The Word 'Rape'

(Source: You Weren't Mugged, You Just Gave Away Your Belongings)

In 2007, a Nebraska judge, Jeffre Cheuvront, banned the use of the word 'rape' in Tory Bowen's rape trial supposedly because it was too inflammatory and prejudicial. He required that the words 'sex' or 'intercourse' be used instead to describe what happened between her and Pamir Safi.

Discussing ruling, Dahlia Lithwick said: [1]

"The real question for Judge Cheuvront, then, is whether embedded in the word sex is another "legal conclusion"—that the intercourse was consensual. And it's hard to conclude otherwise. Go ahead, use the word sex in a sentence. Asking a complaining witness to scrub the word rape or assault from her testimony is one thing. Asking that she imply that she agreed to what her alleged assailant was doing to her is something else entirely. To put it another way: If the complaining witness in a rape trial has to describe herself as having had "intercourse" with the defendant, should the complaining witness in a mugging be forced to testify that he was merely giving his attacker a loan?
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—reflects not just the fraught nature of language but also the fraught nature of rape prosecutions. We as a society still somehow think rape is different—either because we assume the victims are especially fragile or because we assume they are particularly deceitful."

Indian courts have not used the word rape in a number of their judgments although I think that that has more to do with being conservative than to do with worrying about the word being prejudicial which is anyway a non-issue since jury trials do not exist in India.

Their mindset is revealed in statements like this one made by the Rajasthan High Court in the case of Babu v State of Rajasthan [1984 CrLJ 74 : 'virginity is the most precious possession of an Indian girl and she would never willingly part with this proud and precious possession' ...if not anything else, that statement in itself could just as easily have been written by a Victorian judge in the 19^th century.

Link:
[1] http://www.slate.com/id/2168758/pagenum/all/#page_start

Fair Use, Copyright and Rowling (Again)

Ms Rowling plans to testify in the case of Warner Bros. Entertainment and J. K. Rowling v. RDR Books where the author and Warner Bros. are trying to prevent a small publisher from publishing 'The Harry Potter Lexicon'.

The case hinges on fair use and where fair use becomes copyright infringement. Under the law, 'in determining whether the use made of a work in any particular case is a fair use the factors to be considered include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.'

A few issues come to mind when one thinks of this:
1. Can content which accompanies some other work and which has been published online and endorsed by the copyright holder of that other work subsequently be accused of violating copyright simply because the author of the second work plans to publish it in a more traditional manner?
2. What is the relationship between an online work available to readers without charge and a book sold to readers both of which contain the same material?
3. Can a copyright holder actually stop the publication of a companion work considering that the copyright in the original work does not extend to preventing the publication of companion works? Can a copyright holder legitimately claim that their work has merely been repackaged? And can that claim be made after the work has already been endorsed by the copyright holder?

The New York Times [1] says that 'though the case pits a billionaire author against a tiny publishing house, the Potter fan base seems to have little sympathy for RDR' although in an earlier article, [2] it described Ms Rowling as a copyright hog. I find that surprising considering that most Harry Potter fan sites exist in part due to the right of fair use. And I'm not sure if such a work in which an author has put a substantial amount of effort into can infringe a copyright simply because it's not a available at no cost to readers.

Links:
[1] http://www.nytimes.com/2008/04/14/books/14potter.html?_r=1&ei=5090&en=960332b363f2f96c&ex=1365912000&partner=rssuserland&emc=rss&pagewanted=all&oref=slogin
[2] http://www.nytimes.com/2008/02/09/business/09nocera.html?_r=1&ref=business&pagewanted=all

Colin Read

This picture was uploaded on to Flickr August 27, 2007 by IreneKaoru and published under a CC Licence.
Related reading : http://www.guardian.co.uk/uk/2007/aug/24/ukcrime.gender

Cell Phone in Court

Judge Robert Restaino of Niagara Falls City Court sent 46 defendants in domestic violence cases to jail after a cell phone went off in his court room and no one claimed responsibility for it.

There were apparently no less than ten amicus curiae briefs filed in his support at the New York Court of Appeals.

I don’t really know what to make of this case. I do sympathise with the judge knowing how superbly annoying cell phones can be. I remember having an extremely strong desire to ask people to leave class when their cell phones rang. I’ve never felt affronted or any such thing as many people who are in the middle of giving a lecture seem to feel. However, I do think that a cell phone should essentially be private and that it’s basic courtesy to ensure that it doesn’t create a nuisance in a public setting whether it be a classroom, cinema hall or court room.
That being said, my first reaction was that this judge had overreacted although, much to my embarrassment, I lost much of my sympathy for the defendants once I realized that they were there on DV charges.As unfair as this is, I believe that few men (whether or not accused of DV) are not guilty of being abusive – possibly because I’m used to the way things operate in India. A very large fraction of men are abusive, many of them without even realizing it simply because they cannot imagine living their lives any differently. And society being what it is, few women would dream of approaching the police / courts unless they were already in hospital or in very real danger. And even if they do approach the system, they rarely receive relief. Take these two cases for example:1. A husband committed bigamy, left his first wife starving on the streets where she ultimately killed herself. It was held that he wasn’t guilty of being cruel to her and thereby abetting her suicide.2. A wife who did things like refuse to make tea for her husband and who thereby supposedly denigrated his ‘honour’ was held to be guilty of inflicting cruelty on him in a divorce case.And with thoughts like that in the back of my mind, even thought this case occurred in another country, all I could think was: perhaps it is better that they go to jail for something even if that something is entirely ludicrous.
Nonetheless, I would support this judge’s removal. He’s acted in an arbitrary manner and while today his actions have generated a lot of publicity since, let’s face it, they’re so bizarre that they’re funny, tomorrow he could just as easily do something even worse which doesn’t get any publicity such as, well, not instruct a jury properly regarding something like the burden of proof or reasonable doubt if the defendant happened to tick him off, and that is something which has the potential to wreak havoc on an innocent person.
The reports I’ve read of him do say that he has a spotless twelve-year long record. That doesn’t change my opinion though because records are unlikely to pick up on anything which isn’t particularly absurd and also since people change over time. A judge’s job is far too important for him to be given the benefit of the doubt.
Links:
[1] http://legalblogwatch.typepad.com/legal_blog_watch/2008/02/should-judge-wh.html
[2] http://blogs.wsj.com/law/2008/02/20/two-hours-of-inexplicable-madness-or-something-else/