Judicial Language Project

Problematic Language

Ruby v. State,114 P.3d 425, 2006 WL 2974261 (Wyo. 2006) (October 19, 2006)

(Case summary by Jessica Babine, law student )

• Nature of the Case: The defendant videotaped himself perpetrating several types of sex crimes against children.
• Problematic Language: "Engaging in sexual activities," "taking indecent liberties with a minor," "his act of rubbing her breasts," "forced one child to perform fellatio while the other child watched"
• Explanation of Problem: The description of the defendant "engaging in sexual activities" with a child is a vague phrase that connotes equal involvement by the perpetrator and the victim and creates the image of a sexual rather than a criminal scene. Merriam-Webster defines "engage" as "to induce to participate or take part." To imply that the child was an active participant in the assault, rather than an unwilling receiver of the violent acts of another, assigns responsibility to the child and distances the defendant from culpability for the act. The attachment of the word "engage" to the phrase "sexual activities" diminishes the violent and criminal nature of the assault and gives the reader a sense that the act involved nonharmful conduct that the victim might have enjoyed because sexual activity, as opposed to criminal activity, is generally pleasurable. (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).) The phrase "taking indecent liberties with a minor" is a vague term that does not describe the nature of the harmful acts perpetrated against the victim, thus does not accurately convey that a crime occurred. The extent to which the offender can be held responsible for his actions is partially dependent 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). The term "breast" implies the physicality of an adult woman and creates a scene of sexuality rather than one of abuse. Such language imposes a sense of adult sexuality on the child which can affect the extent to which the conduct at issue is perceived as harmful. (Bavelas, J. and Coates, L. "Is it Sex or Sexual Assault? Erotic Language Versus Violent Language in Sexual Assault Trial Judgments," Journal of Social Distress and the Homeless, (12)(1), pp. 29-39 (2001). Using "perform fellatio" to describe the incident 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 http://www.m-w.com/dictionary/perform) To say "perform fellatio" on the defendant implies that the child could have had some will or propensity to carry out the action because it is terminology typically used to depict sexualized scenes, not one of abuse against a minor. 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).
• Suggested Alternatives: Instead of using terms like "engaging in sexual activities," the court should use a more appropriate phraseology, such as "forced sexual activities or the perpetrator forced the child victim to.. .[describe exactly what the defendant did]. Instead of "taking indecent liberties with a minor", the court should use more precise terms to portray the specific nature of the defendant's illegal act such as "the perpetrator forced his penis into the child's vagina". Wording like "perform fellatio" should be avoided in favor of phrases such as "the perpetrator forced his penis into the child's mouth." This statement focuses on what the actor did to the victim, eliminating victim responsibility and assigning direct responsibility for the act to the defendant. Because a child does not have breasts, the court should have used the word "chest" or "female chest" or "undeveloped breast".