Judicial Language Project
Problematic Language
Allen v. State, 960 So.2d 489 (Miss. App. 2006) (October 3, 2006)
(Case summary by Theresa Bresnahan, law student )
- Nature of the Case: Defendant was convicted of sexual battery of his step-daughter and sentenced to 25 years in prison.
- Facts: The defendant was the step-father of the female victim, who was between 14 and 18 years old at the time of the crimes. The defendant was arrested after a 3rd party turned over to police a tape which depicted the abuse.
- Problematic Language: Use of the phrase "performing oral sex"
- Explanation of Problem: The following explanation is not intended as a substantive critique of the outcome reached by the Court. The phrase "performing oral sex" is problematic because it suggests that the victim, a child, was an active participant rather than an unwilling recipient of abuse perpetrated against her. To "perform" means "to carry out an action or pattern of behavior". (Merriam-Webster On-line Dictionary). Using active language to describe the child's role in the abuse implies that the child bears some moral responsibility for the crime. Any language that assigns a degree of responsibility to the child wrongly implies that the victim was a participant in her own harm. This language diminishes the defendant's culpability by reducing his exclusive responsibility for the behavior. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). This language also causes added harm to the child. Research has suggested that attributions of self-blame regarding child sexual abuse are related to some indicators of subsequent poor adjustment for the victim (McMillen, Curtis. "Attributions of blame and responsibility for child sexual abuse and adult adjustment." Journal of Interpersonal Violence. Vol 12 (1), 1997). It is also problematic to use the needlessly-erotic phrase "oral sex". The term "oral sex" connotes an erotic and pleasurable act, rather than a crime. Erotic terms minimize harm and imply that the abuse, while criminal, was not violent. (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)). This language also mitigates the defendant's responsibility because pleasurable activity suggests the victim enjoyed the activity and thus bears some of the blame for the defendant's behavior. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)).
- Suggested Alternatives: The court should use consistent clinical language to describe the criminal act. Instead of saying a videotape depicted the child "performing oral sex," the court should have said a videotape depicted the defendant "forcing his penis into the victim's mouth."