‘Rape’ is scrubbed out of rape trials

Rape is a vile and despicable crime. Over the past 30 years crime victim groups have made enormous strides in creating awareness about sexual assault and rape, as well as advocating for more thorough investigations and a deeper understanding of the trauma endured by victims of sex crimes.

The number of forcible rapes reported to police fell in 2007. According to the FBI Uniform Crime Report, rape reports fell by 4.3 percent, substantially more than other violent crime. The Rape, Abuse & Incest Network reports that sexual assaults have decreased by two-thirds since 1993. The effort to take on rape has had an impact on reducing rape. However, there may be other factors at work that have had a chilling effect on reporting rape and sexual assault.

A dramatic decrease in reported forcible rapes would seem to fly in the face of the flurry of laws that have been enacted to make it easier to pursue charges in cases of sexual assault. All 50 states have rape shield laws which protect victims of sexual assault from being examined regarding past intimate partners.

A majority of states have expanded the statute of limitations for sex offenses, the time between when an offense has occurred and the last possible day charges can be filed. Sex crimes against children can be prosecuted decades after the actual offense. Punishment of sex offenders who prey on children has become significantly more punitive. Sex offender registrations, residency restrictions, lifetime civil commitments, have all made it clear that society has little tolerance for sex offenders.

While the public seems to have little sympathy for rapists and child molesters it doesn’t appear that some courts share the same sentiment. The Kobe Bryant rape case and the derogation of Colorado’s rape shield law, resulting in an aggressive attack on the victim, have undoubtedly made some victims reluctant to come forward.

Restrictions on victims

A more troubling trend among trial judges is the imposition of restrictions on a rape victim’s ability to express herself during trial. Nearly everyone would agree that there is a significant and profound difference between rape and sexual intercourse. Some trial judges have barred rape victims from using the words “rape,” “sexual assault” and even “victim” at trial. A Nebraska judge will soon preside over the retrial of a man accused of rape. The prosecution and defense will be left with one word “sex” to describe forcible rape or consensual intercourse — a decided advantage for the defense.

Judges in several other states have recently made similar restrictions in sexual assault trials. The “language scrubbing” that is occurring in courthouses across the country stems from an overly broad interpretation of the rules of evidence and disregard for the plight of crime victims.

The absurdity of barring “rape” from a rape trial derives from general rules of evidence that provide otherwise relevant evidence can be excluded if its probative value is substantially outweighed by the risk of unfair prejudice to a party. Rape is defined as “sexual intercourse carried out forcibly or under threat of injury against the will usually of a female.” What is prejudicial about using precise language? Would it be prejudicial to say that a guy with four bullet wounds to his chest from an AK-47 was “murdered”? Just as there is a difference between dying and being murdered there is a difference between engaging in sexual activity and being raped. Sexual intercourse is an intimate act, an expression of love. Sure sex has become more casual and perhaps less an expression of commitment and companionship, but it remains a consensual act.

Rape is a violent, intrusive act. The word rape and the act itself connote deep depravity. Language is powerful and in the case of sex and rape there is a clear demarcation between intimacy and the horror of violence.

The probative value of using the most precise language to describe an alleged crime far outweighs the prejudicial effect on the accused. During trials judges often admonish jurors not to “check” their common sense at the door. That is good advice for a judge to heed.

X Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly.