Judicial Language Project

Problematic Language

State v. Berakech, 2007 WL 241795 (Wash. App. Div. 3) (January 30, 2007)

(Case summary by Alyssa Knutson, law student )

• Nature of the Case: Defendant, the step-father of the female victim, was convicted of two counts of first degree rape and one count of first degree child molestation of a child at ages six, seven, and nine years old.
• Facts: Victim's mother found a letter written by the victim that sexual abuse was perpetrated by Defendant and contacted the police. Defendant was charged with two counts of first degree rape of a child and one count of first degree child molestation. At trial, victim testified that Defendant had sexually abused her between the ages of six and seven years old and that he raped her when she was about nine years old.
• Problematic Language: The phrases "kissing and fondling [victim]'s breasts and sexual organs," "engaged in anal and vaginal intercourse with her," and "sexual intercourse."
• Explanation of Problem: The verbs "kiss" and "fondle" are inappropriate when describing a sexual assault because they falsely characterize the perpetrator's behavior as affectionate or erotic, rather than unwanted sexual violence. The word kiss is defined as "to touch with the lips especially as a mark of affection or greeting." Merriam Websters Online Dictionary http://www.m-w.com/dictionary/kiss). Similarly, 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 affectionate or erotic in nature, rather than one of assault. The use of such terms fails to distinguish between sexual activity that takes place between two consenting adults and the act of forcing oneself on a minor, which is always criminal because a minor is unable to consent. Using such language to describe forceful acts inappropriately creates an 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)). Describing the acts in language used for affectionate or pleasurable behavior gives the impression that the victim may have enjoyed the behavior as sexual activity, and makes it more difficult for the reader to conceptualize the conduct as unwanted, forceful conduct. As a result, the defendant's culpability is mitigated 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 term "breast" is inappropriate because it implies that the victim is a fully developed female rather than a nine year old child. The definition of the word "breast" is "either of the pair of mammary glands extending from the front of the chest in pubescent and adult human females and some other mammals." (Merriam Websters Online Dictionary http://www.m-w.com/dictionary/breast). Language that implies that children are sexually mature vitiates the focus on the defendant's violent and coercive behavior and obscures the defendant's culpability. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). Similarly, characterizing the perpetrator as having had "sexual," "anal," or "oral" intercourse with the victim 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 Websters Online Dictionary http://www.m-w.com/dictionary/intercourse). The court's use of the verb "engage" implies that the victim is at least partly to blame because it inevitably 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 the abuse. When one person puts a body part inside the body of the other without consent, then the action should be described as an act of forced penetration. (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 crime, 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, while also perpetuating the dangerous stereotype that victims are somehow responsible for the acts of violence committed against them. Diminished responsibility for the perpetrator 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).
• Suggested Alternatives: In the future, the court should use more clinical terms in describing criminal abuse and use phrases that do not suggest that the victim consented to, enjoyed or was not harmed by the criminal conduct. Additionally, the court should clarify that the defendant, alone, is the only actor taking part in the conduct. For example, instead of "engaged in anal and vaginal intercourse with her," the court could say, "the defendant forced his penis into the victim's anus and vagina." Instead of "sexual intercourse," the court should have said "the perpetrator put/placed/forced his penis into the victim's vagina." Instead of saying that the perpetrator was "kissing and fondling [victim]'s breasts and sexual organs," the court should have said "the perpetrator put/placed/forced his mouth on the victim's mouth and child's chest/undeveloped breast" and "he forcibly put his hand on the victim's vagina." 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. 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).