Judicial Language Project

Problematic Language

State v. Hernton (March 31, 2009)

(Case summary by Tori Stetson, law student)

• Nature of the Case: burglary
• Problematic Language: The court referred to the “romantic relationship between Mr. Hernton and Ms. Gardner" as "facilitat[ing] – caus[ing] – the conduct” - and that the defendant “acted under provocation”. The court also noted that "it is unlikely he will again be in such a relationship as he was with Ms. Gardner”
• Explanation of Problem: The court's repeated references to the "relationship" between the defendant and the victim effectively blame the victim for the defendant's behavior, suggesting the relationship itself somehow facilitated or was responsible for the victim's injuries.
• Suggested Alternatives: The court should have refrained entirely from alluding to the relationship between the defendant and the victim as somehow provoking the crime. One of the appellate justices, Cynthia Wescott Rice, wrote in her concurring opinion that the majority’s references to the alleged relationship were particularly inappropriate because there was, in fact, no evidence of this relationship in the court record. Justice Rice added that even if the relationship was somehow corroborated, there was no evidence whatsoever that the defendant's crimes were provoked or induced in any way, whatsoever, by the victim, or his relationship with her.