Tory Bowen claims she was raped, charges were brought against her alleged rapist and the trial began. When Bowen was asked to describe what happened to her in front of the jury, she was not allowed to use the words rape, nor call it sexual assault.
She was also not allowed to call herself a "victim" nor refer to the man she claims assaulted her as an "assailant".
Her lawyers did file a lawsuit which caught the attention of free-speech proponents. That lawsuit was dismissed but U.S. District Judge Richard G. Kopf did write at the time, "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."
Her attorneys plan to bring it to the Supreme Court.
The first case ended in a hung jury and the second was declared a mistrial in July of 2007, before the trial even began with the judge saying that the publicity surrounding the case would have tainted any potential jurors.
The case itself is about credibility, the alleged victim Tory Bowen claims that she was inebriated and drugged and did not give the alleged assailant, Pamir Safi, consent, and Safi claims it was consensual.
Bowen said she had gone with a female friend to a pre-Halloween costume party at a downtown Lincoln tavern and had consumed maybe four mixed drinks before the bar closed.
She said she didn't remember leaving the bar, although a surveillance camera showed her leaving with Safi.
The next morning, she woke up naked with the man atop her. Bowen said Safi stopped the sex when asked.
After the first trial ended with a hung jury and before the second trial was declared a mistrial, Wendy Murphy, a former county prosecutor in Massachusetts who teaches at the New England School of Law in Springfield said, "When victims have to "sterilize" their testimony by avoiding certain terms, juries tend to doubt their credibility."
There wasn't a third trial scheduled because prosecutors dismissed the case because of the judges orders on what words could be used and limits on evidence, including prior rape allegations against the defendant.
In a case where it becomes his word against hers, Bowen says, "The judge took my words away from me.”
Defense lawyers agree with the judge's decision to use his discretion about what words are and are not allowed in their courtrooms.
“They shouldn’t be able to use the word ‘rape’ as if it is a fact that has been established,” said Jack King, director of public affairs and communications for the National Association of Criminal Defense Lawyers. “These are loaded words.”
Others, such as Joshua Marquis, an Oregon prosecutor and a vice president of the National District Attorneys Association, says, "To force a victim to say, ‘when the defendant and I had sexual intercourse’ is just absurd."
Marquis also states that "It’s a topic that’s coming up more and more. You’re moving away from what a criminal trial is really about.”
.
