Judicial Language Project
Problematic Language
Commonwealth v. Pelosi, 441 Mass. 257 (March 19, 2004)
(Case summary by Margeaux Herman, law student )
- Nature of the Case: Child Sexual Abuse
- Facts: A defendant was convicted at trial of two counts of rape and two counts indecent assault and battery perpetrated on his minor children. At a pretrial motion hearing, the defendant sought production of all of the victims' counseling records in the custody of various social service agencies. The basis for defendant's motion was several videotaped statements of the children and defendant's wife given to counselors. The defendant alleged that after he and his wife separated, the victims' interaction with the social service agencies was indicative of unreliable accusations of sexual abuse, motivated by animosity between him and his wife, or the product of "coaching" or repeated leading questions. After a divided panel of the Appeals Court affirmed the defendant's conviction, the defendant was granted further appellate review to determine whether the trial court made an adequate determination of privilege.
- Problematic Language: Implication that victims of sexual assault are not credible.
- Explanation of Problem: The following explanation is not intended as a substantive critique of the outcome reached by the Court. In a footnote, the court establishes a committee to study defendants' access to sexual assault victims' privileged communications. This improperly suggests that the credibility of sexual assault victims bears special scrutiny. By singling out sexual assault cases, the Court implies that the credibility of sexual assault victims (who are overwhelmingly women) as a class should disproportionately be subjected to special criticism in the context of defense requests for victims' private records.
- Suggested Alternatives: Whatever the committee is charged with studying, there should be no implication that women or sexual assault victims have "special" credibility problems. If the court's goal is to develop an appropriate protocol for managing trial subpoenas that seek access to confidential records of victims and witnesses in criminal cases, the "special committee" should examine the issue in a generic sense, not with particular regard to victims of sexual violence.