The Word “Rape”
January 25, 2017 (Fault Lines) — I was sitting on my ever-expanding ass, minding my own business, when one of my law clerks came to me with a declaratory judgment complaint that had just been filed. The plaintiff wanted an expedited hearing.
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.*
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, Ms. 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.
Here is how I characterized the background:
The plaintiff has filed a very unusual lawsuit that seeks to interject this court into the ongoing administration of a pending state criminal prosecution. 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’.”** Asserting that the criminal case has resulted in two mistrials, and a third trial is scheduled to take place in the next several months, the plaintiff requests “an expedited bench trial” and she seeks an order “declaring that the defendant herein has acted in violation of the federal constitution.” Because she apparently recognizes that the law forbids such requests, Ms. Bowen does not seek damages or injunctive relief.***
Bowen v. Cheuvront, 516 F. Supp. 2d 1021 (D. Neb. 2007).
It is fair to say that Judge Cheuvront had become the center of a national firestorm. See e.g., Meg Massey, Putting the Term “Rape” on Trial, Time (July 23, 2007); Dahlia Lithwick, Gag Order, A Nebraska judge bans the word rape from his courtroom, Slate (June 20, 2007).
The federal complaint was, as I indicated at the time, highly unusual. This was true for a variety of reasons, not the least of which was that if the judge was forced to respond to the federal suit it could easily cause his recusal in the pending criminal case.
In my view, the filing of the case required a response that was equally unusual. I ordered that counsel for the plaintiff show cause why they had not violated Rule 11, and also ordered that Judge Cheuvront need not respond to the complaint unless and until I ordered him to do so.
Ms. Murphy and the other lawyers responded to my show cause order. Concluding that the response was insufficient, and in a detailed opinion (which you can read by accessing the link provided above), I found that Rule 11 had been violated because the claim for declaratory relief lacked precedent and because there was no nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. I gently reprimanded counsel and dismissed the case without prejudice. Three months later, and while the federal case was pending on appeal, the prosecutor dismissed the criminal case.****
So why do I write about this case? Particularly in places like Lincoln where Universities are situated, there is now and has been for some time a culture war raging about sexual assault, and date-rape prosecutions in particular. That’s fine. Whatever floats your boat.
But when a criminal prosecution is commenced in a state court regarding a date-rape case (or, for that matter, any criminal case), a federal judge has no business “guiding”***** a state trial judge about the rights of alleged victims. As I said at that time,
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. We may, however, seem more arrogant. For myself, I plead guilty to that charge.
Richard G. Kopf
Senior United States District Judge (Nebraska)
*In January of 2017, Ms. Murphy declared: “Things are so bad on college campuses, women are more likely to be sexually assaulted if they go to college than if join the military or don’t go to college at all. No other group in society faces an increased risk of violence by becoming educated.”
**The defendant was represented by Clarence Mock, one of Nebraska’s preeminent criminal defense lawyers. I have written about him in Fault Lines before. Mock is one of the few prosecutors who have successfully broken through the blood-brain barrier to become a real CDL.
***For a particularly well-researched and thoughtful examination of the facts of the Safi criminal case and the competing policies behind restrictions on words like “rape” in date-rape cases, see Jason Wool, Maintaining the Presumption of Innocence in Date Rape Trials through the Use of Language Orders: State v. Safi and the Banning of the Word “Rape”, 15 Wm. & Mary J. Women & L. 193 (2008-2009).
****The Eighth Circuit dismissed the appeal and vacated my opinion as moot. Bowen v. Cheuvront, 521 F. 3d 860 (8th Cir. 2008). The lawyers for Bowen filed a petition for certiorari. It was denied without comment.
*****In her complaint, Bowen specifically asked that I give Judge Cheuvront “[g]uidance” regarding the “practice of state court judges issuing orders restricting the language of victims and witnesses. . . .”