LINCOLN, Neb.—When Pamir Safi is tried for sexual assault next month, prosecutors and witnesses won’t be allowed to use the terms “sexual assault” or “rape” to describe what happened.
That’s because Lancaster County District Judge Jeffre Cheuvront agreed to bar those words after defense attorneys argued the point. Prosecutors don’t think the ban is needed, but they say they’ll live with it.
But the woman accusing Safi of assault, Tory Bowen, said the judge’s order forces her to change the way she describes events. It’s not clear whether the restrictions played any role in the hung jury that derailed the 33-year-old Safi’s first trial in November.
Bowen testified for nearly 13 hours at the first trial, and she said the ban had a huge effect because she had to pause and make sure her words wouldn’t violate the ban. Bowen worries that the pauses hurt her credibility.
“In my mind, what happened to me was rape,” said Bowen, 24. “I want the freedom to be able to point (to Safi) in court and say, ‘That man raped me.'”
But Clarence Mock, one of Safi’s attorneys, said Cheuvront made the rulings to keep the trial fair. The question of whether Safi sexually assaulted Bowen is one for the jury to answer based on evidence both sides present, Mock said, adding that witnesses shouldn’t make legal conclusions.
“Trials are competing narratives of what happened,” Mock said. “They should not turn on politicized hyperbole. They should turn on the facts.”
Safi and Bowen met at a Lincoln bar on Oct. 30, 2004. Witnesses at the first trial said the two had drinks and left together after the bar closed.
Bowen said to police later that she doesn’t remember most of that night and didn’t willingly leave with Safi or have sex with him later.
Seven of the jurors at the first trial voted to convict Safi, but Chuck Morrison and four other jurors were either undecided or in favor of acquittal. Morrison said he doesn’t think the word ban was significant.
“I don’t see that as having a dramatic effect,” he said. “I knew from her testimony that, in her own mind, she thought she had been sexually assaulted.”
But law professor Wendy Murphy said the ban’s effect could have been subtle. Murphy, who teaches at the New England School of Law in Boston, has done research on the role of language in court.
“It’s very difficult to explain why jurors feel the way they do,” she said. “The point is, language is so passively absorbed they don’t even know it.”
Bruce Lyons, a past president of the National Association of Criminal Defense Lawyers, said he’s familiar with similar rulings in other jurisdictions and doesn’t think the language ban is a problem.
The Fort Lauderdale, Fla., based lawyer said prosecutors should be able to ask witnesses the right questions to prove a crime occurred without using words like “rape.”
“A prosecutor who has the facts does not have to rely on words like ‘victim’ or ‘rape,'” he said. “I don’t see what all the hullabaloo’s about. It seems like someone’s looking for a scapegoat.”
Lancaster County Attorney Gary Lacey, whose office is prosecuting the case, said judges often prohibit attorneys from using words like “defendant” or “victim” in the courtroom. But he said he could not recall a bar on the word “rape.”
“Judges are going to bend over backwards to make sure nothing’s prejudicial,” he said. “I don’t agree with it, but we’ll have to live with it.”
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Information from: Lincoln Journal Star,
