Judicial Language Project

Problematic Language

Hogan v. West, 448 F.Supp.2d 496 (W.D. New York) (September 21, 2006)

(Case summary by Zoe Paolantonio, law student )

• Nature of the Case: John Hogan, an adult, repeatedly sexually assaulted his sister-in-law, K.F., who was 11 and 12 years old at the time of the assaults.
• Facts: Hogan raped K.F. both vaginally and anally, forcibly touched her genitals and made her watch pornography with him on several occasions over a period of about a year. Hogan threatened to kill the victim if she ever told anyone about his actions.
• Problematic Language: The court uses the words "kiss," "acceded," and "intercourse" and the phrases "engaged in sexual activities" and "performed oral sex" to recount acts of criminal abuse perpetrated by the defendant against the victim.
• Explanation of Problem: [The following explanation is not intended as a substantive critique of the outcome reached by the court]. The word "kiss" assigns an affectionate and erotic element to the perpetrator's behavior; a tone in language which should not be introduced when describing a sexual assault. Sexual assault is an act of violence but by using words like "kiss" the court wrongly suggests that at least this component of the sexual assault is loving, erotic, and harmless rather than offensive or violent (Bavaelas, Janet and Coates, Linda, "Is it Sex or Assault? Erotic Versus Violent Language in Sexual Assault Trial Judgment" Jounal of Social Distress and the Homeless (10) pp. 29-40 (Nov. 2001).) The court also says that K.F. "engaged in various sexual activities," "acceded" to Hogan's requests for oral contact with his genitals, and that, Hogan "had anal intercourse with her." The dictionary definition of "engage" is "to cause to participate" or "to commence to take part in a venture" (Merriam Webster's Collegiate Dictionary, Tenth Addition, copyright 2001 by Merriam Webster, Inc). Because K.F. was not a participant in consensual actions, but rather a victim/"recipient" of violence, the word "engage" is inappropriate as it implies a degree of voluntary involvement, thus responsibility, on the part of the victim. This language not only diminishes the responsibility of the adult perpetrator but causes added harm to the child because research has suggested that attributions of self-blame regarding child sexual abuse are 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). The word "acceded" means "to become a party to an agreement" (Merriam Webster's Collegiate Dictionary, Tenth Addition, copyright 2001 by Merriam Webster, Inc). As a minor K.F. was incapable of agreeing to Hogan's actions, thus the court should not have described the situation as though it were a consensual one between two people who had the capacity to enter into an "agreement." Characterizing the perpetrator as having "performed oral sex" and "had anal intercourse with [K.F]" also wrongly implies that the acts were sexual rather than violent because the word "intercourse" is defined not as a crime but as "physical sexual contact between individuals" (Merriam-Webster online dictionary). Any suggestion that a child was involved in a sexual act rather than was being victimized by a wholly responsible adult diminishes the perpetrator's culpability (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001).
• Suggested Alternatives: In the future, the court should use more clinical terms in describing the abuse and phrases that do not suggest that the victim consented to, enjoyed or was not harmed by the abuse. For example, instead of "had anal intercourse with K.F.," the court could say, "the defendant forced his penis into the victim's anus." Instead of "performed oral sex", the court should have only said "the perpetrator put/placed/forced his mouth on the victim's vagina" and instead of saying that the perpetrator "kissed" the victim, the court should have said "the perpetrator put/placed/forced his mouth on the victim's mouth." These descriptions of the perpetrator's acts are more clinical, less sensual and thus more accurate ways for the court to depict violence toward a child.