Judicial Language Project
Problematic Language
Commonwealth v. Armstrong (December 3, 2008)
(Case summary by Kathryn Schwartz, law student)
- Nature of the Case: child rape
- Problematic Language: he put his fingers inside her “private"; “oral sex”
- Explanation of Problem: The term “private” is inappropriate because it is not a gender-specific enough term to describe the body part at issue. Merriam-Webster’s dictionary defines “private” parts as “the external genital and excretory glands.” ("private parts." Merriam-Webster Online Dictionary. 2009. Merriam-Webster Online. 23 April 2009. http://www.merriam-webster.com/dictionary/private parts). It is also a term commonly used by children as a substitute for vagina and penis. Vague and juvenile terminology can disguise and minimize the harm. Consequently, such language should be avoided because it can mask both the seriousness of the crime and the true nature of the perpetrator's actions. (Coates, L. "Telling it like it isn't: obscuring perpetrator responsibility for violent crime." Discourse and Society, (502), pp. 499-526 (2004). The term “oral sex” is inappropriate because the term is understood as an erotic phrase, thus eroticizes the violence. Merriam-Webster defines “oral sex” as oral stimulation of the genitals and nowhere refers to the act as criminal, violent or harmful. (“oral sex." Merriam-Webster Online Dictionary. 2009. Merriam-Webster Online. 23 April 2009. http://www.merriam-webster.com/ dictionary/oral sex). Phrases that suggest pleasurable consensual activity are especially inappropriate when the victim is a child because a child is not capable of consenting, thus, such language fails to describe the act as a crime of violence. (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 “private,” the court should use clinical terminology and be specific about what body parts were violated to ensure the acts are seen in their proper criminal light. Instead of “oral sex”, the court should use language that describes the actions as violent. For example, “he forced his mouth on the victim's vagina.”