Judge Tosses Suit Over R-Word Ban
Updated: A Nebraska federal judge says he doesn’t like a state judge’s ban on the word “rape” in an upcoming trial, but he’s not going to do anything about it.
U.S. District Judge Richard Kopf of Lincoln, Neb., dismissed a suit challenging the ban yesterday, the Associated Press reports.
Plaintiff Tory Bowen had contended the restriction on testimony against her alleged assailant in the state rape case infringed her rights to free speech, due process and peaceful assembly. (See this prior ABAJournal.com post for details.)
A state lawmaker who contends Bowen’s suit is frivolous filed a lawsuit against God to make his point. Kopf had similar reservations. He said the suit violated Rule 11’s ban on frivolous litigation and ordered dismissal as a sanction. He also ordered Bowen’s “passionate counsel to more carefully consider the limits of federal declaratory relief before filing similar suits in the future.”
Kopf wrote that there was no evidence the trial judge acted in bad faith. “This case is not ‘extraordinary,’ ” he wrote in his opinion (PDF posted by How Appealing). “Witnesses who also claim to be victims are subjected to all sorts of limitations on their testimony in all sorts of criminal cases in all sorts of courtrooms for all sorts of reasons. Ms. Bowen and her case are not special.”
But in a footnote Kopf took issue with the wisdom of the state judge’s decision. “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,” he said.
“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.”
The case has ended in two mistrials. A third trial is pending.
Originally posted 09-26-2007 at 11:07 AM.
