Judicial Language Project

Problematic Language

People v. Curtis, 2006 WL 3077067 (Cal.App. 3 Dist.) (October 31, 2006)

(Case summary by katie Meyer, law student )

• Nature of the Case: At trial, the defendant was classified as a sexually violent predator based on the evaluation of two psychiatrists and his past conviction for sexually violent offenses. The defendant appealed the classification and his commitment was affirmed.
• Facts: The defendant is an adult male and the victims were a six-year-old boy and a three-year-old boy. The defendant was accused and convicted of sexually abusing each victim on one occasion.
• Problematic Language: "...defendant touched him first through his clothes, then inside his clothes, then touched his penis with a stroking motion." "...orally copulated him." "...accompany him." "...accompany him to hotel bathroom, where he pulled down the boy's trousers and underwear, orally copulated him."
• Explanation of Problem: The language "...touched his penis with a stroking motion" uses gentle and needlessly erotic words to describe criminal abuse. The word "stroke" means "to pass the hand over gently in kindness or tenderness" Webster's 3rd New International Dictionary, p. 2265. By describing the assault in gentle and sexual terms, the reader senses that the act involved nonharmful conduct or actions that the victim might have enjoyed because sexual as opposed to criminal activities are 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 language "...orally copulated him." is also needlessly erotic. The word "copulate" means "to unite in sexual intercourse: engage in coitus" Webster's 3rd New International Dictionary p. 503. Describing the acts in terms ordinarily used for describing pleasurable activities and avoiding descriptions of the violence makes it difficult for the reader to conceptualize the conduct as unwanted, much less criminal, harm. (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 use of the verb "...accompany him." to describe the victim's actions when being taken to the hotel bathroom by the perpetrator conveys a sense of willing participation by the child. Merriam-Webster defines "accompany" as "to go with as an associate or companion." This diminishes the defendant's violent and coercive behavior and obscures the defendant's culpability by assigning some degree of responsibility to the victim. (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: Instead of "... touched his penis with a stroking motion" the court could say "...defendant had forcible manual contact with the child's penis." Instead of "...orally copulated him." the court could say "...forced the child's penis into his mouth." Instead of "...accompany him to hotel bathroom." the court could say "...the defendant carried or brought the child into a hotel bathroom."