IANAL.... Say that again. A victim (Petitioner? Complainant?) in court can't plainly allege the crime for which a defendant is being tried?

It's a head game.

Can't they test for date rape drugs directly at the hospital? And what sort of moronic system only has one set of samples?
And if her vomit was in the car why wasnt that a larger argument?

And most importntly if she never leaves a bar with someone she doenst know then why did her own freinds say they thought nothing of her doing so?

I have been reading about this case for several months on various blogs and this is the first time I have heard anything about her being drugged. (Drunk yes, drugged no.)

Slightly off-topic, but something I've pondered for a while.
If the guy and the girl are both drunk when they have sex, can he accuse her of raping him too?

She can't say "rape"? That just seems utterly ridiculous. It seems reasonable to prevent other people (say, a nurse) from saying that, but the victim? What an impression it would make to hear a victim repeatedly dance around that word. Seems like that would cast doubt on her if the jury doesn't know she can't say the word. I would wonder why she didn't want to call it rape.

I think two quotes from the article stand out:

"To say that there is a First Amendment right of the witness to say whatever they want in a courtroom is a silly notion." Clarence Mock, defense attorney for the accused.

You take an oath before you testify in court to “tell the truth, the whole truth and nothing but the truth.” That cumbersome phrase is still used because of what it mandates, what it includes and what it excludes. A witness is not allowed to mix in what he or she felt happened or leave out the context in which something happened. The oath, and even the whole trial process, might be called a limitation on the first amendment right to free speech.

"The notion that the word rape is so charged derives from an historical willingness to place a higher burden on rape victims who come forward" Michelle Anderson, an expert in sexual violence and the law, and the dean of the City University of New York Law School.

Statements of genuine wisdom and compelling logic are phrased simply and elegantly. A “notion” that “derives from” an “historical willingness” is a convoluted train-wreck. Boiled down, way, way down, to its essentials, Anderson’s argument is that the presumption of innocence for those accused of sex crimes should be abolished. Now if they start stoning people DULY CONVICTED of sex crimes, you’ll find me in the front row with a tidy pile of fist-sized rocks. But the presumption of innocence is one of those rights we all have stored in our neighbor’s pocket, it doesn’t do you any good unless somebody raises it on your behalf.

I will remove myself from any potential jury pool right now and say that this scumbag probably raped her. But a judge and jury and courtroom have very little ability to make this situation right without making a lot of other things wrong.

"A victim (Petitioner? Complainant?) in court can't plainly allege the crime for which a defendant is being tried?"

Of course she can, Crid. She can say "he forcibly thrust his penis inside of me without my consent" or (more specific to this case) "I woke up and he was thrusting his penis inside of me; Prior to that I was not awake and unable to consent." But she can't make legal conclusions while presenting testimony.

In fact, this is what typically happens in most rape trials, including the one a few years back that included me on the jury. And that was a 13 year old girl who was able to give accurate, reliable, yet perfectly legal, testimony that led to her rapist's conviction. Any decent prosecutor will know how to properly testimony from a victim on direct.

People make the mistake that the court system is about Justice, but actually a contest on the competency of two attorneys.

Everyone here is well aware of the mistakes of Bowen's attorney in handling the matters during the past trials. The current Time article continues to show more problems like the attorney’s inability in handling her client’s actions that will cause a mistrial during the jury selection for the second trial.

Joe -

I think that second mistrial has already been declared for the very reason you cite.

JL

Snakeman - Is this situation (not using the word for a crime to avoid making prejudicial statements) common? A witness in court can't say "I was standing on my front lawn when he jumped out of his car and assaulted me," or "The bruises on my face in that picture came from when my (husband/wife) battered me," or "I was standing right and clearly saw the defendant pull a knife and murder the victim"? Seems unlikely to me, but what do I know.

People make the mistake that the court system is about Justice, but actually a contest on the competency of two attorneys.

And how well the attorneys know each other, and the judge...

My mistake in phrasing, Snakeman99. A rushed post. Instead of 'will cause', I should have used 'did cause' in the sentence. Thanks for clarifying it.

I need a power nap.

Justin -

Yup. Your examples would more likely show up in court as:

"I was standing on my front lawn when he jumped out of his car and threatened me,"
"The bruises on my face in that picture came from when my (husband/wife) hit me,"
"I was standing right and clearly saw the defendant pull a knife and stab the victim"

"And how well the attorneys know each other, and the judge."

Agreed, JC.

I've just recently read about this case on Time and looked at blogs concerning the issue. It seems to me that the courts are more focused on protecting the first amendment rights of an alledged rapist rather than a victim, which sadly seems to be the case far to often. It's a shameful side effect of the American judicial system.

alleged rapist and victim? not alleged victim?

And nothing of the holes in her testimony, seems you've already made up your mind.

Nap time over.

Actually, the problem is allowing a criminal case evolve into a political one. The current events of the case make the actual event in question look purely incidental.

Which will make a future case of rape far more problematic to prosecute. The legal system is full of errors, but the scrutiny needs to be focused on the decisions of this particular attorney and client.

Grace, he may have raped her. But, unless there's evidence proving he did, it's wrong to convict him.

Snakeman - Thanks for the clarification.

"It seems to me that the courts are more focused on protecting the first amendment rights of an alledged rapist rather than a victim"

Actually, Grace, the courts appear more focused on protecting the fourth and fourteenth amendment due process rights of an alleged perp. As well they should. Should you ever be accused of a crime, you'll be thankful they did.

>Of course she can, Crid. She can say "he forcibly thrust his penis inside of me without my consent" or (more specific to this case) "I woke up and he was thrusting his penis inside of me; Prior to that I was not awake and unable to consent." But she can't make legal conclusions while presenting testimony.

I can see snakeman99's point here. It still gets the point across without inflammatory language. What I don't understand is that the terms "sexual assault kit" and "sexual assault nurse" were also banned. A sexual assault kit should be described how, then? A "sex kit"? It's called a sexual assault kit because it's used after an alleged sexual assault. Used, I presume, by a sexual assault nurse.

It is also called a "Vitullo kit", named after the person who developed it, Louis Vitullo.

> I was not awake and unable to
> consent." But she can't make
> legal conclusions while presenting
> testimony.

A distinction without a difference. People hate law for a reason.

A distinction without a difference. People hate law for a reason.

I'll second that, Crid.

(I was wondering if the absolute privilege attached to testimony in court is purely a UK legal feature, because it appears to do away with the carefully filleted speech demanded here).

Tory Bowen can't testify that she was raped without contradicting her testimony that she remembered nothing until becoming concious during intercourse which she has no recolleciton of consenting to. Having no recollection of consenting to is not the same as not consenting to. Since she admits to taking a mind altering substance, alcohol, of her own free will and choice a simple explanation could be she consented and doesn't remember doing so. The jury has to decide if her not remembering consenting means that she in fact did not consent. Ms. Bowen only assumes that she didn't consent. She can't testifiy for sure be cause she has no concious memories of the timeframe when a consent would have taken place.

I have have numerous experiences where individuals have said things and not remembered shortly there after saying them. Many of these instances were because the individual has their mind and memory affected by alcohol. Some occured when the invidual suffered from a form of sleep walking where we had lengthy conversations where I could not tell until later that they were sitting up in bed and talking in their sleep. The instances of talking in their sleep did not involve the individuals consuming any mind altering substances in the 48 hours previous to the incident. Who know what could have happened in they had done so. One indvidual was a college roomate of mine who at age 23 had no idea that he talked in his sleep.

Ms. Bowen should be limited to testifying to what she remembers seeing, hearing, and feeling. Assumptions, even if based on facts, should not be allowed as testimony in court.

Personally I think she is pushing the issue of not being able to use rape because she knows she doesn't have a chance to win without attempting to prejudice the jury throught emotional appeals instead of factual appeals.