Words, Free Speech, and Testimony

An interesting issue raised in a rape trial in Nebraska:  does using the word “rape” to describe an event have an unfair emotional impact?  Basic facts:  man and women hook up at a bar, have some drinks, go home, and sexual intercourse occurs.  He says later it’s consensual, she says it was rape because she was too drunk to consent and never really wanted to have sex with him.  An unfortunately common story – the interesting tactic here is that the defense attorney said that even using the word “rape” to describe the events of that evening, because the word is so charged with emotion, will unfairly prejudice the jury to convict.  Even more unusually, the victim claims that the court’s order requiring the use of more clinical terms like “sexual assault” and “he was inside me” violates her First Amendment rights to use the word she believes best describes what happened.


Seems to me that if the victim thinks she was raped, she should say so – but I don’t think she has a First Amendment right to do so.  This is a criminal proceeding, and that means that she is not petitioning the government for a redress of grievances; instead, the government is prosecuting someone who stands to lose his liberty and may be innocent of any crime, so the accused’s rights are paramount, not those of the alleged victim.  And, the court has to have the ability to control the proceedings so that the trial is conducted legally and fairly.  If individual witnesses have rights that override a court’s ability to control the flow of testimony, that’s a big problem.  With that said, the court also has a duty to exercise its discretion in controlling testimony such that substantial justice is achieved along with conforming to the requirements of due process and other important laws.  Merely saying the word “rape” is not prejudicial – if the defendant has committed this act, it is just and fair that it be called that.  We don’t require antiseptic terms like “the taking of human life” when we mean “murder,” and the prosecution is entitled to accuse the defendant of a crime – by name – if there is a good-faith belief based on substantial evidence that the defendant is guilty of that crime.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.