Author
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Topic: Judge bans the word rape from his courtroom.
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jrose
babble intern
Babbler # 13401
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posted 29 June 2007 07:00 AM
A Nebraska judge bans the word rape from his courtroom. quote: Yet a Nebraska district judge, Jeffre Cheuvront, suddenly finds himself in a war of words with attorneys on both sides of a sexual assault trial. More worrisome, he appears to be at war with language itself, and his paradoxical answer is to ban it: Last fall, Cheuvront granted a motion by defense attorneys barring the use of the words rape, sexual assault, victim, assailant, and sexual assault kit from the trial of Pamir Safi—accused of raping Tory Bowen in October 2004. ...Bowen testified for 13 hours at Safi's first trial last October, all without using the words rape or sexual assault. She claims, not unreasonably, that describing what happened to her as sex is almost an assault in itself. "This makes women sick, especially the women who have gone through this," Bowen told the Omaha World-Herald. "They know the difference between sex and rape." Nebraska law offers judges broad discretion to ban evidence or language that present the danger of "unfair prejudice, confusion of the issues or misleading the jury." And it's not unheard-of for judges to keep certain words out of a courtroom. Words like victim have been increasingly kept out of trials, since they tend to imply that a crime was committed. And as Safi's lawyer, Clarence Mock, explains, the word rape is just as loaded. "It's a legal conclusion for a witness to say, 'I was raped' or 'sexually assaulted.' … That's for a jury to decide." His concern is that the word rape so inflames jurors that they decide a case emotionally and not rationally. ... 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? ... You needn't be a radical legal feminist to cringe at the idea of judges ordering rape complainants to obliterate from their testimony any language that signifies an assault. At worst, that judge is ordering her to lie. At best, he is asking her to play at being a human thesaurus: thinking up coded ways to describe to the jury what she believes to have happened. If Mock, Safi's attorney, is correct in stating that "trials are competing narratives of what happened," why should one side have a lock on the narrative language used? Can it really be that the cure for the problem of ambiguous courtroom language is to permit less of it?
From: Ottawa | Registered: Oct 2006
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Michelle
Moderator
Babbler # 560
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posted 29 June 2007 07:12 AM
Uh, what? This is the most stupid, misogynist thing I've ever heard! The word "rape" and "sexual assault" is prejudicial at a RAPE TRIAL??Gee, I can just imagine the testimony. "He held me down, hit me a few times, and then he raped..." "Ms. Doe - please remember that "rape" is prejudicial. Please do not use that word." "I'm sorry, your honour. He forced me to make love with him. Then he ra -- er, we had sex with each other at knifepoint. I tried to get away, and I screamed for help, but no one heard me, and he sexually assaulted me for so long..." "Ms. Doe...?" "Er, sorry, made love to me for so long that I was bruised..." "Ms. Doe, I'm sorry, you can't use the word "bruised" in my courtroom. It's prejudicial." "I'm sorry, your honour. He made love to me for so long, I had marks of love all over my body." "That's better, Ms. Doe. Thank-you."
From: I've got a fever, and the only prescription is more cowbell. | Registered: May 2001
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Michelle
Moderator
Babbler # 560
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posted 29 June 2007 08:34 AM
Here's what really ticks me off. The fact is, there are allegations being made against this guy. The allegations are that he sexually assaulted, or raped, this woman. In order to present the evidence to support this allegation, they have to be able to use the words! The witness has to be able to say, "He raped me." That's the allegation! It's up to the defence, if they want to claim that it was consensual sex, to use the term "sex" or "sexual intercourse" or "lovemaking" or whatever other word might do for their point of view.If you are alleging that someone has sexually assaulted you, then you have to be able to say that the person sexually assaulted, or raped you. That's what the whole trial is trying to determine - whether or not a rape occurred! Bowen is a witness for the prosecution who claims a rape DID occur, so of course she's going to use the word "rape". It's disallowing her testimony and her version of events to force her not to be able to say what she says it was. This is just ridiculous. This cannot be defended, even considering the assumption of innocence. Obviously witnesses who are telling their side of the story and who are accusing the person of committing the crime are not going to assume the person's innocence. It is up to the judge and jury to assume the person's innocence, not the prosecution and the witnesses!
From: I've got a fever, and the only prescription is more cowbell. | Registered: May 2001
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Michelle
Moderator
Babbler # 560
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posted 29 June 2007 09:21 AM
It just floors me that a judge, who is supposed to hear both sides of the story and then decide (or help the jury decide) would not allow one side of the story to be told.The witness's side of the story is that she was raped. The accused's side of the story is that it was consensual sex. So, they should both be allowed to tell their story, as they see fit, and let the jury decide! The worst part of this is that the judge, putting artificial words in this woman's mouth, is turning her into a non-credible witness, too. If the jury isn't aware of the restriction, and the woman sounds unnatural (as of course she would, being restrained from using the words that come naturally), then the jury could conclude from it that she is lying. [ 29 June 2007: Message edited by: Michelle ]
From: I've got a fever, and the only prescription is more cowbell. | Registered: May 2001
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jeff house
rabble-rouser
Babbler # 518
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posted 29 June 2007 11:47 AM
quote: Here's what really ticks me off. The fact is, there are allegations being made against this guy. The allegations are that he sexually assaulted, or raped, this woman. In order to present the evidence to support this allegation, they have to be able to use the words!
In Canada, we don't use the word rape at all. This was the product of a series of reforms supported by feminists. The reasoning at the time was that "rape" does not convey the physical, assaultive nature of the act, which, according to many such as author Lorene Clark, "has nothing to do with sex, it has to do with power". Generally, complainants in a sexual assault trial also do not say "He sexually assaulted me". That is because it is a legal term. It is up to the jury to decide whether the acts described amount to the legally-defined term "sexual assault". Typically, women explain how and where they were touched. So, "he entered me by force" or "He was grabbing me and I did not consent" are the most common ways. The "sexual" nature of sexual assault in very broadly defined. In particular, it doesn't have to be done for the purposes of sexual gratification. It becomes "sexual" assault if it impacts upon the sexual integrity of the victim. So, for example, a father who invades his daughter's physical privacy to determine if she is a virgin commits sexual assault, even though his purpose is patriarchal-proprietary.
From: toronto | Registered: May 2001
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jeff house
rabble-rouser
Babbler # 518
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posted 29 June 2007 11:51 AM
quote: When has a judge ever told a witness, "don't say your money was stolen. Don't say you were assaulted. Don't say the cheque was fraudulent."
Actually, this happens all the time in court. It's not too hard to provide the testimony: Did he take your money? "Yes". Did you give him permission to take it? "No". The practice of avoiding the stating of conclusions by witnesses is utterly common. Ask any Crown Attorney whether he or she says: "When he struck you with his hand, did he have your consent to do so?" They all do it.
From: toronto | Registered: May 2001
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Ken Burch
rabble-rouser
Babbler # 8346
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posted 29 June 2007 03:07 PM
I thought that in a rape case, the prosecutor had to prove that the accused committed the rape. This twists that into the victim having to prove that she in fact WAS raped, and essentially having no way to do so.It would have been enough to have it referred to as "the alleged rape". The fact of her having been a victim should not have been arbitrarily put in question. This judge would probably overturn the "rape shield" laws if he was on an Appeals or Supreme Court at state or federal level.
From: A seedy truckstop on the Information Superhighway | Registered: Feb 2005
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ChicagoLoopDweller
rabble-rouser
Babbler # 14097
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posted 30 June 2007 08:00 AM
Stargazer, you are exactly right. Courts do not deal in reality. They deal in legal concepts. In reality does it make sense that child pornography found on a computer without a warrant will most likely be excluded in a child molesters trial? In reality, if you have child porn, or a gun, or cocaine, or a bloody shirt, warrant or no warrant shouldn't that be evidence? The law, rightly so for privacy reasons, says no...this is why people hate the term "technicality." He got off on a technicality usually means one of those pesky rights got in the way. One right is that the jury should not be prejudiced. (And of course, in reality, most of the time that evidence will be introduced.)I think one problem is how do you change the system. What system do you use? And please, you can tell me I'm a man and I don't get it, that it's obvious...but to many people it isn't obvious. Frankly, it's difficult. And I don't know that anyone has the answer...I certainly don't. How do you balance protecting the victim from being re-victimized against the right of a defendant to a fair trial and the assumption of innocence.
From: Chicago | Registered: Apr 2007
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Sven
rabble-rouser
Babbler # 9972
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posted 12 July 2007 07:45 AM
quote: Originally posted by Michelle: It just floors me that a judge, who is supposed to hear both sides of the story and then decide (or help the jury decide) would not allow one side of the story to be told.
They can tell their story without using “legal conclusions”. The defendant should not be able to say, “She consented to having sex with me.” Instead, he should be required to describe what actual words were said and what actions took place (assuming he testifies at all). To look at an analogy: Murder. If a husband sees his wife killed, he would be required to describe what words and actions he saw. He can’t say, “He murdered my wife.” “Murder” requires several things in order to be proven. For example, Minnesota law, for one type of murder in the first degree, requires that the state prove all of the following: (1) The defendant causes (2) the death (3) of a human being (4) with premeditation and (5) with intent to effect the death (2) and (3) are usually obvious (if there’s a body). But, (1), (4), and (5) may be in dispute. Only if the state can prove that the defendant’s conduct met all five of those elements can the death be called “murder in the first degree”. The term “premeditation” has it’s own specific definition (which must be supported with evidence before a legal conclusion can be made that there was, in fact, “premeditation”): In Minnesota, “premeditation” means: “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission” And, then, there are several degrees of murder (with their own definitions). So… The husband in this example can’t simply say, “He murdered my wife.” He needs to describe what happened. “He raised his gun and said, ‘I’ve been thinking about killing you for years because you failed me in 12th grade English. Last week, I finally decided to purchase a gun to kill you. Now, I’m going to do it.’ And, then, he pulled the trigger and shot my wife six times in the chest. He ran out the door and I called 911 and my wife was dead when they got to our house.” Then, the jury makes a legal determination based on that and other evidence as to whether or not “murder” occurred. Obviously, it’s usually not that cut-and-dried. And that's true for all crimes. Now, whether this is "the right" way to address this or not, is a separate question. If it's not, then the existing process would need to be replaced with an alternative process. [ 12 July 2007: Message edited by: Sven ]
From: Eleutherophobics of the World...Unite!!!!! | Registered: Jul 2005
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nutboy
recent-rabble-rouser
Babbler # 14337
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posted 17 July 2007 01:54 PM
I agree that the alleged victim in this case should be allowed to tell her side of the story in whatever words she chooses. However, it is appropriate that no court officer refer to her as "victim", instead "accuser" or "alleged victim" must be used.I also am very wary of the idea that women who have had some amount of alcohol, but are not actually unconscious from that alcohol, can claim that they were "raped" simply because they were drunk of their own volition. By that standard, a heck of a lot of MEN have been "raped", too - how many men have, when tipsy, had sex with a woman that they wouldn't have had sex with if they were sober? Of course, if a woman is touched, etc, in any way while unconscious, or if the drug/alcohol is surreptitiously slipped into her, then the man has indeed committed a crime or at least been a cad
From: Ottawa | Registered: Jul 2007
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jrose
babble intern
Babbler # 13401
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posted 12 September 2007 08:14 AM
Update from Feministing.com quote: Woman sues judge for banning the word 'rape' at trial Remember the judge in Nebraska who banned the word "rape" at a rape trial? (Cough, asshole, cough.) Remember the bad-ass woman who refused his order? Well, she's suing.The accuser in a sexual assault case is suing a judge because he barred the word "rape" and other words from the trial. The federal court complaint filed Thursday in U.S. District Court in Lincoln, Neb., claims Lancaster County District Judge Jeffre Cheuvront violated the accuser's First Amendment right to free speech by barring her from saying words including "rape," "victim" and "assailant" during the trial of Pamir Safi. Good for her, cause that was some bullshit. By the way, there have been two mistrials in this case because of the controversy over the language ban. Prosecutors are planning on seeking a third trial.
From: Ottawa | Registered: Oct 2006
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quelar
rabble-rouser
Babbler # 2739
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posted 12 September 2007 10:30 AM
Sorry for a bit of drift, but I think it relates.I was listening to a report on the 'sexual assaults' at the University campus and I was thinking that just in the way it was being reported they were in effect, minimizing the crime. The reason is, when I hear RAPE, I cringe. I actually think it's an even more brutal crime than murder in most cases, as murder doesn't leave a victim constantly reliving the event (family and friends, but not the actual victim). But when I hear 'sexual assault' and rightly so, it can conjure up images of inappropriate touching, and other acts that are reprehensible but not as violent and destructive as a RAPE. To the same effect, it sounds like this judge was trying to minimize the criminal act by removing words that put clear images in the minds of the jury of the brutal act.
From: In Dig Nation | Registered: Jun 2002
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bigcitygal
Volunteer Moderator
Babbler # 8938
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posted 12 September 2007 12:43 PM
Going with quelar's drift, this is one of the issues with the term "sexual assault". On the one hand, we (I'm speaking for all feminists now ) wanted a larger term than rape, that would encompass the illegality and the experience of violation of the many forms that "sexual assault" can take, including rape. One the other hand, it's true that the emotional punch that the word "rape" delivers doesn't happen for "sexual assault". For me (now just speaking for myself) the notion of encompassing is desireable, so that all women and men understand the violation and violence that's expressed in a sexual manner takes many forms. As women, fear of sexual assault is real, and we don't need a word or phrase to carry the "emotional" weight. Whatever the term we use, the reality remains the same. [ 12 September 2007: Message edited by: bigcitygal ]
From: It's difficult to work in a group when you're omnipotent - Q | Registered: Apr 2005
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jeff house
rabble-rouser
Babbler # 518
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posted 12 September 2007 02:14 PM
quote: was listening to a report on the 'sexual assaults' at the University campus and I was thinking that just in the way it was being reported they were in effect, minimizing the crime. The reason is, when I hear RAPE, I cringe. ....But when I hear 'sexual assault' and rightly so, it can conjure up images of inappropriate touching, and other acts that are reprehensible but not as violent and destructive as a RAPE.
When I was in law school in the mid-1970s, Canada had a crime called "rape". However, there was a broad campaign against this word, largely among feminists. As I recall, the idea was that "rape" was primarily an act of violence in which the female was put under domination by the male, and that the word "rape" understated that violence. Eventually, the government agreed, and "rape" became an act of violence/assault, specifically, "sexual assault". It may be that the words sexual assault are too undefined, since they include anything from an unwanted caress to traditional "rape". But commonly, the women's movement also objected to traditional definitions of "rape" which required penetration; they felt that the offence was committed when violence and sexual subjugation were present, whether or not penetration occurred. So the question was never answered as to what, exactly would be "more serious sexual assault" unless injuries were present. But obviously, women hated the idea that a serious sexual assault could not occur unless the victim had injuries.
From: toronto | Registered: May 2001
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Sean in Ottawa
rabble-rouser
Babbler # 4173
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posted 12 September 2007 08:47 PM
I am amazed by the story even from a legal point of view.A rape (like the example of murder above) has more than one element that must proven-- what happened in physical terms and whether there was consent-- a disposition of the victim. In order to establish this disposition the victim and any witnesses have to share both knowledge of the physical events and her disposition. I say what I think a few others are getting at here that it is not a fair trial if a person cannot use their own language and make their own assertions about not only what happened but if it was a rape or not. As for the requirement to prove the description of events rather than make assertions about disposition one does not replace the other. So the fact that the witness/victim must explain what happened in detail is not in conflict with her right to also explain her disposition and make her allegations of what really happened. One of the social functions of a trail is to face and confront the abuser. If the victim is denied control of her own characterization of the event then that is a further victimization and a denial of due process. And yes, victims need due process as much as the accused. I agree with those who say the Judge is not fit to be a lawyer or any officer of a court (never mind a judge) if there is a lack of understanding about all this. [ 12 September 2007: Message edited by: Sean in Ottawa ]
From: Ottawa | Registered: Jun 2003
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jeff house
rabble-rouser
Babbler # 518
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posted 13 September 2007 11:35 AM
Well, from a legal point of view, you're wrong.The idea that the victim/complainant is entitled to testify as she sees fit is completely unfounded in law. Judges ROUTINELY instruct witnesses to state specifically the acts which the accused committed, and not conclusions. "He raped me" is a statement of a conclusion. To see that this is so, imagine a witness on the stand who testified: "He committed treason". Obviously, that could not convince anyone, since there is no certainty that the witness even knows how treason is defined in law. It is not very difficult for an honest witness to say what the accused actually DID; that is, "he grabbed me, he took off my clothes, etc." It is up to the jury to decide whether it is rape or not.
From: toronto | Registered: May 2001
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remind
rabble-rouser
Babbler # 6289
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posted 13 September 2007 05:41 PM
quote: Originally posted by ChicagoLoopDweller: What would be interesting, but would never, could never, and should never happen, would be if the trial judge had offered the victim the chance to exercise her first amendment rights on the condition that she agree to waive the protections afforded by rape shield laws and allow the defendant the first amendment right to say what he wants about the victim.The first amendment cuts both ways.
What is your point with this nonsensical post and indeed your response to Sven's? The reality is, every time a woman goes to court when she was raped she, the victim, is put on trial. What is your point about the defendant saying what he wants about the victim? He/they do, they say it was "consensual", or "did not happen" what else do you think they should be saying?
From: "watching the tide roll away" | Registered: Jun 2004
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Sean in Ottawa
rabble-rouser
Babbler # 4173
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posted 13 September 2007 06:25 PM
quote: Originally posted by jeff house: Well, from a legal point of view, you're wrong.The idea that the victim/complainant is entitled to testify as she sees fit is completely unfounded in law. Judges ROUTINELY instruct witnesses to state specifically the acts which the accused committed, and not conclusions. "He raped me" is a statement of a conclusion. To see that this is so, imagine a witness on the stand who testified: "He committed treason". Obviously, that could not convince anyone, since there is no certainty that the witness even knows how treason is defined in law. It is not very difficult for an honest witness to say what the accused actually DID; that is, "he grabbed me, he took off my clothes, etc." It is up to the jury to decide whether it is rape or not.
If the victim is called (and you are right that they do not have to be-- although practically they are a witness) then they can indeed characterize facts based on thier language for which they have DIRECT knowledge. I would argue that testifying that it was a rape is saying that consent was not given-- if it is the victim testifying then this should be fair ball-- another witness could not know that and therefore should not use the word. I have a great deal of difficulty seeing why a victim cannot use that language and it has been used before so the precedent of stopping a victim from saying that is unusual. I'll grant that this of course cannot extend to those who would not know. As well there is a practice to give considerable latitude to witnesses to use their own language except where there is a suggestion of something they cannot know -- like the internal thought process of another person.
From: Ottawa | Registered: Jun 2003
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jrose
babble intern
Babbler # 13401
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posted 02 October 2007 07:39 AM
Another update: quote: A Nebraska federal judge dismissed a lawsuit against a state judge who barred anyone from saying "rape" or "victim" during a criminal trial, ruling Tuesday that the accuser failed to prove that he should intervene. U.S. District Judge Richard Kopf also determined Tory Bowen didn't provide enough evidence to show her lawsuit against Lancaster County District Judge Jeffre Cheuvront wasn't frivolous. Bowen, 24, filed a complaint earlier this month against Cheuvront, saying he violated her free speech rights by barring the words, along with the phrase "sexual assault," from the trial of Pamir Safi last November. Cheuvront said he banned the language because he was concerned about Safi's right to a fair trial. Kopf said he could not imagine a jury being swayed because a woman uses the word "raped" instead of "some tortured equivalent for the word," but he said that wasn't his decision to make. Earlier this month, Kopf said he was concerned that the purpose of Bowen's lawsuit was to force Cheuvront to recuse himself from the criminal case. "Make no mistake ... the plaintiff wants me to jump right into the middle of the pending state criminal case and the upcoming third trial," Kopf wrote Tuesday. Safi, 34, is charged with first-degree sexual assault. He said he and Bowen met at a bar and had consensual sex in October 2004. She said she was too intoxicated to give consent. Bowen said the ban hindered her testimony during the trial because she had to pause to make sure she didn't use the barred words. Cheuvront declared a mistrial after the jury deadlocked 7-5. He declared a second mistrial in July during jury selection, citing news coverage and public protests on behalf of Bowen. Prosecutors have said they plan to seek a third trial. A message left Tuesday for Bowen's attorney, Wendy Murphy, wasn't immediately returned. A message left for Cheuvront's bailiff wasn't returned. Judicial guidelines typically bar judges from commenting on current cases. 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.
From: Ottawa | Registered: Oct 2006
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