NE- Court won't consider Neb. `rape' testimony issue

10-21-2008 Nebraska:

OMAHA, Neb. (AP) -- The U.S. Supreme Court has refused to hear an appeal involving a case in which a Nebraska judge banned anyone from saying "rape" in a sexual assault trial.

Lawyers for Tory Bowen had argued that Lancaster County District Judge Jeffre Cheuvront violated their client's constitutional rights by barring her from using such words as "rape kit" and "victim" during her testimony in the trial. The judge said he banned the language because was concerned about the accused's right to a fair trial.

While restricting Bowen's testimony, Cheuvront allowed attorneys for Pamir Safi to use such words as "sex" and "intercourse" to describe the encounter between Safi and Bowen.

Bowen says Safi sexually assaulted her in October 2004 while she was too intoxicated to give consent. Safi maintains the sex was consensual.

The Associated Press usually does not identify accusers in sexual assault cases, but Bowen has allowed her name to be used publicly because of the issue over the judge's language restrictions.

Bowen attorney Wendy Murphy said in an e-mail Monday that she was disappointed but not surprised by the high court's decision.

"Tory Bowen and this case will forever be known as the beginning of reform on this important issue, because we laid the groundwork for the inevitable day when judges will stop making such ridiculous rulings," Murphy said.

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. 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 case was listed Monday among those the Supreme Court declined to hear. Prosecutors previously said they decided not to pursue a third trial. ..News Source.. by JEAN ORTIZ