Seriously, brava Bowen. How can a court of law not acknowledge the legal difference between sex and rape? What was the logic behind this in the first place?

It seems like things are especially shitty this week.

FWIW, the federal appeals court didn't address whether or not the trial judge acted wrongly. Rather, it dismissed the appeal on the grounds that (1) when Bowen sued the judge in federal court, he was never properly "served" with the suit, and thus the federal courts lacked jurisdiction, and (2) based of the mistrial in the criminal case, Bowen's challenge to the judge's actions was moot. Unfortunately, I can see nothing to quarrel with here legally, and I suspect the federal courts would have had to dismiss the suit under the doctrine of judicial immunity anyway.

Still, it's immensely frustrating that Bowen wasn't able to obtain vindication here.

The silver lining is that the court said nothing to suggest that what the state court judge did was okay; there was simply no way to challenge it in this case in light of the mistrial. If this happens in another case, this decision does nothing to hinder legal challenges to similar orders in rape cases.

Interested reader's can see the actual order (it's quite short) from the Eighth Circuit Court of Appeals at this link.

Interested readers can see the decision itself here (it's quite short).

I've always thought that rape is a proper subset of sex, in the same way that murder and manslaughter are proper subsets of homicide. I also thought that witnesses generally didn't say things like murder and robbery, but could only report the facts as they saw and heard them.

Like dykelawyer says, and I probably unpopularly said on the original thread when the federal lawsuit was brought, you're not going to get places in a free speech action against a judge. The title of the post is misleading, because the federal appeals court does not rule on exceptions made at a state trial court level. These are two different issues before the two different courts. A complaint to the state judicial commission would have gone a lot further.

Also, the first link ("this") doesn't go anywhere; here's the story.

"Dahlia Lithwick at Slate had this to say when news of the case first came out: "The fact that judges are not rushing to ban similarly conclusory legal language from trial testimony—presumably one can still say murder or embezzlement on the stand"

Dahlia Lithwick presumes too much.

hey where's our Friday Feminist Fuck You? this day is sooo looong!

hey where's our Friday Feminist Fuck You? this day is sooo looong!

There is a big difference between a witness saying "the defendant shot the victim in the head" and "the defendant murdered the victim", and requiring a witness to say "we had sex" (or some variant thereof) rather than "he raped me".

The latter case would be closer to requiring someone who's been burgled to say "I shared my home with the defendant", rather than "I found the defendant burgling me". And no court, to my knowledge, has ever required the use of language that implies consent when the witness' entire point is that no consent was given.

would intercourse be a word to describe what is normally described as sex or rape, without implying consent or lack of consent?

i will gladly slap my friday feminist fuck you to jeffre cheuvront.

oh, how will i ever get out of nebraska?

Coast to Coast- I think intercourse implies consent as much as "sex"...the point is (I think) that the victim-witness and prosecutor have the right to use the name of the crime for which the defendant is ON TRIAL. Unless you're going to start calling acts of theft "borrowing" in robbery trials, there is no reason why the word rape should be banned from rape trials.

Absurd. That's tantamount to banning the words "kill", "forensic evidence", and "murder" in a murder trial.

At first, I wasn't quite sure how I'd come down on this (it isn't exactly the type of fact pattern I'm expecting to see on my Evidence final).

On the one hand, Elise makes a good point that "we had sex" does imply consent, when that's what the witness is claiming was lacking. On the other hand, I do think the word "rape" is more inflammatory than the word "robbery;" how can it not be, when rape is a far worse crime?

Theoretically, it seems like the ideal solution would be to require testimony to describe what happened (i.e., "I was penetrated against my will," etc.), but that seems to open the witness up to an unfair expectation to bluntly talk about a traumatic experience, when most people have difficulty talking about things of a sexual nature in the best of circumstances, let alone after they've been raped.

In writing this, I think it's clearer to me that the prejudice to the defendant is outweighed by the interests of allowing the witness to tell their story in the words they find most appropriate, and in not confusing the jury by referring to both forcible sexual conduct and consensual sexual conduct with the same words.

This whole issue is predicated on the mythical assumption that a woman is likely to be lying about what happened, that the report was false. Not letting a victim describe what happened in accurate terms is another victimization. It's completely fucked.

AnonymousCoward: Theoretically, it seems like the ideal solution would be to require testimony to describe what happened (i.e., "I was penetrated against my will," etc.), but that seems to open the witness up to an unfair expectation to bluntly talk about a traumatic experience...

I don't think this is an unfair expectation at all. This is a criminal trial we're talking about, and when someone's freedom is on the line, I think witnesses had damn well better be able to describe what happened in plain words and in detail.

Remember that the whole trial system, with the judges, jurors, defense lawyers, prosecutors, forensic scientists, and all that sort of thing, exists just as much for the exoneration of innocents as for the conviction of the guilty. Corey said, "This whole issue is predicated on the mythical assumption that... the report was false." This is as it should be. The burden of proof must always lie with the accuser, and with the state. That is what we call "proof beyond a reasonable doubt," and if I were a juror, I'd sure have some reasonable doubts about a crime for which the alleged victim cannot even produce a coherent description.

"if I were a juror, I'd sure have some reasonable doubts about a crime for which the alleged victim cannot even produce a coherent description."

You, dear Alice, sound like you have never worked with victims of trauma. Because, having difficulty remembering and describing something traumatic in a highly coherent matter, is commonly something victims of traumatic events have difficulty with.

The fact is, not that guilt should always be presumed, but that we do have a system that makes it very hard to prove a sex crime.

Also Alice, FYI, many victims of rape choose to testify in court not because they are expecting a verdict of "guilty" (b/c once again, that's hard to get no matter what the facts are), but merely because they feel better reporting their crime, getting to have their day in court and telling their story. Victims of crimes are generally allowed to testify however they want in this country, and in cases like these part of the reason for testifying for many people is just psychological benefit anyway...

Ninapendamaishi: Victims of crimes are generally allowed to testify however they want in this country, and in cases like these part of the reason for testifying for many people is just psychological benefit anyway...

Hmm, that is interesting. But now I can see why there would be possible conflict between witnesses and judges. If the witness is doing it for the reasons you describe, while the judge is trying to run a trial that will get a conviction if the defendant is indeed guilty, they're going to disagree on how proceedings should be handled.

While a court can't allow a fact witness to state a legal conclusion, and while "rape" IS a legal term, the word "rape" has long been commonly used by the general public in a generic sense. The court will most certainly give a jury instruction definining the legal requirements for rape at the conclusion of the trial, and the jury is certainly going to understand that the evidence must satisfy each of the elements of that legal definition. Therefore, I can't seem any harm in allowing the witness the use the term "rape."

i agree with tim.
that's what jury instructions are for.

"While a court can't allow a fact witness to state a legal conclusion, and while "rape" IS a legal term..."

"Rape" is not a legal term in the state in question. (This was stated at Feministing previously, when the original trial was discussed.)

Many states use the term "sexual assault" as the legal term for "rape," exactly because of the potential confusion for jurors.

The fact that Nebraska is one of these states is what makes the Nebraska judge's ban of that particular word so rage inducing, imo.

Anyone who agrees with the judge's ruling should think about this:

YES, saying the word RAPE may prejudice the jury.

But the victim WILL be asked to elaborate, and if she says "he held me down and tried to shove his penis in my vagina" do you think that won't prejudice the jury?

Or do you think the woman doesn't know what rape is, as it's a legal term, & only the LAW can tell her whether or not she was raped?

Alice: I've always thought that rape is a proper subset of sex, in the same way that murder and manslaughter are proper subsets of homicide.

WHAT. THE. FUCK.

I really hope you didn't mean what that sounds like.

Manslaughter and murder are both forms of homicide, but rape is much, much more than a form of sex.

Sex = Neutral
Rape = Torture

The thing to keep in mind when talking about what will or will not "prejudice the jury" (or other trier of fact) is that being prejudicial alone is not grounds for inadmissibility. All relevant evidence is to some extent prejudicial in that it tends to influence the trier of fact's view of the case. The question is whether something is UNDULY prejudicial, i.e., whether its prejudicial effect "substantially outweighs" any probative value it might have.

In this case, I think it's hard to claim that the prejudicial effect of letting the victim - who the jury knows has a particular opinion of the events ni the first place - say that she was "raped" substantially outweighs the probative value of letting her say that, rather than "we had sex" or some other absurdity.

It would be rather a different thing if it were a third-party witness saying "I saw him raping her", since the third-party witness will not be assumed to be an interested party, and the jury will probably give more weight to her testimony than that of the victim or the defendant.

With the victim, the jury would be more surprised to hear her say something OTHER than that she was raped. Juries evaluate much more complex fact issues than this every day.

Alice: I've always thought that rape is a proper subset of sex, in the same way that murder and manslaughter are proper subsets of homicide.

Alice, I think of rape more as a subset of violence against women. It's sexualized violence -- rather than violent sexuality.

Even linguistically, "rape" and "sex" are not compatible.

To use the word "sex" as a verb, it has to take the form "to have sex WITH someone". There is no "to sex someone" that means the same thing. The same is true of "intercourse". "To intercourse someone" is gibberish. The "with" is required for its use in a verb phrase to be grammatical.

If we were to try the parallel construction with "to rape", however, we would get a completely different result:

"A raped with B" means that A and B, together, raped some unspecified set of persons {C}. Rape takes a simple, direct, object, both in linguistics and in life. There is no "with" required for the verb phrase that might imply consent or participation.

"'Alice: I've always thought that rape is a proper subset of sex, in the same way that murder and manslaughter are proper subsets of homicide.'

"WHAT. THE. FUCK.

"I really hope you didn't mean what that sounds like.

"Manslaughter and murder are both forms of homicide, but rape is much, much more than a form of sex.

"Sex = Neutral
Rape = Torture"

I thought part of Alice's point is that sex isn't just neutral - some sex can be wonderful, some sex can be torture, etc. For one example, having sex with someone against her or his will is torturing her or him.

"Alice, I think of rape more as a subset of violence against women. It's sexualized violence -- rather than violent sexuality."

It's also a subset of violence against men and a subset of violence against children.

"Even linguistically, 'rape' and 'sex' are not compatible.

"To use the word 'sex' as a verb..."

Great points about the verbs. What about when the word "rape" is used as a noun?

Meanwhile, I'm curious - *if* rape is no form of sex at all, then if someone who's a virgin today rapes someone tomorrow would the rapist still be a virgin afterwards?

Well, this is MY fuck you for the week.

Is she going to appeal to yet a higher court? If I were here, I'd take it all the way up to the US Supreme Ct.

If that fails, she should at least say "forced intercourse" or "non-consensual sex" so it isn't mistaken for actual consensual sex.

Rape is about violence and control, not ever to be confused with sex or intercourse.

This story also makes me want to tear my hair out.

I wonder if the judge would have accepted, instead of rape... my vagina was violently stabbed repeatedly by his erect penis.

Or my body was invaded against my will by his prick.

Jeebus!

Bowen has courage and I admire her grit. Good for her.

“Manslaughter and murder are both forms of homicide, but rape is much, much more than a form of sex.� – spaceninjamonkey

I always thought rape was nonconsensual sex. If that is correct, then yes, it is a form of sex (with nonconsensual as the qualifying term).

“In this case, I think it's hard to claim that the prejudicial effect of letting the victim - who the jury knows has a particular opinion of the events ni the first place - say that she was "raped" substantially outweighs the probative value of letting her say that, rather than "we had sex" or some other absurdity.
It would be rather a different thing if it were a third-party witness saying "I saw him raping her", since the third-party witness will not be assumed to be an interested party, and the jury will probably give more weight to her testimony than that of the victim or the defendant.
With the victim, the jury would be more surprised to hear her say something OTHER than that she was raped. Juries evaluate much more complex fact issues than this every day.� – Elise

Very well said. I think the victim vs. third party distinction is very important. Unfortunately, the Nebraska court did not agree.

The burden of proof must always lie with the accuser, and with the state.

The victim is not on trial here. She is not required to "prove" that she was raped. The rape occurred. That should be the default assumption.

The "burden of proof" refers to proving that a particular defendant is the one who committed the crime.

How many people are asked, "Your car was stolen? Well, what kind of car was it? Was it a fancy car? Expensive? Have you owned cars like this before? Did you ever let anyone else drive this car? Prove that you parked it there, and now it's gone." when they report auto theft?

Replace the idea of rape being conflated with sex in the above scenario, and I think it's a pretty clear picture of what rape victims are subjected to when they report the crime.

Never mind having to "prove" in a court of law that yes, you actually were raped.

For crying out loud.

For the reasons I stated above, it would be futile to appeal this decision.

However, since the state apparently plans to try the accused a third time, Bowen may still be able to challenge the language ban if it is used again. If she sues once the prosecution is restarted and the federal court decides before the trial is over, I see no barrier to asserting a First Amendment claim against the judge or the trial court in federal court, so long as she seeks only a declaration that the ban was unconstitutional. It may also be possible for the prosecutor to seek an interlocutory appeal in state court on the issue, but I imagine they would have to depend on state evidence rules, since it is Ms. Bowen's speech rights that are implicated.

My thought.

I'm going to assume you people who are conflating rape with sex have never had someone hold you down and try and stick something in your bodily orifices against your will, but I'll try and communicate how I feel THAT is not a subset of sex.

When you say two people "had sex" linguistically speaking it implies a consensual act. You can't argue with that, although you could try to qualify it, because it's just the way the common understanding of our language works. Poll people, and you will find that almost all people on the street do interpret that phrase in that manner.

However, rape is something that is done to someone in order to gain power and pleasure from someone else's suffering. Rapists are immune to the suffering of their victims. In order to rape someone, you have to lower them to the level of a cow that you slaughter in order to eat a hamburger. Simply a means to an end. Sometimes rapists even take pleasure in suffering.

Mina: Meanwhile, I'm curious - *if* rape is no form of sex at all, then if someone who's a virgin today rapes someone tomorrow would the rapist still be a virgin afterwards?

The whole idea of virginity is a CROCK of shit. Penetration? Oral sex? What counts? Virginity is for abstinence only educators who want to talk about women's "purity." I come from a culture and family where so much as kissing a guy was tantamount to having sex with him.

You KNOW better than to bring up virginity.

spaceninjamonkey: Manslaughter and murder are both forms of homicide, but rape is much, much more than a form of sex.

If you accept that classification of murder, then I don't see why you have trouble with that classification of rape. Murder is also much, much more than a form of homicide. Homicide, all by itself, is just as neutral as sex. So, yes, I'd say that rape is to sex what murder is to homicide.

Oh and what if the thing they're sticking in your vagina isn't a penis?

What if it's a broomstick? Or a knife?

Is that still a subset of sex?

I know you guys aren't trying to be insensitive, so I apologize for using loaded words, but at the moment, I can't see any other way of communicating my thoughts and feelings on the topic of rape.

I think that it might be more accurate to say, rather than that rape is a "form of sex", that it is a form of violence that includes some sexual act within it.

"The victim is not on trial here. She is not required to "prove" that she was raped. The rape occurred. That should be the default assumption."

What the fuck? The default assumption, of course, is that the defendant is innocent until proven beyond a reasonable doubt guilty of all elements of the crime, for sexual assault and every other crime.

By the way, the first link doesn't work. Just FYI.

"When you say two people 'had sex' linguistically speaking it implies a consensual act."

That's totally true about the phrase "they had sex." At the same time, the phrase "he had sex with her" also exists in English and by itself it just doesn't include enough info to imply consent or rape.

"Virginity is for abstinence only educators who want to talk about women's "purity.'"

...and us telling their students that rape isn't sex could make raping a girl sound like a fantastic loophole to some of the boys. Do we really want kids to conclude "you mean there *is* a way to get my cock in her pussy now and save sex for later at the same time?"?

Meanwhile, it's already hard for date rape prevention efforts to teach people that rape isn't always forced at gunpoint. Which message is more likely to get across to the wider public and which is little more than preaching to the converted?

(a) "sex with someone who's passed out drunk is impossible since she or he can't consent so anything you do to her that would be sex if she or he consented would be rape in this case instead"

(b) "sex with someone who's passed out drunk is rape too"

?

"I come from a culture and family where so much as kissing a guy was tantamount to having sex with him."

I come from a culture and a family too, where P-I-V contact is never tantamount to non-sex even when it's not 100% healthy for all involved.

"'spaceninjamonkey: Manslaughter and murder are both forms of homicide, but rape is much, much more than a form of sex.'

"If you accept that classification of murder, then I don't see why you have trouble with that classification of rape."

You know how some idiots out there claim *all* sex is bad? I got the impression that some other people out there lash back against these idiots by claiming that *all* sex is good. No wonder they don't want to call anything evil, including rape, a variety of sex. I wonder how many of the people who think "it's not sex if it's rape" also think "it's not sex if someone gets HIV from it"...

What the fuck? The default assumption, of course, is that the defendant is innocent until proven beyond a reasonable doubt guilty of all elements of the crime, for sexual assault and every other crime.

Read the rest of my comment, Bozo. I SAID the victim is not required to "prove" a crime was committed. The prosecuting attorney is required to PROVE the DEFENDANT is the ONE WHO COMMITTED THE CRIME.

If I am raped, I am raped. I don't have to "prove" that. Except in our fucked up society where, uh, yeah I do.

What the government has to PROVE is that the person I said raped me is indeed guilty beyond a reasonable doubt.

What the fuck right back atcha, and try reading.

""The victim is not on trial here. She is not required to "prove" that she was raped. The rape occurred. That should be the default assumption."

What the fuck? The default assumption, of course, is that the defendant is innocent until proven beyond a reasonable doubt guilty of all elements of the crime, for sexual assault and every other crime. "

It says right below the part you quoted "The "burden of proof" refers to proving that a particular defendant is the one who committed the crime."

The default assumption _is_ that the defendant is innocent until proven guilty. What they are saying is they don't have to prove she was raped, they have to prove he raped her.

That's not always true. Sometimes it is taken for granted that the involved parties did have sex, as when the defendant admits as much, and so the matter before the court is to decide whether or not what happened constitutes rape.

Mina: ...and us telling their students that rape isn't sex could make raping a girl sound like a fantastic loophole to some of the boys. Do we really want kids to conclude "you mean there *is* a way to get my cock in her pussy now and save sex for later at the same time?"?

Are you insane? I did NOT say rape did not involve sex. All I said was that it was not a SUBSET of sex.

Rape is a violent crime that happens to use sex to exacerbate the damage that is done to the victim.

And I am not one of those people that thinks ALL sex is good OR that ALL sex is bad. Sex as a word is morally neutral in a way that homicide is NOT.

Even when someone is killed in self defense, there is always a tinge of horror at the fact that a human being has just been killed.

And if you're saying that exposing people to the reality of violent rapes makes date rape more acceptable, then I think we need to work on changing society's attitude towards rape rather than diminishing the horror and the truth of that particular rape victim's experience.

Date rape victims are ALSO victims of rapists who do not have empathy for their suffering. Just because they didn't have knife thrust at them doesn't mean they're not victims and I'm kind of horrified that you think I was saying that.

You never answered my question by the way...is it sex if someone uses a knife instead of a penis to penetrate a vagina? Because technically that's rape, and if it's not sex, then rape is not a subset of sex.

Do you think shit like that doesn't happen?

Or is it so rare that it doesn't matter?

"Read the rest of my comment, Bozo. I SAID the victim is not required to "prove" a crime was committed. The prosecuting attorney is required to PROVE the DEFENDANT is the ONE WHO COMMITTED THE CRIME."

Exactly!

"That's not always true. Sometimes it is taken for granted that the involved parties did have sex, as when the defendant admits as much, and so the matter before the court is to decide whether or not what happened constitutes rape."

It's always true, and sometimes one of the two things that would need to be proven (that there was a crime, and that the defendant did it) is already a given before the trial begins. In the example you give, that there was a crime is what's being questioned. In some other cases, that's obvious and what's beging questioned is whodunit.

"'Mina: ...and us telling their students that rape isn't sex could make raping a girl sound like a fantastic loophole to some of the boys. Do we really want kids to conclude 'you mean there *is* a way to get my cock in her pussy now and save sex for later at the same time?'?

"Are you insane? I did NOT say rape did not involve sex. All I said was that it was not a SUBSET of sex."

I'm not insane, I'm just remembering set theory.

Those who claim that rape is not sex sure seem to be claiming that the set of rapes aren't a subset of the set of sex acts.

"And if you're saying that exposing people to the reality of violent rapes makes date rape more acceptable,"

I'm acknowledging that many people out there think right now that the reality of violent rape makes date rape more acceptable, and I was considering how to teach *them* that date rape is rape.

Given that *they* currently think it's sex, telling them "don't have sex with someone without her or his consent" will probably work faster and *prevent more rapes* than first trying to teach them a different definition of "sex" which includes consent and then telling them that it's rape because it isn't sex because it isn't consensual.

One who wants to get a message across to an audience needs to speak the audience's language, consider the audience's interests, etc. Not just assume "the audience ought to speak this other language instead, have these other interests instead, etc.".

"You never answered my question by the way...is it sex if someone uses a knife instead of a penis to penetrate a vagina? Because technically that's rape, and if it's not sex, then rape is not a subset of sex.

"Do you think shit like that doesn't happen?

"Or is it so rare that it doesn't matter?"

Shit like that does happen, it does matter, it's very painful, it's sometimes *lethal*, and who counts those as rape (instead opf another kind of sexual assault) more than they count using a knife to penetrate the victim's mouth, anus, stomach, or eye as rape?

Actually, in the California Penal Code, it's called rape by a foreign object, so yes, under the law puncturing someone in the eye is different from puncturing them in the vagina.

So yes, that would be rape. With a knife, a broom, a pipe, etc.

(ctrl+f+"rape")

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=44808629685+0+0+0&WAISaction=retrieve

which references

(ctrl+f+"foreign object")

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=44791329328+1+0+0&WAISaction=retrieve

As to the former trial where they weren't allowed to use the word "rape" or "raped", why couldn't "assult" or "sexual assult" have been used?

tinfoil hattie – Many rape trials hinge on whether already admitted sex was consensual or not. Who was there is not the question. The question is whether what happened was a crime.

In the lovely state of Florida (where most of our kids are taught drinking bleach eliminates pregnancy apparently), "sexual assault" is the term used in most Rape Trials.

As a survivor, I remember using the medical terms during the trial. "He forced his penis inside my vagina." I remember using the word "intercourse." I don't remember using the word "rape" at all. Even now, five years after my rapist was convicted I still have trouble using the word "rape" as in "I was raped." I usually say, "I was assaulted," which can mean I was punched or hit, and doesn't imply anything sexual. I have worked hard to be able to say, "I was raped."

I think it's sad and leads to much more healing to deny a victim the use of words describing what happened to her. It would make me feel like what happened to me wasn't as bad as it was. Society wants to euphemise "rape" by calling it "sexual assault/battery." There is nothing pretty about rape and there is no need to euphemise it.

Kudos to Bowen for not backing down even when it might have been the easier route.

In the lovely state of Florida (where most of our kids are taught drinking bleach eliminates pregnancy apparently), "sexual assault" is the term used in most Rape Trials.

As a survivor, I remember using the medical terms during the trial. "He forced his penis inside my vagina." I remember using the word "intercourse." I don't remember using the word "rape" at all. Even now, five years after my rapist was convicted I still have trouble using the word "rape" as in "I was raped." I usually say, "I was assaulted," which can mean I was punched or hit, and doesn't imply anything sexual. I have worked hard to be able to say, "I was raped."

I think it's sad and leads to much more healing to deny a victim the use of words describing what happened to her. It would make me feel like what happened to me wasn't as bad as it was. Society wants to euphemise "rape" by calling it "sexual assault/battery." There is nothing pretty about rape and there is no need to euphemise it.

Kudos to Bowen for not backing down even when it might have been the easier route.

In the lovely state of Florida (where most of our kids are taught drinking bleach eliminates pregnancy apparently), "sexual assault" is the term used in most Rape Trials.

As a survivor, I remember using the medical terms during the trial. "He forced his penis inside my vagina." I remember using the word "intercourse." I don't remember using the word "rape" at all. Even now, five years after my rapist was convicted I still have trouble using the word "rape" as in "I was raped." I usually say, "I was assaulted," which can mean I was punched or hit, and doesn't imply anything sexual. I have worked hard to be able to say, "I was raped."

I think it's sad and leads to much more healing to deny a victim the use of words describing what happened to her. It would make me feel like what happened to me wasn't as bad as it was. Society wants to euphemise "rape" by calling it "sexual assault/battery." There is nothing pretty about rape and there is no need to euphemise it.

Kudos to Bowen for not backing down even when it might have been the easier route.

Read the rest of my comment, Bozo. I SAID the victim is not required to "prove" a crime was committed. The prosecuting attorney is required to PROVE the DEFENDANT is the ONE WHO COMMITTED THE CRIME.

Um, no. A fundamental part of any criminal case is to prove that a crime occurred. There is no presumption of a crime being committed, that then needs to be pinned on the defendant. No proof of a crime == no trial; the judge tosses the case.