Judicial Language Project

Problematic Language

Castleschouldt v. State (April 9, 2009)

(Case summary by Elizabeth Berretta, law student)

• Nature of the Case: child sexual abuse and child pornography
• Problematic Language: “…defendant paid the victim, a child younger than 18 (she was 13 years old), to allow him to photograph her; that he dressed her in lingerie and lace panties; that he took photographs of her that focused on her bare breast and close up pictures of her genitalia; and that defendant told a detective that he kept the photographs for his own ‘use’.” “…photographs depict A.A. in short dresses, lingerie, panties, and high-heel shoes, posing on appellant’s desk and bed.” “…photograph of A.A. lying on a bed in the master bedroom wearing satin lingerie and…exposing one breast.” “…photograph of A.A. in a red negligee and…sitting in the master bedroom, and ‘exposing her genitalia with no underwear.’”
• Explanation of Problem: The court's language reads like an erotic adult novel, not criminal violence, thus conveying a sense that the acts are pleasurable rather than harmful. Such language is inappropriate because erotic novels intentionally focus on the sex act for the purpose of causing enjoyable stimulation. Marble, Anne M. "Getting to Know the Erotic Romance Field". Writing-World.Com. (January 2005). A court should use language that conveys information without erotic effect. The sexually explicit language used is also inappropriate because it is in the passive voice, which fails to describe the defendant as the actor. “Photograph depicts” or “photographs of” do not tell the reader the victim was forced to pose, or that she/he was an unwilling participant in the event. Bohner, Gerd. “Writing about rape: Use of passive voice and other distancing text features as an expression of perceived responsibility of the victim.” British Journal of Social Psychology. (2001, 40, 515-529). Both examples of problematic language actively direct the reader away from understanding the crime as a serious act of criminal violence. Bavelas, Janet and Coates, Linda. “Is it Sexual Assault? Erotic Versus Violent Language in Sexual Assault Trial Judgments.” Journal of Social Distress and the Homeless (Vol. 10, No. 1, 2001).
• Suggested Alternatives: Instead of describing the photographs in erotic detail, the court could have provided a more generalized description of the image as depicting the victim's genitals in a sexual or inappropriate manner. Instead of describing the photograph as “depicting” or “of” the victim, the opinion could have said "the perpetrator forced the victim to wear, pose, or stand" in a particular manner.