Mimesis Law
21 November 2017

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).

Photo credit: Lincoln Journal Star. Protests outside the district courthouse in Lincoln in 2007 after Judge Cheuvront ordered Tory Bowen not say she was raped during a 2006 sexual assault trial and a retrial the following year.

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. . . .”

 

19 Comments on this post.

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  • Andrew Fleischman
    25 January 2017 at 8:32 am - Reply

    Judge,

    In the past, I have sometimes been a little disdainful of law professors for having only a theoretical view of the law. With all due respect to Ms. Murphy, I believe I may not have been disdainful enough. It is one thing to write about how the law should be, and another to expect a judge to enforce that view as though it was already settled.

    All the best,

    Andrew Fleischman

    • Richard G. Kopf
      25 January 2017 at 11:15 am - Reply

      Andrew,

      In fairness to Ms. Murphy and the other academics, I suppose there are federal district judges who are more inclined to “make law” than I am when it comes to plaintiffs who might be considered sympathetic. As counsel found out, I am not one of those judges. Frankly, I am not big on sympathy.

      All the best.

      RGK

  • maz
    25 January 2017 at 9:48 am - Reply
    • Richard G. Kopf
      25 January 2017 at 10:58 am - Reply

      MAZ,

      Thank you. My computer at work allowed me to access the entire article and I used that hyperlink even though it was to Hein. It wasn’t until my post was done that I realized it stood behind a paywall for regular folks. I appreciate your efforts taking the time to provide a link to the article that is free.

      All the best.

      RGK

  • Mario Machado
    25 January 2017 at 3:09 pm - Reply

    Judge Kopf,

    For a second I wondered what could possess someone to file something so arrogant, misguided, and incredibly stupid. Your initial assessment of calling it “highly unusual” was generous. Then again, her complaint stinks of self-righteousness, so everything goes out the window (even the innocents) when someone thinks they’re doing god’s work.

    I try not to remember that people like Ms. Murphy also get to teach law, because every time I do, I think we are all doomed.

    Great post, Judge, and thanks for getting my blood pressure up.

    Mario

    • Richard G. Kopf
      25 January 2017 at 4:07 pm - Reply

      Mario,

      Thank you for overly kind comment. By the way, the older you get the more worried you get about your blood pressure. All the best.

      RGK

      • Greg Prickett
        25 January 2017 at 5:58 pm - Reply

        That’s what all those pills are for, or at least that’s what the doctor tells me…

        You’re correct about the culture war. I worked in a county with a major public university, and 15-20 years ago, the DA would refuse to prosecute for a false report of rape, even if we could prove it, unless the “victim” confessed.

        Remind me sometime, Judge, and I’ll tell you about a Valentine’s Day “rape” and the circus that ensued (off-line, I’m not going to post the story in public).

        • Richard Kopf
          25 January 2017 at 8:05 pm - Reply

          Greg,

          Will do! All the best.

          RGK

  • Clonedaddy
    25 January 2017 at 10:43 pm - Reply

    Judge,
    Apparently, you’ve been sitting on your ever-expanding asterisk.
    A hot key, properly applied, might help .

    • Richard Kopf
      26 January 2017 at 9:01 am - Reply

      Clonedaddy,

      Thanks, but no thanks. A “hot key” sounds dirty.

      All the best.

      RGK

      • shg
        26 January 2017 at 9:31 am - Reply

        I hear they can now train dogs to press the hot key for you. If only there was someone with an extra dog to be trained?

        • Richard Kopf
          26 January 2017 at 9:59 am - Reply

          SHG,

          You are one sick but off-the-charts funny bastard. May any cat you own or stroke have feline distemper!

          All the best (but I never mean it).

          RGK

          PS It ain’t gonna happen. Nope. Given my advanced age, I’d have to set up a friggin trust fund to care for the “progeny” of Bullet.

  • Paul Cantrell
    26 January 2017 at 9:36 am - Reply

    Judge,

    Thanks for an interesting article, it’s ones like these that make me love this web site.

    As a layman, I note that the article and the other comments may be slightly over my head, although I get the gist of it. However, I have a question about the situation of a judge limiting words that can be used by witnesses.

    My question is, if the witness means “rape” and not “consensual sex”, is the judge limiting the word “rape” or the idea of “rape”?

    In other words, is the witness free to say, in each case where they meant “rape” “he forcibly, against my will, and with violence, vaginally penetrated me with his penis while I screamed for him to stop”? (and if so, who explains this to the witness? I presume the judge?)

    If they can, it seems like we just end up with “a-bunch-of-words-together-that-can-not-be-mistaken-to-mean-anything-but-rape-but-the-judge-won’t-let-me-use-the-word” and if not then it seems like the witness is being prevented from describing what they observed or experienced.

    The former seems kind of silly and the latter seems extremely dangerous for the judicial system. I’m just curious which situation is occurring?

    I certainly understand the idea of trying to avoid prejudicing the jury (knowing a friend who had a friend who supposedly was put away for rape that probably wasn’t), but it seems very dangerous to start limiting how a witness can express themselves. Not *what* they can say like heresay, but *how* they choose to say it seems a dangerous precedent.

    • Richard G. Kopf
      26 January 2017 at 12:55 pm - Reply

      Paul,

      Your comment reflects my concern as well. I wrote a footnote in the opinion which preceded the one quoted at the end of the post. That footnote stated:

      “For the life of me, I do not understand why a judge would tell an alleged rape victim that she cannot say she was ‘raped’ when she testifies in a trial about rape. Juries are not stupid. They are very wise. In my opinion, no properly instructed jury is going to be improperly swayed because a woman uses the word ‘rape’ rather than some tortured equivalent for the word. But please read the next footnote.”

      All the best.

      RGK

      • shg
        26 January 2017 at 3:03 pm - Reply

        I suggest that the language problem is a “begging the question” issue of logic. There is no rape, no victim, until the jury finds that a crime has been committed, and that crime meets the elements of rape. If the language of testimony presupposed the conclusion, then it could prejudice the jury. Is it a euphemism to testify that the defendant pointed a gun, threw a person to the ground, ripped off her clothing and forcibly inserted his penis into her vagina while muttering, make a sound and I’ll kill you”? Much more informative than saying “I was raped,” and far more damning as well.

        Just give the facts and let the jury do its job of determining what conclusions should be drawn from the facts.

        • Richard G. Kopf
          26 January 2017 at 3:49 pm - Reply

          SHG,

          Perhaps the two words “rape” and “facts” are different sides of the same coin. One should not utter the former without providing the latter. All the best.

          RGK

          • shg
            26 January 2017 at 4:09 pm -

            Both words seem to elicit visceral reactions these days, so you’re probably right.

  • Michael Ausbrook
    27 January 2017 at 9:14 pm - Reply

    Judicial immunity aside, Younger v. Harris (http://tinyurl.com/ju2cpp6) tells fed courts to butt out of state criminal prosecutions–except in cases like this: http://tinyurl.com/h2dupfh. And it’s not like Younger was decided on the last day of last term.

    Nebraska–and the 8th–must be a kinder and gentler place than Indiana and the 7th. This claim would have been first laughed out of court–and then there would have been the non-neglible sanctions.

    What a waste of people’s time on the planet which, perhaps fortunately, is not unlimited. (It’s what gives evolution its up-side: maybe my child–or his–will not be a snout, even if I am.)

    • RICHARD KOPF
      28 January 2017 at 9:32 am - Reply

      Micheal, I love the “snout” reference. Loren Eiseley lives.

      Good to hear from you. All the best.

      RGK