A legal conclusion, perhaps. So thought a judge in Nebraska, who banned the use of the words rape, assailant, sexual assault rape kit, victim and sexual assault from a trial. This has Dahlia Lithwick of Slate unhappy. Corey Yung of Sex Crimes is also unsure of it.
Barring a slippery-slope argument (which may be a strong one), I don’t see what the hubbub is all about [NOT from an emotional point of view; simply a legal one].
“Did he rape you?”
“Did he attempt to have sex with you?”
“Did you consent to having sex with him?”
Rape becomes non-consensual sex. In some cases, the jury is called upon to decide whether the “victim” was indeed “raped”. To continually refer to the act as “rape” (which is a fact for the jury to decide), might subconsciously “poison” the minds of the jury.
In CT, a 2005 Supreme Court decision left standing an Appellate Court decision [State v. Cortes (pdf)]which held that the use of the word “victim” by the court (76 times) deprived the defendant of a fair trial.
In cases in which the fact that a crime has been committed against the complaining witness is not contested, but only the identity of the perpetrator is in dispute, a court’s use of the term ‘‘victim’’ is not inappropriate. In cases in which the fact that a crime has been committed is contested, and where the court’s use of the term ‘‘victim’’ has been the subject of an objection and has not been the subject of a subsequent curative instruction, a court’s use of the term may constitute reversible error. The danger in the latter type of case is that the court, having used the term without specifically instructing the jury as to its intention in using the term, might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant.
We agree with the defendant that given the particular circumstances of this case, as well as the fact that the complainant’s credibility was a critical issue, the better practice would have been for the court to refer to the complainant by some term other than ‘‘victim.’’ We conclude that the court’s instructions constituted reversible error.
Now, the slippery-slope argument that Dahlia Lithwick makes is a valid one, but perhaps not fatal to this judge’s position. How many times, in a trial, does a prosecutor ask of a witness: “Is the defendant the man that murdered the victim?” Not many. It is more likely that the question posed is: “Did you see the defendant shoot the victim?” “Is the defendant the man that killed the victim”?
Shoot; kill – not legal conclusions. Murder, probably.
However, despite this lengthy post, I could be convinced to change my position. Have at it!