Judicial Language Project

Problematic Language

Driver v. Com, 2007 WL 491602 (Ky.App.) (February 16, 2007)

(Case summary by Adisty Wilson, law student )

• Nature of the Case: Defendant was charged with one count of first degree sodomy and two counts of first degree sexual abuse.
• Facts: Defendant is an adult male; victim is his six year old foster child.
• Problematic Language: "fondling and receiving oral sex from his six year old foster child"
• Explanation of Problem: The language "fondling" is inappropriate because the word "fondled" means "to handle tenderly, lovingly, or lingeringly" (Merriam-Webster Online Dictionary). Such language conveys an image of nonharmful noncriminal conduct or action that the victim might have enjoyed because "tender" sexual activity, as opposed to criminal activity, is generally enjoyable. (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 phrase "receiving oral sex" is inappropriate because it implies that the child victim was an active provider of erotic activity and that the defendant was a passive recipient of the child's conduct. By using a phrase that implies the child was an affirmative actor, the court suggests that the victim was somehow responsible for the abuse. This distances the defendant from responsibility for his criminal actions and not only makes the defendant's violent actions seem less harmful, it shifts the focus away from the perpetrator and causes the child additional harm by implicitly blaming the victim for the crime. (McMillen, Curtis. "Attributions of blame and responsibility for child sexual abuse and adult adjustment." Journal of Interpersonal Violence. Vol 12 (1), 1997). The phrase "oral sex" is inappropriate because it is a highly erotic term, associated with an idea of consensual sex and pleasure, not abuse. The defendant's abuse of a child is always a violent act. (Bavelas, J. and Coates, L. "Is it Sex or Sexual Assault? Erotic Language Versus Violent Language in Sexual Assault Trial Judgments," Journal of Social Distress and the Homeless, (12)(1), pp. 29-39, 2001).
• Suggested Alternatives: Rather than "fondled", the court should state: "the perpetrator forcibly touched the victim's vagina." The court should also clarify whether this contact included penetration of the labia and/or the vagina as this would constitute a more serious offense that a nonpenetration contact. 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 "receiving oral sex" the court should say that "the defendant put his penis into the child's mouth" or "the defendant forced the child's penis into his mouth."