Can we even call it a rape trial at this point?

I realized in replying to a comment on my last entry (the livejournal version, of course) that the story I alluded to briefly--about the judge who ruled that a rape victim couldn't use the words "rape" or "sexual assault" (not to mention "victim", which was already out) in her testimony--was something that probably warranted some further commentary with my linguist hat on. For background, here is a link to a news report of it, and here is the take at abyss2hope (which, as always, is pretty darn good).

What I was saying in the comment on my last post is that in some ways I have a lot of difficulty making effective arguments against this type of attitude, which is extremely common and pervasive, because it's partially usurping my own framework--that rape is a unique crime in a lot of ways and that it needs to be talked about separately from plain old assault. But they take that construction and use it to mean, therefore, that a rape accusation is the most horrifying charge that can be leveled against a man, akin to calling him Satan incarnate, ensuring that he was spend the rest of his life with a scarlet "R" emblazoned across his forehead, never able to work, marry, or find a good neighbourhood in which to live again. As usual, I have no intention of coming off unsympathetic towards those who are actually falsely accused (and I have complicated feelings surrounding the legal construct of paroled sex-offender registration), but my position is that a) obviously, this is immediately transferring the primary focus away from where it always belongs, which is on the victim, and the rhetoric they use to do it is very successful and b) the problems they're purportedly trying to counter are not actually entirely real. I don't really want to talk about the Duke case here, but it seems to me that what a lot of people could not recognize there was that the accused were never being universally vilified and that the bulk of the media and public opinion immediately leaped to their defense, talked about them as otherwise upstanding boys, and started rallying around them to preempt exactly this quase-mythical phenomenon. In the interests of not getting too far off-track, I'll leave that example at that.

This judge is so steeped in that framework that he's absolutely crippling any attempt to actually prosecute this case. One of the reasons I like Marcella's analysis at abyss2hope is that she immediately hits to the heart of the problem, in a way that, because of the way our society thinks, comes off as reductio ad absurdum but is actually pretty straightforward quid pro quo:

The words "sex" and "we" and "they" should also be barred from descriptors in any questioning or testimony regarding the alleged sex crime or events which preceded those alleged crimes since they all imply consent and would prejudice a jury against the alleged victim.

It's the "we" and "they" in this argument that I think makes it effective. It forces out into the open what "he said/she said" really means--"she" is depicting an agent/patient scenario, and "he" is depicting mutual agency. It exposes that every word, including each tiny little pronoun, is loaded with content, and bias, framing and "prejudicial" aspects cannot possibly be removed from the courtroom language. And no one ever expects that they should or can be in anything but a rape case--imagine a murder trial without the corresponding words. Keep in mind even the phrase "sexual assault kit" was banned--a legal method of collecting evidence that may be brought forward at trial as part of determining whether sexual assault occurred, and if so, the identity of the assailant. What this judge has done, therefore, is obviously exactly the opposite of stripping away potentially "prejudicial" language and in fact ensuring that only the "he said" framework is really being presented. In an adversarial legal system, in a case regarding a crime that is inevitably construed as "he said/she said", even when there is a plethora of other evidence, that sounds the death knell of the prosecution.

What really got me thinking about this today when I was writing that comment was mentioning the fact that the jury was not informed of the judge's ruling limiting the victim's language choices in her testimony. In combination with the inability to use the term "sexual assault kit", that made the cynic in me come out and wonder if they were even allowed to know what sort of crime they were apparently ruling on. But it got me thinking about how I would have perceived the testimony had I been on the jury. A couple of things:

1. Obviously, I have no way of knowing the specific content of her 13-hour testimony beyond what I've seen reported, and pretty much everything I've seen focuses on the same salient points that the linked news article does.
2. I will never be on a jury because my activism and experience working with victims will make any defense attorney toss me out immediately on the assumption that I am incapable of a reasonable legal judgment.
   

Were I nonetheless on this jury--or any jury--in addition to the content of the testimony presented, I would be paying very careful attention to any and all word choices. I wouldn't be able to avoid noticing the framing, knowing both that the witness testifying is likely revealing a great deal more about his or her attitudes and assumptions than he or she understands and that the lawyer pulling the razzle-dazzle 'em strings has coached the witness very specifically and with the intent to manipulate me and the other jurors in this manner, and presumably with the assumption that we won't notice (maybe that would also keep me off any jury). So it would not slip past me that the victim never used the words "rape", "assault", "victim", "assailant" or "attack", and if it did, I'm sure whatever exceptionally unnatural substitute was inserted in place of "sexual assault kit" would tweak my ear and make me think. Personally, I would likely suspect something extremely strange was going on with this testimony and infer judicial interference, but that's because of my background working in sexual assault cases and the number of reports of exactly this kind I've seen in the past (the fact that I would have been right, but also excluded from jury contention, because of that very point, is another to consider, if you ask me).

But what if it's somebody else on the jury who has some awareness of the concepts of framing and rhetoric, but lacks my experience dealing with sexual violence? That juror will be on the lookout for the word choices that are designed to manipulate, to hide and reveal as the lawyer/puppetmaster intends, and would logically assume that the prosecutor is the puppetmaster of the witnesses for the prosecution, including the victim. I could write 12 Angry Men with that juror going back into the room and being the Henry Fonda who dismantles every aspect of the prosecution's case based on, among other things, the implication that the victim is hiding something because even she can't bring herself to call it rape.

Now, with that person, and with any standard juror who's just listening to the "facts" and not actually noticing the words, there are obviously a whole bunch of ways that could end up falling out. The fact that the trial in question ended with a hung jury (7-5, with the majority going for "guilty") belies that reality and undermines some of my stormier rhetoric here. Somehow that linguistic Henry Fonda image is eating away at me, however (in black and white, of course), and I can't help but wonder of the impact that it would have had in the jury room if someone on the jury had noticed that aspect of her testimony but not the man behind the curtain. I don't know if the results of the new trial will end up widely reported, but I'd be very interested to see how it turns out, both because this case has sparked my righteous anger (and damn, this woman clearly needs this to be over so that she can figure out how to heal, not to mention identify everything she's going to need to heal from, including all of the aspects of this trial and any yet to come) and for academic reasons--will the judge alter his ruling in any way? If the jury selection attempts to exclude anyone who's read about that aspect of the previous case, will it be difficult to find an "untainted" jury in that community? What will be the result of that--ie. in what ways is the jury suddenly being demographically constructed entirely of people who don't read the news, or whatever, and do you really want me to get started on this whole concept of "unbiased" jury member, to which I've now alluded several times? If they don't attempt to impose that restriction on jury members, but the judge does continue his ruling--either adding an acknowledgment of it to the jury or assuming that it may be conveyed to the rest of the jury by any one member who was aware of it from the previous case--how will the jury's awareness of the order affect deliberations?

Oh, and for good measure, I'll just make sure it's known that the judge in question is less-than-cordially invited to bite me.