Saturday, June 14, 2014

Ain't No Bleach For That

Written by: Paulissa Kipp

Cleansing is generally considered beneficial: For example, juice cleansing, performing personal hygiene and housekeeping are ways to improve or maintain health. Cleansing and de-cluttering can be healing and restore peace to one's mind, body and spirit. Yet cleansing can also be a damaging thing: ethnic cleansing, political correctness and not calling a spade a spade when necessary can cause more damage than good.

Image courtesy of scottchan / 
A disturbing trend in cleansing is the sanitization of rape. As though a bit of Clorox and gentler words makes the act any less brutal. The concept of not using the word "rape" in an effort to protect perpetrators from "prejudicing" juries, spates of judges refusing to allow the words rape, sexual assault or rapist in favor of asking victims (not "alleged" victims) to use the term "sex" has the effect of trying to sanitize the dirty little secret. Sanitizing the ugly does not make the ugly disappear.

Case in point: Nebraska district judge, Jeffre Cheuvront, suddenly finds himself in a war of words with attorneys on both sides of a sexual assault trial. More worrisome, he appears to be at war with language itself, and his paradoxical answer is to ban it: Last fall, Cheuvront granted a motion by defense attorneys barring the use of the words rape, sexual assault, victim, assailant, and rape kit from the trial of Pamir Safi—accused of raping Tory Bowen in October 2004. Nebraska law offers judges broad discretion to ban evidence or language that present the danger of "unfair prejudice, confusion of the issues or misleading the jury." The legal rationale: "It's a legal conclusion for a witness to say, 'I was raped' or 'sexually assaulted.' … That's for a jury to decide." His concern was that the word rape so inflames jurors that they decide a case emotionally and not rationally. (Bowen v. Cheuvront, 2007 WL 2668905, *1 n.2, No. 4:07CV3221 (D. Neb. Sept. 10, 2007)). A mistrial was declared in Safi's first trial in November 2006 when the jury deadlocked. Bowen said afterward that the judge's ban had a negative effect on her testimony, causing her to pause to ensure her words didn't violate the order.

Cheuvront declared a second mistrial in July 2007 during jury selection, citing news coverage and public protests on Bowen's behalf. Bowen sued Cheuvront over the language ban, stating that the language ban invalidated the experience and her testimony. A federal judge dismissed the lawsuit, ruling that Bowen failed to prove that he should intervene. The 8th U.S. Circuit Court of Appeals upheld the dismissal, saying the federal court didn't have jurisdiction. The U.S. Supreme Court refused to hear the case and prosecutors declined to pursue a third trial against Safi, thus ensuring that Ms. Bowen's assailant walked free.

This rebranding of rape might appear to be a recent occurrence, but it actually dates back 15 years and originated with attorney Brett Sokolow. It was Sokolow who coined the term "non-consensual sex". In an Al Jazeera America article, Sokolow explained that he was working with college campuses regarding how to deal with rape on campus. He noticed a great deal of resistance from college administrators when the word rape was used. Sokolow, the CEO of the consulting and law firm the National Center for Higher Education Risk Management, decided colleges needed another term. As in most other types of violence, the language is loaded and colleges didn't want to label any student as a "rapist".

So Sokolow did what any enterprising attorney would do: he coined a new phrase. A phrase that meant rape but without vilifying the accused. "Non-consensual sex". This phrase has been embraced by college campuses and in some states, legislative bodies and judges have embraced the term as well. He estimates that 700 - 800 colleges have adopted the term.

Yet the very legal definition of rape is non-consensual sex. Does changing the term change the crime or merely make it more palatable and place more of the burden of proof on the victim? Victim's rights advocates argue that changing the terminology invalidates the effects of the crime on the victim. The term rape is powerful. It is also violent and creates a mental image that cannot be erased.

Colleges are not in the business of determining law, not even law schools. They are, however, in the business of educating minds and influencing critical thinking. That is what millions of students and parents pay to get. Likewise, courts and their proceedings and holdings also form public perception. The perception that rape by any other name is not rape only contributes to rape culture and stigma. It is time to stand up and call out each and every entity that refuses to call rape what it is: A violent use of power to subdue and terrorize another person. We can further bring about social change by having meaningful discussions about the realities of informed consent. Without consent and the ability to give said consent, it is a violation of the highest order and there ain't no bleach for that.

Written by: Paulissa Kipp
Country: United States
Twitter: @Paulissaisms
Facebook: 3rd Eye Phoenix with Paulissa Kipp

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