Supreme Court Declines to Hear Bowen Case


Last week, The United States Supreme Court acted in a case concerning women and language.  Bowen v. Cheuvront, 77 U.S. Law Week 3101 (Oct. 20, 2008). 

The case involved the alleged rape of Bethany Bowen.  The defendant, Pamir Safi, said Bowen had consented to sex, but she argued that she had been incapacitated by a date rape drug.  Before trial in Nebraska state court, Judge Jeffre Cheuvront ordered Bowen not to use the words "rape," "victim," "assailant," "sexual assault kit" and "sexual assault nurse examiner," on the ground that those terms were unduly prejudicial to the defendant and would undermine the presumption of his innocence.  Bowen violated that order, which led to two mistrials. Meanwhile, women demonstrators appeared with their mouths taped shut in sympathy with Bowen's cause. 


Bowen's lawyers then asked a federal court to rule that Cheuvront's order violated the U.S. Constitution.  Judge Richard Kopf of the District of Nebraska declined to issue that ruling, stating that there is no basis for such an instusion into a state proceeding.  He then dismissed the case on the ground that Bowen and her counsel had brought a frivolous suit in violation of Federal Rule of Civil Procedure 11.  Bowen v. Cheuvront, 516 F. Supp. 2d 1021 (D. Neb. 2007).  Bowen appealed, but by then the state prosecutor had decided to dismiss the underlying rape case.  The Eighth Circuit therefore determined that the federal case was moot and remanded it with directions to dismiss. Bowen v. Cheuvront, 521 F.3d 860 (8th Cir. 2008).


Bowen's lawyers appealed to the U.S. Supreme Court, which denied certiorari on October 20.  The denial of cert makes sense because the federal case does appear moot.  But the underlying issue remains troublesome.  How can the complaining witness in a rape trial tell her story if she cannot use the standard English words that describe her alleged assault?