Judicial Language Project

Problematic Language

State v. Goupil, 154 N.H. 208 (September 28, 2006)

(Case summary by Elizabeth Meier, law student )

• Nature of the Case: The defendant was convicted of five counts of aggravated felonious sexual assault and one count of theft by unauthorized taking.
• Facts: The victim lived alone in a first floor apartment in Laconia. In the early morning of April 23, 2004 two men broke into her apartment and entered her bedroom. They repeatedly punched her in the head, neck, and back. The victim was screaming and attempting to defend herself when one of the men place a knife to her neck and said, "shut up stop screaming or you're going to fucking die." After he began asking her personal questions about her sexual past he forced her into the shower with him. He then forced her to go back to the bedroom where he and the other assailant both raped her. In describing the crime, the court wrote that the victim was "sexually assaulted", that the defendant "fondled her vagina", and that the victim "complied with [the defendant's] order to lie down.
• Problematic Language: "Fondled her vagina," "she complied with his order to lie down," and the victim was "sexually assaulted".
• Explanation of Problem: The language "fondled her vagina" is inappropriate because the word "fondled" means "to handle tenderly, lovingly, or lingeringly" (Merriam-Webster Online Dictionary). Using terminology that means "tender" and "loving" is improper to describe acts of violence. Such language suggests that the act involved nonharmful conduct or actions that the victim might have enjoyed because "tender" sexual activity, as opposed to criminal activity, is generally enjoyable. (Bavaelas, Janet and Coates, Linda, "Is it Sex or Assault: Erotic Versus Violent Language in Sexual Assault Trial Judgment," Journal of Social Distress and the Homeless, (10), pp. 29-40 (Nov. 2001)). By implying that violence is not harmful, the defendant's culpability is mitigated which obscures the criminal nature of his behavior. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). Describing the acts in terms ordinarily used for pleasurable and affectionate acts (and avoiding descriptions of the violence) makes it harder for the reader of this language to conceptualize the conduct as unwanted, much less criminal, harm. The language, "she complied with his order to lie down" is problematic because it focuses on the victim's actions rather that the defendant's criminal act and implies that the victim consented to the perpetrator's violence. This language shares responsibility between the criminal and the victim by making the victim an affirmative actor rather than a receiver of harm, and thus portraying the criminal act as less harmful. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). Further, describing the victim as "compliant" is a form of "victim blaming" language that perpetuates the negative stereotype that victims are in some way responsible for the acts of sexual violence perpetrated against them. Throughout the opinion "sexually assaulted" was used to describe the rapes. This language does not accurately describe the nature of the defendant's criminal behavior. The extent to which the offender can be held responsible for his actions is dependent in part on the extent to which the offender's actions are understood and comprehended by the reader. Consequently, vague language should be avoided because it can mask both the seriousness of the harm and the deliberate nature of the perpetrator's actions. (Coates, L. "Telling it like it isn't: obscuring perpetrator responsibility for violent crime." Discourse and Society, (502), pp. 499-526 (2004). By employing a vague term such as "sexually assaulted", the defendant is removed from the act because the reader is unable to absorb and accurately store information about the crime. Language should also avoid creating an impression that conduct is about "sex" and should emphasize instead, that it is an assault that had sexualized features. "Is it Sex or Assault: Erotic Versus Violent Language in Sexual Assault Trial Judgment," Journal of Social Distress and the Homeless, (10), pp. 29-40 (Nov. 2001).
• Suggested Alternatives: Rather than "fondled," the court should state: "the perpetrator forcibly assaulted the victim's vagina with his hand." The court should also clarify whether this contact included penetration of the labia and/or the vagina as this would constitute a more serious offense than nonpenetration contact. By using more clinical language the acts are seen in their proper criminal light rather than in affectionate terms. "Is it Sex or Assault: Erotic Versus Violent Language in Sexual Assault Trial Judgment," Journal of Social Distress and the Homeless, (10), pp. 29-40 (Nov. 2001). Rather than using the phrase, "sexually assaulted", it would be more accurate to say, "the defendant penetrated the victim's vagina with his penis" or simply "the defendant committed penile-vaginal penetration or rape". This more descriptive phrase clarifies for the reader the nature of the harm and avoids leaving the misimpression that the perpetrator may have committed a less serious offense. Rather than "she complied with his order" the court should state, "the victim was forced by the perpetrator to lie down." The victim's actions were a direct result of the perpetrator's order. She did not comply; she was forced.