Judicial Language Project

Problematic Language

Cruz v. State, 2006 WL 2987555 (Tex.App.-El Paso) (October 19, 2006)

(Case summary by Jessica Babine, law student )

• Nature of the Case: Sexual assault on a minor.
• Facts: Three year old female child is assaulted by her grandfather.
• Problematic Language: "fondling," "engages in sexual contact with the child" "had put his hands in her panties," "touched her vaginal and anal area," "engaged in sexual contact by touching genitals with his hands"
• Explanation of Problem: The language "fondled " is inappropriate because the word "fondled" means "to handle tenderly, lovingly, or lingeringly." (Merriam Websters Online Dictionary http://www.m-w.com/dictionary/fondled). Using such terminology to describe acts of violence is inappropriate because it creates a scene of relatively harmless, rather than criminal, behavior. This, in turn, can erroneously imply consent because a person would be less inclined to object to pleasurable conduct than criminal conduct and while a child cannot consent, the image is nevertheless conveyed that the child was not being harmed. (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)). By implying that violence is not harmful, the defendant's culpability is mitigated which obscures the violent nature of the crime. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). Describing the acts in terms ordinarily used for pleasurable and affectionate acts (and avoiding descriptions of the violence) makes it harder for the reader of this language to conceptualize the conduct as unwanted, much less criminal, harm. This language also implies a shared responsibility between the criminal and the victim. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). Similarly, the use of the verb "engaging" conveys a sense of equal participation from both parties, rather than an act of violence caused exclusively by the criminal. Merriam-Webster Online Dictionary defines "engage" as "to induce to participate or take part." (http://www.m-w.com/dictionary/engaging) To imply that the child was an active participant in the assault, rather than an unwilling receiver of the violent acts of another, assigns responsibility to the child and distances the defendant from the act. This obscures the defendant's culpability. (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. As a result, the responsibility of the adult perpetrator is diminished. Research has suggested that self-blame regarding child sexual abuse is 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). Lastly, the use of "had put his hands in her panties" is vague as to what the perpetrator actually did to the child and connotes an unclear sexual scene which diminishes from the violent and criminal nature of the assault. Rape is not a sexual act, but a violent one, often based on power and control. By describing the assault in vague sexual terms, the reader senses that the act involved nonharmful conduct. ( 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))
• Suggested Alternatives: Rather than "fondled", the court should precisely describe what the defendant did. For example: "the perpetrator forcibly put his hand (or fingers) on (or in) the victim's vagina." By using clear and 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 the term "engages in sexual contact" the court should clarify that the defendant, alone, is the only actor responsible for the conduct. For example, the court could write: "the defendant forced his penis into the child's mouth". Instead of language that implies underlying themes of eroticism and sensuality, the court should keep the explanation as clinical as possible. For example, "the defendant forced/put his hand into/onto the child's vagina under her clothing."