Friday, June 22, 2007

What's in a Name?

Some people have been arguing that it makes sense for a judge to disallow "rape" "sexual assault" "sexual assault kit" and "victim" from a rape trial because using these terms presumes guilt.

First of all, I was under the impression that the prosecution is presuming guilt (based on the evidence they've gathered) - that would be the point of the trial, after all.

Secondly, it may be different in other states, but as far as I know my state allows prosecuting attorneys to use the legal definition of the crimes that they are accusing the defendant of. See the previous sentence and "rights of the accused" as to why.

Third, banning "rape" and "sexual assault" from witness testimony is not the same as requiring that attempted murder victims use words like "kill" or the like instead of word "murder"- which doubles as a legal term. This is because "rape" does not have as many synonyms as "murder" does. The judge has effectively banned about the only two terms that are used by laypersons to describe the crime in question. And the latter is mostly by used only by laypeople if they write for newspapers or if the assault is something less than rape.

Furthermore, said persons may want to look up the legal definition of "rape" in the state in question before they focus on "rape" as a legal term. It's not. The legal term is "sexual assault." (hat tip Kristen)

Fourth, if legal meaning of "sexual assault" (or "rape" if that were the case) prevails above all else despite the profound lack of clarity that will result in the victim and the prosecutors not being able to use this term, then the legal meaning of "victim" should prevail as well. The state in question defines "victim" (at least as it pertains to sexual assault) to be

the person alleging to have been sexually assaulted

Yes, "alleged" is included in legal definition of "victim" in the state in question. I rather think it's quite likely that this is the prevailing legal definition of the term.

While I can see the logic behind arguing that terms like "victim" and using the legal definitions of crimes to mean something nonlegal can be confusing for jurors and might prejudice them, I hardly think that it does so to a greater extent than banning both "rape" and "sexual assault" - while simultaneously allowing for "sex" and "sexual intercourse" (which presume consent) to be allowed.

Amanda, Jill, Bean, and Shakesville have more. (Shakesville is down, I will add when they come back up.)


Since that particular argument also seems to boil down to "such things are standard" - can get a special "wha?" As in, "then why the need for special orders?"

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