Woot!

Now that there is a lawsuit, does the judge have to recuse himself from the next retrial? That would be so amazing. Perhaps reason will prevail.

I'm so glad she's sueing. What a jackass judge. Looks like he's the one who caused the mistrials. I wonder if we shouldn't have a judge-selection process as well as jury-selection process...

Tory Bowen is one bad-ass woman. I am so impressed with her fortitude and strength and the way she is not letting all this bullshit beat her down. I wish there was some way to send her a message of support. You go girl! What an awesome person.

What gets me is how, in that original article on the banning, it was insinuated that the words and phrases were banned because it was up to "a jury to decide" whether the person had been sexually assaulted or raped. I'm pretty sure the jury's actual role is to decide if the accused is in fact the perpetrator of the crime, and in no way are they in charge of determining the person's actual experience. Good Lord in heaven.

brozzle - The jury must first decide if a crime has been commited. Only if they decide a crime has been commited do th

Fair enough, noname, but how on Earth can the jury decide if a crime has been committed if nobody is allowed to say what the crime is?

This whole situation has been horrifying. I'm glad the woman is fighting back. She has been a hero in this whole process.

sgzax - I totally agree. It makes no sense to me that the AV can't call it rape. Can't the jury decide if they agree with her wording?

The argument (not mine) is that the word "rape" describes conduct that is presumptively illegal, as opposed to "penetration" or some other literal description of the conduct alleged - which supposedly does not have legal significance.

A few (very few) judges have bought the argument that allowing the prosecutor to refer to the alleged illegal conduct as "rape" is unfairly prejudicial to the accused.

The problem is that the other ways to describe it (unlawful sexual contact, sexual assault, penetration) also have specific legal meanings - although they are supposedly not as "emotional" as the word "rape." The goal is to get the jury to decide the case based on the facts and not based on their abhorrance of rape.

Everyone can agree that rape is wrong. But in the courtroom setting, the state has to prove that the conduct alleged satisfies the legal definition of rape. The jury's decision must be based on the evidence and they jury's assessment of the credibility of the witnesses - NOT their emotions.

Now, as far as suing the trial judge, that won't get very far because the judge (1) is given discretion to make what are essentially evidentiary rulings, and (2) has governmental immunity - which exists to prevent every unsatisfied litigant from hauling the judge into court and preventing the already bogged down justice system from functioning.

So, the plaintiff would have to show that the judge's decision was "outrageous governmental conduct" or something similar. While the ruling is upsetting and rather absurd - I doubt that it would be considered SO FAR outside the realm of what is acceptable for a judge to do that it would meet the standard to impose civil liability on a government official. (MHO)

Despite the obvious wrongness of the judge's ruling (I'm glad to see the prosecutors move forward), a First Amendment lawsuit is nonsense, in that all sorts of speech (rightly or wrongly) are limited in a courtroom. Better a writ of mandamus or a complaint to the state's judicial conduct panel.

I have mixed feelings about this case.

On the first hand every word in court is used for a specific purpose all language carries weight and therefore I don't think that anything used as far as language in a prosecution or defense should be off limits.

Second regardless of how busy the legal system is everyone has the right to seek fairness with in the justice system and perhaps the charge against the judge isn't the strongest but it is getting all of us talking about it.

The linked article does not say what remedy the Plaintiff is seeking. If the relief sought is monetary damages, the judge is so clearly entitled to immunity that the filing of such a complaint itself may subject Ms. Bowen and/or her lawyer (if she has one) to sanctions.

If she is seeking injunctive relief, then the question of federal jurisdiction arises. Federal courts are quite reluctant to interfere with ongoing criminal prosecutions in state court, such that the doctrine of abstention may apply.

Some courts have held that language spoken in court during trial is not First Amendment protected. The Supreme Court has never ruled definitively on this question, although the Court in 1974 vacated the summary contempt conviction of a witness who, during cross-examination, referred to an assailant as "some chicken shit".

Whatever the judge thinks the word rape makes people feel, it still has a LEGAL definition that should allow for it's use in the court. According to the US Department of justice, rape is: Rape is defined as:

“Forced sexual intercourse including both psychological coercion as well as physical force. Forced sexual intercourse means vaginal, anal or oral penetration by the offender(s). This category also includes incidents where the penetration is from a foreign object such as a bottle. Includes attempted rapes, male as well as female victims and both heterosexual and homosexual rape. Attempted rape includes verbal threats of rape."

It is ridiculous that the prosecution not be allowed to use a legal term that describes (legally) what crime the defendent is being charged with. What words the defense uses is up to them, but denying the use of an accepted and clearly defined word is, indeed, bullshit.

Besides all of that, the American (and Western/British system before that) has a long tradition of sexism. A raped woman was damaged goods and although the punishment for raping a virgin was castration and blinding under English law the rapist could nullify the charge if they married their victim, thereby taking responsibility for her status as “damaged goods." (See "Rape and the Devalued Victim" by Giacopassi and Wilkinson.)

Ultimately I think this is just another example of a male dominated judicial system serving male interests. We may have moved beyond the absurd notion that rape was a crime against the father or husband of the raped woman (she was, after all, their property), but there's still a ways to go.

Lastly- if this judge had heard a case about a man being raped (be it by a woman or another man) would he have the same objection to the use of the word rape?

I wonder if this judge is consistent when dealing with other crimes.

If a "rape" cannot be called a "rape" during the trial because the perpetrator has not been found guilty, how else could this be applied?

"Murder?" We haven't proved murder yet. How about "Stabbed to death?" THAT would be inflammatory. According to this judge, the acceptable language would be "Mysteriously ran into the pointy end of the knife 27 times."

Fair is fair.

Anne Thropologist just said what I was about to. The word "murder" can be just as inflammatory as "rape".

If we were to ban all emotionally charged language from a trial, then how the hell could this woman even describe what happened to her? Talking about rape is an emotional thing. You can't ban emotion from a trial. No matter what you call it, rape, sexual assault, penetration, jurors are still going to know it's a "rape trial".

From what I here, "murder" is another word banned in court by some judges.

That should be "hear", not "here". Sorry.

He should be in jail. Period. What he did is so obviously a calculated, purposeful breach of her rights. He doesn't deserve his freedom much less his place on that bench.

i am glad she is fighting back...no matter how far it goes...it is going to attract attention...

i also heard/read somewhere that "murder" is banned in some courts...they use "wrongful death" or some jarbled gobbledygook like that...

I am glad she is taking action. As a student of the Law, I was absolutely stunned to hear about this case. A judge is supposed to prevent either side from using completely unfair inflammatory tactics, such as perhaps showing multiple huge poster-size photos of a victim's tortured dead body or something. But the word rape? Which is just the NAME of the very crime in question? Just unbelievable. No even semi reasonable person would make that decision. If there was a robbery trial, can you imagine the Judge banning the word "steal"? C'mon! Rape trials are often horrible enough (by means of emotional trauma and the difficulty of getting a conviction) without this crap. Although her lawsuit might not work out for the reasons stated in posts above, she should make a formal complaint with that state's judicial ethics/review board, go to the media, perhaps talk with a state senator/assembly member. This whole thing is so absurd I don't know whether to laugh or cry.

Glad to hear that Tory's going the take this clown to court. At least she's not just a number.

Tory wants the judge to do the right thing and let her call it what it is: rape. And if there are any supporters of the Nebraska nonsense judge, i will spell the crime out for you: r-a-p-e. It is not consensual sex, it is not casual sex and it is not violent sex. It is rape.

Obviously, the judge need some remedial courses on "Hooked on Phonics".

John in Nashville is exactly right. The doctrine of judicial immunity is going to result in this lawsuit being dismissed, possibly even before it's even answered. The idea that a judge would be held liable for an evidentiary ruling on first amendment grounds is completely ridiculous, no matter how bad you think that ruling is. And there's about zero percent likelihood of the federal court getting involved in an ongoing state criminal case.

It has to be that this lawsuit is just a publicity stunt. But she'd be much better off trying to lobby the Nebraska Bar Association to try to change the rules of evidence that filing frivolous lawsuits. She's losing the persuasive power she might have had.

Robbery could become "I gave him the contents of my purse as a charitable donation"! God, we can have so much fun with this game!

Update - The federal judge has ordered Tory Bowen to show why her complaint is not frivolous. There's a serious implication that he might impose sanctions on her attorney, Wendy Murphy. This was a really dumb case to file. I feel sorry for Tory -- it seems like she might have been taken advantage of by an overzealous lawyer.