Judicial Language Project

Problematic Language

People v. Crisante (July 1, 2005)

(Case summary by Alexandra Seibert, law student)

• Nature of the Case: Sexual misconduct with a minor
• Problematic Language: "[Defendant] kissed [victim]", "fondling", "[Defendant] was touching the [victim]", "[Defendant] touched [8-year-old victim's] breasts"
• Explanation of Problem: The word “kiss” is an expression of affection or love. Webster’s Third New International Dictionary 1246 (Philip Babcock Gove, Ph.D. ed., 3rd ed., Merriam-Webster Inc 1986). As such, it should not be used to describe criminal behavior. The word “fondled”, similarly, is defined as a loving or affectionate touch. Webster’s Third New International Dictionary 883 (Philip Babcock Gove, Ph.D. ed., 3rd ed., Merriam-Webster Inc 1986). As such, it should not be used to describe criminal behavior. Such words are inappropriate because sexual violence against a child should not be characterized as pleasurable. Clare MacMartin, (Un) Reasonable Doubt? The Invocation of Children’s Consent in Sexual Abuse Trial Judgments, 13 (1) Discourse & Society 9, 14 (2002), www.sagepublications.com. The word “touching” is problematic because it is an ambiguous term. Touching is defined as, “The act or fact of touching, feeling, striking lightly or coming into contact with.” Webster’s Third New International Dictionary 2416 (Philip Babcock Gove, Ph.D. ed., 3rd ed., Merriam-Webster Inc 1986). By using ambiguous terminology the court creates a lack of clarity regarding the inappropriate behavior. Moreover, "touching" is nowhere defined as harmful or violent, and thus is inappropriate in this decision because it is used to describe serious criminal sexual behavior. The word “breast” is a term used to describe a biological organ of a woman. “Breasts” are defined as “…milk-producing glandular organs situated on the front the chest of the human female, and is normally functional only during the period following pregnancy”. Webster’s Third New International Dictionary 273 (Philip Babcock Gove, Ph.D. ed., 3rd ed., Merriam-Webster Inc 1986). A “woman” is defined as an adult female human being. Webster’s Third New International Dictionary 2629 (Philip Babcock Gove, Ph.D. ed., 3rd ed., Merriam-Webster Inc 1986). A child should not be described as having breasts because such terminology should only be used to describe an adult female. By using the term breast, the reader may passively perceive the inappropriate behavior as occurring to an adult who is able to consent to such conduct even though children are incapable of consenting as a matter of law. Clare MacMartin, (Un) Reasonable Doubt? The Invocation of Children’s Consent in Sexual Abuse Trial Judgments, 13 (1) Discourse & Society 9, 14 (2002), www.sagepublications.com. Words can influence a reader in a subliminal way, allowing a reader to create a mental impression of an act that is less serious than the crime that actually occurred. The effect of such misleading narratives on society can be harmful. Judith D. Fischer, Framing Gender: Federal Appellate Judges’ Choices About Gender-Neutral Language, 19, (2008).
• Suggested Alternatives: Instead of “kiss”, the Court could have said the defendant "forced his mouth on the victim’s mouth. Instead of “fondling”, the Court could have said that the defendant “forced his finger on/into the victim’s breast/vagina”. Instead of “touching”, the court could have stated that the defendant forced his hand on the victim's vagina/labia/crotch area". Instead of “breasts”, the court could have stated that the defendant “used his hands to feel the child’s nipples and chest area”.