It's a familiar story. Boy meets girl in a bar. Boy and girl drink alcohol. Boy and girl retreat to a more secluded place, maybe his apartment. The next morning, there are differing interpretations of what happened next.
In the Nebraska case of Tory Bowen and Pamir Safi, there was a police report, followed by charges of rape and a trial. Make that two trials. The first resulted in a hung jury. The second ended in July when the judge declared a mistrial, arguing that pre-trial publicity rallied by the accuser had botched the jury selection. Another trial may be in the works, but arriving at the "truth" - or at least the resolution of a conviction or acquittal - is proving much more difficult than it should be.
Ms. Bowen's version is that she awoke in the morning, naked, with Mr. Safi on top of her, having sex. She told him to stop. He did. Because her clothes from the night before were caked with vomit, he also gave her something to wear. And he gave her a lift home.
Is this rape? Oh wait, we're not allowed to use that term. See, in the first trial, the judge, answering a motion made by the defense, forbade Ms. Bowen to use words in court such as "rape," "sexual assault" and "sexual assault kit" (used at the hospital to collect evidence) - even though Mr. Safi was charged with rape. She also couldn't refer to herself as a "victim" or the accused as an "assailant."
Ms. Bowen was basically left to describe sex, an act to which she says she did not consent. Which, by the legal standard used in many states, is where sex switches to rape.
Would the judge have gone to such extremes to control the language jurors would hear had the circumstances been closer to the more common perceptions of rape? What if there was parking lot surveillance tape of Mr. Safi dragging Ms. Bowen to a waiting car? Or if she had been slashed with a knife as she fought him off? Would these things have made the judge more willing to let Ms. Bowen use the words she saw fit to describe events? The jury would still have to do its job: weigh evidence against the presumption of innocence, and then decide. Other information was allowed. Two women testified that Mr. Safi, now 33, had sexually assaulted them, but neither incident resulted in a conviction.
Seems to me it is the judge, not Ms. Bowen, who is out of order. In declaring a mistrial, the judge argued that Ms. Bowen had made a public issue of the language ban - she joined protesters outside the courthouse - which he interpreted as an attempt to "intimidate" the court and "interfere" with the selection of a fair and impartial jury.
No, she just wanted her say. And the judge went too far in taking that right away from her. The judge's actions are important because this case illustrates an all-too-familiar pattern - especially on college campuses - when the sexes meet, drink and get frisky, with accusations to follow. Ms. Bowen was a college senior that night in 2004, out celebrating Halloween with her sorority sisters.
Nobody should have to give up the right to charge, or deny, rape later just because they were exercising poor judgment in the events that led up to an alleged assault. And we should not presume that when there is no strong-arm violence, there is no rape.
Not that long ago - less than two decades - some states retained laws that said a husband could never be charged with raping his wife. Those laws may have changed, but the mindset remains: Once you leave the bar with him, you are saying "yes."
Almost two-thirds of rapes are committed by people known to the victim. The term "date rape" has become part of the vernacular, but the law has been slow to grasp the problem.
Unless this case is retried, justice will have been derailed by a judge's quibbles over language. In which case Ms. Bowen could fairly complain she has been legally assaulted.
Mary Sanchez is a columnist for The Kansas City Star. Her e-mail is email@example.com.