Judicial Language Project
Problematic Language
State v. Ison, 2008 WL 588758 (Ohio App. 5 Dist.) (March 4, 2008)
(Case summary by Synda Mahan, law student )
- Nature of the Case: Child Sexual Abuse
- Facts: The victim was between ages 7 and 11 when she was sexually abused by her stepfather.
- Problematic Language: PROBLEMATIC LANGUAGE: "appellant asking the victim to sit on his face while she was nude." APPROPRIATE LANGUAGE: "penetrated her vagina with his penis," and "rubbing her vaginal area all over his body, including his penis."
- Explanation of Problem: Most of the language in this opinion properly depicts sexual abuse of a child by an adult. In one section of the opinion, however, the court refers to the "appellant asking the victim to sit on his face while she was nude. He then rubbed his tongue over her vaginal area.” The use of the word ‘ask’ is inappropriate because ‘ask’ means “to call or for an answer” or “to make a request of.” (http://www.merriam-webster.com/dictionary/ask). Saying that the appellant was "asking" something of the child implies that the victim had a choice, and that she could have said no. Since the child did not say no, a reader could at least passively infer that the child chose to participate; a legal impossibility because a child cannot consent. The idea that the child was "asked" to participate suggests that whatever occurred, it was less serious than 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)).
- Suggested Alternatives: Rather than the word “ask”, the court could have continued its clinical descriptive technique by using a phrase such as: “Appellant forced the child's genitals on his face and mouth." By using clinical language, the acts are seen in their proper criminal light rather than in erotic or relatively harmless terms that imply desired involvement by the child. (“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)).