Judicial Language Project

Problematic Language

State of Ohio v. Laboy, 2006 WL 134827 (Ohio App. 8 Dist.) (January 1, 2006)

(Case summary by Zoe Paolantonio, law student )

• Nature of the Case: Child rape and incest
• Facts: The defendant continually raped his daughter from the time she was 10 until she was about 16.
• Problematic Language: "kissing her neck and lips," "kissed the victim's neck and down her stomach," "suck his penis," "tried to have anal intercourse with the victim" and "performed oral sex [on the victim]"
• Explanation of Problem: "Critics have long observed that the strategic use of language is central to the acquisition and exercise of power. How we account for the actions of perpetrators and victims of violence has far reaching implications." (Coates and Wade, Telling it Like it Isn't: obscuring perpetrator responsibility for violent crime, pp.503, (2004)). Using the words "kissed her neck and lips" and "kissed the victim's neck and down her stomach" is inappropriate for judicial discourse because "kiss" characterizes a criminal assault as a loving and gentle act, rather than violent conduct, because we associate "kiss" with affection, love and foreplay between two consenting people. A kiss is reciprocal and in sexual or romantic kissing the sexual sensations are of primary importance.(http://en.wikipedia.org/wiki/Kiss). Criminal violence is not a consensual or affectionate act. In rape, "even though two individuals are involved, one person has not consented to the acts in question. Instead the actions are unilateral with the victim treated as an object in the perpetrator's actions." (Bavelas and Coates, Is it Sex or Assault? Erotic Versus Violent Language in Sexual Assault in Trial Judgments, pp. 31, (2001)). Using the word "kiss" eroticizes the violence against the victim by implying that the victim was involved in foreplay or preparing for sex rather than being assaulted. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). Language such as "tried to have anal intercourse" is similarly inappropriate as the term "anal intercourse" conveys the image of an erotic act and implies that the child is a participant in pleasurable conduct rather than a victim of a harm. The dictionary defines the term "intercourse" as "the act of [sexual] procreation between man and a woman." (The Merriam-Webster Dictionary 1997). The term is not descriptive of an act of violence and is especially inappropriate in this case where the victim is a child, legally incapable of participating in a sex act. The word "intercourse" should only be used "when the acts are mutually consensual .... If the same term is used to describe both consensual and nonconsensual acts, then a crucial distinction in the law has been obscured. In the law and in the complainant's experience, sexual assault is unilateral. In an assault, one person uses the body of another, who thereby losses control over the most intimate access to her body." (Bavelas and Coates, Is it Sex or Assault? Erotic Versus Violent Language in Sexual Assault in Trial Judgments, pp. 31, (2001)). Using erotic terminology and words that connote consent diminishes the responsibility of the perpetrator and the severity of the harm done to the victim. The phrase "suck his penis" is inappropriate because the word "suck" is an active verb. Thus, it implies that the person performing the action is doing so willingly. This assigns responsibility to the child victim, distances the offender from the act and obscures the offender'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)).
• Suggested Alternatives: Instead of "kissing" the court should use more appropriate language such as the defendant "forced" or "placed" his mouth upon the victim's mouth or body. Instead of saying "suck his penis" the court should say the defendant "forced his penis into the victim's mouth." Instead of "tried to have anal intercourse" the court should say, "the defendant attempted to force his penis into the victim's anus." These phrases focus on what the actor did to the victim, eliminating victim blaming language and assigning direct responsibility for the act to the defendant.