Judicial Language Project

Problematic Language

Castillo v. Government of V.I., 2006 WL 2993017 (D.Virgin Islands) (September 25, 2006)

(Case summary by Alyssa Knutson, law student )

• Nature of the Case: Repeated sexual assault of a 12 year old mentally handicapped female child by her adult male caretaker.
• Facts: The 12 year old victim, E.C., lived with defendant and his wife. E.C. was mentally retarded and placed in a specialized individual education, with defendant as her primary caregiver. When E.C.'s uncle arrived at the home one evening, E.C. ran out and begged for him to take her. She told him about the sexual abuse and that it happened everyday after school. E.C. repeated those assertions to social workers and to her teacher. The government charged defendant with four counts of aggravated rape/an act of domestic violence; four counts of unlawful sexual contact/domestic intercourse and sexual contact with a minor; and one count of child neglect for knowingly, recklessly or negligently causing physical and/or emotional injury to a child in his care.
• Problematic Language: The problematic language includes the phrases "appellant was having sex, and engaging in sexual contact, with her," "insertion of a finger into her vagina," "the insertion of the penis," "fondling," "requiring her to fondle," and "engaged in sexual intercourse."
• Explanation of Problem: The language "fondled" and "fondling" is inappropriate because the word "fondle" means "to handle tenderly, lovingly, or lingeringly." (Merriam Websters Online Dictionary http://www.m-w.com/dictionary/fondled). This terminology falsely depicts a scene that is sexual or erotic in nature, rather than one of criminal assault. Such terms fail to distinguish between sexual activity that can only take place between two consenting adults and the act of forcing oneself on a minor, which is always criminal. Using such language to describe criminal acts creates an inappropriate impression of harmless or playful behavior. (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)). Such language also makes it harder for the reader to conceptualize the conduct as unwanted, thus, the defendant's culpability is mitigated. (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 verb "engaging" and the phrase "was having sex with her" imply that the victim is affirmatively involved in the act and is at least partly to blame as it conceals the fact that violent behavior is unilateral and solely the responsibility of the offender. (Coates, Linda and Allan Wade. "Telling it like it isn't: obscuring perpetrator responsibility for violent crime," Discourse & Society, 2004 Vol. 15(5): 499-526). Merriam-Webster Online Dictionary defines "engage" as "to induce to participate or take part." (http://www.m-w.com/dictionary/engaging). Only when both individuals are capable of agreeing to participate in sexual activity can they engage in intercourse. A child always lacks the capacity to consent and should never be portrayed as an active participant in criminal abuse. The action of criminal penetration should be described as a forced act of violence. (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)). Implying 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 the act. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529, (2001)). This is problematic because it shifts the focus onto the victim and away from the defendant, mitigating his culpability. It also perpetuates the dangerous stereotype that victims are somehow responsible for the acts of violence committed against them. As a result, the responsibility of the adult perpetrator is diminished which causes added harm to the child. (McMillen, Curtis. "Attributions of blame and responsibility for child sexual abuse and adult adjustment." Journal of Interpersonal Violence. Vol 12 (1), 1997). Lastly, the phrase "insertion of a finger into her vagina, the insertion of the penis. . ." is problematic because it lacks the correct pronouns to connect the defendant to his actions. Instead, the vague terminology does not clearly attribute the criminal acts to the defendant, thus making it more difficult to assign legal and moral blame. The use of an impersonal noun in writing about instances of rape is important because it removes the linguistic representation of "who was the agent of the action and who was the object." (Phildelphoff-Puren, Nina. "The Right Language for Rape." Hecate (May 2003). By employing the agentless grammatical construction "insertion," the defendant is removed from the act and no longer connected to the wrongful conduct. (Coates, Linda and Allan Wade. "Telling it like it isn't: obscuring perpetrator responsibility for violent crime," Discourse & Society, 2004 Vol. 15(5): 499-526). As a result, the defendant's responsibility for his actions is diminished because he is removed from the scene of the crime.
• Suggested Alternatives: Rather than "fondled", the court should describe precisely what the defendant did in more clinical terms. For example: "the perpetrator forcibly put his hand on the victim's vagina." 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). Instead of using "engages in sexual contact," "engaged in sexual intercourse," or "having sex" the court should clarify that the defendant, alone, is the only actor taking part in the criminal conduct. For example, "the defendant forced his penis into the child's mouth". Instead of language that implies underlying themes of eroticism and sensuality, the court should keep the explanation as clinical as possible. For example, "the defendant forced/put his hand into/onto the child's vagina under her clothing." Rather than using the phrase "insertion of a finger into her vagina, the insertion of the penis," it would be more accurate to say, "the defendant penetrated the victim's vagina with his penis and finger" or simply "the defendant committed penile-vaginal penetration or rape." The active verbs "penetrated" or "committed" clarify for the reader the nature of the harm and assign responsibility to the defendant for his actions.