Judicial Language Project

Problematic Language

Howard v. State, 281 Ga.App. 797 (October 5, 2006)

(Case summary by Jessica Babine, law student )

• Nature of the Case: This case involves a 24 year-old brother who sexually assaulted his 15 year-old sister.
• Problematic Language: The problematic language includes the phrases "perform oral sex on him," "allow him to perform oral sex on her"; "to engage in sexual intercourse with him" and "private part".
• Explanation of Problem: Describing the incident as the child "performs" oral sex on the defendant implies that the child not only actively participated but also bears some moral responsibility for the crime. To "perform" means "to carry out an action or pattern of behavior." (Merriam-Webster Online Dictionary http://www.m-w.com/dictionary/perform, November 10, 2006) To say that the child victim "performed oral sex" on the defendant implies that the child could have had some will or propensity to carry out the action. This language not only diminishes the responsibility of the adult perpetrator but causes added harm to the child. Research has suggested that self-blame regarding child sexual abuse is related to some indicators of subsequent poor adjustment for the victim (McMillen, Curtis. "Attributions of blame and responsibility for child sexual abuse and adult adjustment." Journal of Interpersonal Violence. Vol 12 (1), 1997). Portraying the child victim as a willing participant in the abuse not only falsely suggests that a minor can somehow consent to the crime committed against them, it also takes the focus away from the defendant's criminal behavior. The use of the phrase "allow him" in this case implies that the child victim, by "allowing", granted permission to the perpetrator to commit the assault. To "allow" means "to forbear or neglect to restrain or prevent" (Merriam-Webster Online Dictionary http://www.m-w.com/dictionary/allow, November 10, 2006). This language makes the child a legal and moral cause of her own harm - rather than a receiver of violence. The language also implies, falsely, that a child has the emotional and legal capacity to participate in a sex act with an adult. By using language that assigns responsibility to the child the defendant is distanced from the act and the act is perceived as less harmful because responsibility for the behavior is shared between the criminal and the victim. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). Similarly, the use of the verb "engaging" conveys a sense of participation from both parties, rather than the existence of a nonconsensual act of violence towards a child. Merriam-Webster defines "engage" as "to induce to participate or take part." (Merriam-Webster Online Dictionary http://www.m-w.com/dictionary/engage, November 10, 2006). This implies that the child was an active participant in the assault, rather than an unwilling recipient of the violent acts of another. This language also obscures the defendant's exclusive legal responsibility because the word "engage" suggests equal participation by both persons. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529, (2001)). It also perpetuates the dangerous stereotype that victims are somehow responsible for the acts of violence committed against them. The use of the term "private part" because of its vagueness and common association with the language used by children, minimizes and disguises the nature of the harm.
• Suggested Alternatives: Instead of "perform oral sex" and "private part", phrases that articulate the nature of the touching should be used such as: "the defendant put his penis into the child's mouth", "the defendant forced the child's penis into his mouth" and "the defendant put his finger in the victim's rectum". Instead of saying the child "allowed" or "engaged" in certain conduct, the court should use terms that describe only the defendant as the aggressor and affirmative participant in the crime.