Judge says free speech suit may be rape-case maneuver

OMAHA - The accuser in a sexual assault case who is fighting to say the words “rape” and “victim” in court must prove to a federal judge by Tuesday that her lawsuit against a state judge was not frivolous.

“I have serious reservations about whether this action was commenced for the improper purpose of forcing Judge (Jeffre) Cheuvront to recuse himself ... or for the improper purpose of generating pretrial publicity,” U.S. District Judge Richard Kopf of Lincoln wrote in his order.

Kopf warned Tory Bowen and her attorneys that “sanctions may be imposed for failure to show cause.” The sanctions could include dismissal of the case, fines or “such other sanctions as the court deems proper,” Kopf said.

Bowen, 24, said in her complaint filed Sept. 6 that Cheuvront, a Lancaster County district judge, violated her free speech rights by barring words including “rape,” “victim” and “assailant” from the trial of Pamir Safi.

Safi, 34, was charged with first-degree sexual assault stemming from an encounter between Bowen and Safi at his apartment on Oct. 31, 2004. Safi says he and Bowen had consensual sex.

Bowen, a former student at the University of Nebraska-Lincoln who lives in Washington, D.C., says she was too intoxicated to give consent and that Safi knew it.

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

Said Kopf in his order filed Monday: “There is something profoundly disturbing about the notion that a federal judge has the power to tell a state judge how to do his job, particularly when that state judge is presumably trying to do nothing more than protect the rights of a citizen who may have been wrongly accused of rape.”

Kopf also expressed his doubts about whether the lawsuit “has any legal basis whatsoever.”

“For example,” he said, “I cannot find any precedent for a suit of this kind.”

That, said Bowen's attorney Wendy Murphy of Boston, is precisely the point, because she couldn't find any guidance either.

“It's really appropriate for the federal court to be saying to me, 'What gives?”' she told the Lincoln Journal Star. “I did a lot of legal research, so I'm more than happy to answer the court's questions.”

She did not immediately respond to a message left Thursday by The Associated Press.

In her filing, Murphy said she was seeking federal help because “judicial review to determine whether (Cheuvront's) order violates federal constitutional principles is unavailable to the plaintiff under Nebraska law.”

In July the state Supreme Court refused to rule on Cheuvront's order.

The language restrictions were in effect for Safi's first trial, in November, which ended in a hung jury. The jury foreman has said the language ban had no role in the trial outcome.

Cheuvront also intended to bar the words from Safi's second trial, but Cheuvront declared a mistrial in July as the final jurors were being selected.

He said extensive publicity about the case, including protests outside the courthouse, made it impossible to impanel an impartial jury.

Lancaster County prosecutors plan to seek a third trial, but the date has not been set.

The judge's language order was defensible and routine, said James Martin Davis, a noted Omaha-based defense attorney. He has spent 32 years working in courtrooms, including two years as a prosecutor in Indianapolis.

“This happens all the time in courthouses all throughout the country every day,” Davis said Thursday. “I've got a case in Lincoln right now in which certain language is being barred.”

Allowing Bowen or a prosecutor to describe the incident as rape would presume the defendant's guilt, Davis said.

“Rape is a conclusion, a legal conclusion,” Davis said. “She can say, ‘He had sex with me against my will.'

“She's not a victim until the jury decides she's a victim.”

Despite his apprehensions about the motives behind Bowen's lawsuit, Kopf noted in his order that he, too, was troubled by the language restrictions.

“There is also something profoundly disturbing about a judge telling a citizen that she cannot say she was raped when testifying as a victim in a criminal case, particularly when the victim is presumably trying to do nothing more than describe what happened to her.”

Other than their filings or statements from the bench, judges Cheuvront and Kopf have refused to comment publicly about the case or the lawsuit.