Taboo Trial Words: 'Drunk,' 'Victim,' 'Rape'

July 1, 2008— -- "Rape." "Drunk." "Victim." "Crime scene." "Homicide." These are the words one would expect to hear in trials for such crimes as drunken driving, robbery, murder, sexual assault.

But these are just a few of the words that have recently been banned from criminal trials around the country in what some prosecutors warn is a growing and disturbing trend.

After a 2007 rape trial in Nebraska in which the alleged victim was barred from using the word "rape," Joshua Marquis, vice president of the National District Attorneys Association, said he was "stunned at the number of phone calls I got -- prosecutors saying they had been in trials where the words 'murderer' and 'crime scene' had been removed" from testimony.

Word bans are "a sort of virus; a very very bad thing," he said. "'Murder' becomes 'death' and 'rape' becomes 'sexual intercourse.'"

"Rape is a crime of power, not about sex, so when a victim has to get up and talk about when she had 'sexual intercourse' with the accused ... it's just wrong."

Restricting what can and cannot be said at trial is nothing new and even prosecutors admit it is appropriate in some circumstances. Defense attorneys for Chicago mobster Chris Petti had the word "mafia" banned from his 1990 trial. The word "victim" was stricken from testimony in Kobe Bryant's 2004 sexual assault case. In other cases, judges have banned words like "terrorist" and "gang."

From a defense attorney's perspective, the logic is obvious: Words like "victim" "homicide" and "crime scene" are often barred from testimony as "the very words themselves assume facts not in evidence," said Kurt Kerns, a defense attorney in Wichita, Kan.

"There is only a 'crime scene' if there is a crime, which is a question for the jury to decide," he said.

Dan Monnat, a defense attorney in Wichita, said he almost always files motions to ban words like "victim." "To permit witnesses to call the complainant a victim where the whole issue is whether or not the complainant has been victimized is inconsistent with the presumption of innocence that every accused person is entitled to," he said.

But the practice gained national attention -- and criticism -- after a judge in Nebraska banned a woman who said she was raped from using the words "rape" or "victim" in her testimony. Since then, Marquis said, prosecutors are facing the issue more and more.

Tory Bowen continued to use the taboo terms in her testimony because she said prohibiting her from using the word rape was "a slap in the face to the victim." She explained that rape has always been a he-said-she-said type of case. "This takes away the victim's right to say it, so the jury only has his word."

The worst part, said Bowen's attorney, Wendy Murphy, was that the jury did not know the judge forbade Bowen from saying "rape." She questioned whether a jury would call the crime "rape" if the victim herself did not.

Bowen was held in contempt for disobeying the judge's order and without her testimony the judge declared a mistrial. A second trial also ended in a mistrial after the judge said media publicity prevented the defendant, Pamir Safi, from receiving a fair trial. The state dropped the charges, saying too much evidence had been barred from trial.

Bowen appealed the ban, but a federal court upheld it. In a footnote, however, U.S. District Court Judge Richard Kopf wrote, "there is something profoundly disturbing about a judge telling a citizen that she cannot say she was raped when testifying as a victim in a criminal case, particularly when the victim is presumably trying to do nothing more than describe what happened to her. This brings to mind the blue burkas of a distant place."

Since her experience, Bowen has become a rape victim advocate, and she fears the threat of a language ban will further deter already timid rape victims from coming forward. She said one rape victim has called her before a trial, frantically saying, "I just don't want the language ban. I just don't want to call it sex. It wasn't sex."

Though Safi was acquitted of all charges, other cases in which the word rape was banned have ended with a conviction.

Jack King, spokesman for the National Association of Criminal Defense Lawyers, supports the growing trend, citing mistakes such as the Duke University lacrosse team case. Everyone was so used to using words like "victim" and "rape" that the presumption of innocence was forgotten, he said.

But, said Marquis, if a prosecutor can't stand in front of a jury and say, "This person committed this crime, they are guilty," they are stripped of their ability to make a case against the defendant.