Judicial Language Project

Problematic Language

People v. Aller, 821 N.Y.S.2d 657 (October 3, 2006)

(Case summary by Kareen Bar-Akiva, law student )

• Nature of the Case: Appellant was convicted of rape in the first degree, sodomy in the first degree (two counts), sexual abuse in the first degree (four counts), robbery in the third degree, and unlawful imprisonment in the first degree.
• Facts: Male defendant raped female victim. Victim told her mother about the rape 12 hours later.
• Problematic Language: "introduce the victim's panties into evidence"
• Explanation of Problem: Using the word "panties" is inappropriate terminology in judicial discourse. Language constructs versions of reality, the rhetorical consequences of which may have serious implications for social justice (MacMartin and Wood, Sexual Motives and Sentencing, Journal of Language and Social Psychology, (139), pp. 139-159, (2005)). Using the term "panties" characterizes the assault as an erotic, rather than violent, act because it is a word commonly used for lingerie that is intended to be flirtatious, pleasurable and sensual. Many people would agree there is a large cultural difference between typical underwear and panties, since the latter tends to carry different, more feminine influences. In most modern cultures, panties have become a bit of a cultural icon describing sexual mischief (http://en.wikipedia.org/wiki/Panties). Describing the victim's underpants with the word "panties" implies that the victim was preparing to participate in sexual relations rather than a victim who did not consent to the crimes committed against her. This language also intimates that the victim bears some responsibility for the criminal acts by making her an affirmative actor rather than a recipient of harm (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). By describing the assault in erotic terms, the reader senses that the act involved nonharmful conduct or actions 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)) 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)). It also perpetuates the dangerous stereotype that victims are somehow responsible for the acts of violence committed against them.
• Suggested Alternatives: The court should employ the word "underwear" or "underpants" when referring to the garments worn by an adult victim.