What do we do when our nation’s Bill of Rights clashes with itself? That’s a question that many courts are finding themselves forced to answer recently, particularly as it relates to sexual assault and rape cases. Although there is no specific presumption of innocence in the Bill of Rights, half of the first 10 amendments to the Constitution refer to how a citizen of this country can expect to be treated before, during and after a trial. The First Amendment is generally cited as giving citizens freedom of speech, although what it actually refers to is the government not making laws prohibiting it.
According to a national news story that published earlier this week, a growing number of courts are restricting the descriptions of alleged crimes so as not to prejudice the jury against the defendant. The cases cited in the story involved sexual assaults. During testimony, the victims are prohibited from using terms like “assault” or “rape” and are instead instructed to describe what transpired using words like “intercourse” or “sexual relations.”
The instructions have led to appeals and additional hearings with strong arguments being made by both sides of the issue. Using a word like rape in court could be considered prejudicial, and might influence a jury to consider a defendant guilty before all the evidence is heard. That’s what defense lawyers argue in making their case for using less inflammatory language. In making those arguments, they say they are protecting their client’s own rights to a fair trial — and an impartial jury, which is guaranteed in Amendment Six. As advocates for the accused, they are operating within the boundaries of the legal system. And any of us who should find ourselves accused of a crime would expect that from our attorney.
The word rape, though, can be found in the dictionary and describes a particular kind of assault. It describes non-consensual sex, as well as plundering. It may be a damning accusation, but it might also accurately describe a particular event. Victims advocates argue that to describe the assault in any other way, to remove the descriptions of violence and the nature of the attack, does not adequately describe what happened — not to mention the fact that they say it takes away the victims First Amendment rights.
So now judges are being asked to make decisions about what can and can’t be said in court. But is it too large a stretch to think that victims won’t soon be asked to describe all their attacks in more benign and friendly sounding terms? Rather than being “stabbed and beaten,” the victim may find himself instead saying that he was “poked and prodded.” The victim of a hit-and-run accident wasn’t run into, they were instead “nudged by a mystery vehicle.” All joking aside, the problem may already be more widespread than the article indicated. Its subject was rape cases — which are going to grab more attention than a typical hit-and-run.
There is certainly nothing wrong with providing fair trials for every defendant — we expect that as a fundamental right in this country. Using intentionally inflammatory language that might prejudice a jury shouldn’t be tolerated in a courtroom. Making statements or claims that have no bearing on the issue the jury is deciding can be prejudicial.
Taking it to the extreme that crime victims cannot describe to the jury what injuries they’ve suffered, though, is taking it too far. A hit-and-run is not a nudge, it’s an accident with potential for property damage and personal injury, with a defendant who’s trying to escape responsibility. Rape is not a sexual encounter, it is an act of violence by one person against another. To describe it as something else diminishes the severity of the violence. That’s not a constitutional rights debate, it’s acknowledging a crime for what it is.
Bill Crist is associate publisher and general manager of the Brownwood Bulletin. His column appears on Wednesday. He may be reached by e-mail at firstname.lastname@example.org.