Judicial Language Project
Problematic Language
Terry v. State (November 13, 2008)
(Case summary by Kathryn Schwartz, law student)
- Nature of the Case: child sexual abuse
- Problematic Language: “engaged in sexual intercourse”
- Explanation of Problem: The term “engaging” is inappropriate because it suggests that the victim was an active participant in the sexual violence perpetrated against her. Merriam-Webster defines "engage" as "to induce to participate or take part." (Merriam-Webster Online Dictionary http://www.m-w.com/dictionary/engage, November 10, 2006). By using a verb that portrays the victim as being an active part of the offense, the severity of the violence is diminished and the Defendant's exclusive legal responsibility is mitigated. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529, (2001)). This can inflict additional harm on the victim by implying some degree of blame. (McMillen, Curtis. "Attributions of blame and responsibility for child sexual abuse and adult adjustment." Journal of Interpersonal Violence. Vol 12 (1), 1997). The term “sexual intercourse” is also inappropriate because this phrase is defined as “heterosexual intercourse involving penetration of the vagina by the penis.” ("sexual intercourse." Merriam-Webster Online Dictionary. 2009. Merriam-Webster Online. 23 April 2009. http://www.merriam-webster.com/ dictionary/sexual intercourse). As a child cannot lawfully participate in consensual sexual activity, use of such terminology necessarily diminishes the criminal nature of the incident. Likewise, the definition nowhere connotes the idea that "intercourse" involves harm, much less criminal violence. Because "sex" and "rape" are mutually exclusive terms, courts describing criminal activity should avoid all references to erotic, noncriminal 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: Instead of “engaging in sexual intercourse,” the court could have said “The defendant forced his penis into her vagina.”