for there to have been a crime. That’s up to the jury to determine. Not the judge. Not the prosecutor. Not until verdict. As for survivor, that’s just the silly hyperbole of breathless advocates. In the absence of a threat to terminate life, survival has nothing to do with it, passionate feelz aside.

At the College Fix, Greg Piper follows the timeline in the development of the language of sexual assault.

But one thing jumped out at me from the start of the case, and it had nothing to do with the allegations.

Minnesota Daily has consistently referred to the unidentified accuser as “victim-survivor” – a term I have yet to see in any other campus newspaper. I decided to ask why.

Note the new, hyphenated word, “victim-survivor,” which might seem to be the worst of all possible worlds. Yet, that was the word the Minnesota Daily settled on.

They actually stuck with “victim-survivor” because they saw it as a way of “being fair to everyone,” she continued: “Victim” is the “traditional” term often used in police reports.

“Survivor” both acknowledges how complainants often describe themselves and how their mental health can be harmed by whatever happened during the sexual encounter, Bekker said.

To the Daily staff, it represented a “middle ground”: Either term by itself felt “biased.” By using the compound term, “we’re saying ‘we’re not making a call on what we believe’” happened in a dispute, she said.

This explanation will likely make a lawyer’s head hurt, it’s so inane. But what it reflects is the shift from neutral in the direction of the language of crime. The contention was that this term says “we’re not making a call,” when it not only makes the call by using “victim,” but doubles down on the call by adding to it “survivor.”

Piper tracks the usage back, how the words “victim” and “survivor” found their way to replacing accuser and complainant, until they reached the point where they were so deeply embedded in the sexual assault and rape language as to not only be pervasive, but to be seen as neutral.

But it didn’t strike these student journalists as a loaded term. As Bekker explained, they perceived it as a halfway point between a term they saw in legal documents (“victim”) and the more casual terminology of the student population (“survivor”).

It was not, despite what might seem obvious to lawyers’ eyes, intended to be pejorative to the defendants.

Bekker said that choosing that phrase was a “judgment call” by the reporter and editor each time, and it was analogous to “alleged” – a way of signaling to readers that “it’s their prerogative” to decide in their own mind how to evaluate a claim.

Even here, however, the notion of “alleged” veers dangerously off course in a way that obviously isn’t well understood. It is not the readers’ “prerogative” to decide whether someone is guilty. Even guilt in the popular sense has to be based on something, on evidence, even if a lesser standard is applied and irrelevant, immaterial, maybe even false, evidence is accepted.

To the extent words still matter to jurors, it’s good to remove conclusory, loaded words from the trial. But given the shift toward guilt in both language and the notions supporting what constitutes neutrality now, we’re way beyond the harm done by loaded words. The only question left is how guilty.

16 thoughts on “Begging The Word Rape

  1. Pingback: Begging The Word Rape | Simple Justice | Freedom & Liberty Blog

  2. Noel Erinjeri

    My takeaway from this article: I’ve been using “complainant” wrongly for 10 years. I’m gonna go sit in the corner with a dunce cap now.

    1. Jim Majkowski

      Michigan likes “victim” so much it often assigns the word a definition much like that of “complainant.” For example, MCLA Sec. 750.520a(s).

  3. Erik H

    Wow. Fascinating case.

    I agree that Kopf was bound to rule as he did. And I wholly support the move away from the language of implied victimization which is so common these days. But I wish Kopf could have figured out some way to certify the question or somehow create a bit more of an appeal record on the issue.

    After all, there is nothing special about this defendant, and there is nothing special about this charge. This is one of those instances where a weak standard of review is not going to benefit anyone. For example, the Nebraska statues don’t use the word “rape” outside the annotations. But neither do they use the word “stole” in the shoplifting statute, or “drunk” in the DUI statute. It’s hard to come up with a cogent legal argument that will produce equally-just results across multiple defendants, absent higher intervention.

    If all trial witnesses are to be limited to statutory language and forbidden to use lay language, that is a big deal and it really should be a state evidentiary standard or set out in a state SC ruling. That seems like too huge of a difference in trial landscape to leave it to trial variance.

    Brilliant job by defense counsel, though.

      1. Erik H

        I know.

        My wish (unsupported by law as I know, so it’s a wish without any foundation) would have been for someone to be able to certify this question to the Nebraska Supremes without the normal super-deferential standard of review given to trial judge evidentiary determinations. Then the supremes could have clarified what should happen. Everyone would be better off.

        1. PDB

          The prosecution should have moved for an interlocutory appeal in the first trial where the judge made this motion in limine ruling.

          1. Erik H

            I don’t know if that would have been wise for them. It would almost certainly be “clear error” review since it involves an evidentiary ruling by the trial judge. Unless the judge was agreeable to certifying for review or unless the judge was exceedingly bad at putting their discretion into writing, the interlocutory appeal is a loser, and creates bad-for-prosecution caselaw.

  4. Stephan R. Illa

    Adjunct Professor of Law Murphy continues to fight the linguistic battle. Her “Judicial Language Project” has a section identifying “problematic language” in court opinions and suggesting Newspeak equivalents.*

    For example, judges are instructed not to use the word “panties,” since it “characterizes the assault as an erotic, rather than violent … it is a word commonly used for lingerie that is intended to be flirtatious, pleasurable and sensual … there is a large cultural difference between typical underwear and panties, since the latter tends to carry different, more feminine influences … panties have become a bit of a cultural icon describing sexual mischief.”

    The site contains many other helpful suggestions for judges seeking guidance, but (alas) cites not even a single opinion from the District of Nebraska.

    * But for Greenfield’s strict prohibition, I would have linked to: [Ed. Note: Deleted. I would delete twice if it was possible.]

  5. Wilbur

    My jaw dropped when I read this and realized that a) attorneys for a victim (sorry, that’s what we call them) would b) flee to Federal court to c) ask a Federal judge to “instruct” a state court judge on the state rules of evidence and motions in limine and d) do so with a straight face.

    You could use these facts as an exam question in a Federal civil procedure course. Or an legal ethics course.

    Are we sure this wasn’t an April Fools prank?

    We did get one question answered: Federal judges (sigh) … is there anything they can’t do?

  6. Wrongway

    Maybe something to watch out for is the sway back & forth of public sentiment, & govt response.. ya know like ‘tough on crime’ & now it all needs to be ‘reformed’..
    could the push back .. ‘go to far’ & what would that look like ??
    in a perfect world, correcting a problem shouldn’t involve retaliation..
    we ain’t that world.. pendulums swing, & if people jump on them, they swing farther.. as we’ve all seen..
    so my question is .. is this something to worry about ??
    the opposite of this title IX bullshit ??

    1. SHG Post author

      Your general point is an evergreen question, which might be avoidable if we could all discuss these issues like grown-ups. As to the specifics, here’s how it plays out:

      DA: And what happened next, you poor victim-survivor?
      Witness: He raped me?


      DA: And what happened next, Ms. Jones?
      Witness: He pushed me to the ground in the dark alley, pinned my arms to the ground with his left hand and ripped my skirt up with his right hand.

      Which one is more persuasive evidence that a rape occurred?

  7. delurking

    I don’t know, SHG. Language evolves. “Rape” isn’t what it used to be, so I’m not sure any longer that it is a horrible word. Do the youngsters these days feel that it is? It seems to me that they throw the word around with wild abandon. Similarly, “victim” doesn’t mean what it used to. To be a victim now, you have to go through something that doesn’t bring you joy. I am a victim of my commute this morning, and a survivor of it. Maybe someone needs to tell these old-fart judges what the current meanings of words are, so they don’t put ridiculous restrictions on what people can say.

    Anyway, less tongue-in-cheek, I just realized this is from 2007. Was it hidden until now or something? Maybe the words meant something different then.

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