Judicial Language Project
Problematic Language
McGee v. State, Erotic Language (July 1, 2005)
(Case summary by Elizabeth Berretta, law student)
- Nature of the Case: Rape and Sexual Assault
- Facts: Perpetrator, on more than one occasion, entered the victim's home and sexually assaulted her or assaulted her outside her apartment complex.
- Problematic Language: "she encountered McGee who began kissing and hugging her…he pulled her to him. He pulled up her nightgown and began performing oral sex on her. The he pulled her against him…and attempted anal sex. He then pushed her down and engaged in vaginal sex with her.” “McGee began rubbing her and told her to lie down. He then began performing oral sex and ended engaging in vaginal sex.”
- Explanation of Problem: “kissing and hugging", "pulled her to him", "rubbing her", "engaging in sex" and "sex” are improper terms because they imply pleasure, erotic activity and mutual consent. Bavelas, Janet and Linda Coates. “Is is Sex or Assault? Erotic Versus Violent Language in Sexual Assault Trial Judgments.” Journal of Social Distress and the Homeless, Vol.10, No. 1 (2001) 31).
None of this language describes nonconsensual behavior or serious criminal violence. As a result, the language used fails to convey the harmful nature of the conduct. Bavelas, Janet and Linda Coates. “Is is Sex or Assault? Erotic Versus Violent Language in Sexual Assault Trial Judgments.” Journal of Social Distress and the Homeless, Vol.10, No. 1 (2001) 30-31).
“Perform oral sex” is particularly problematic for similar reasons. The word "perform" means "to go through or execute in the proper, customary, or established manner"; "to accomplish (any action involving skill or ability), to fulfill an obligation or requirement; accomplish something as promised or expected". The American Heritage® Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. 05 Dec. 2008.
- Suggested Alternatives: The court should have simply said “the defendant forced his penis into the victim’s vagina and/or mouth”. These terms more precisely describe the crimes, and appropriately use language that conveys the defendant’s exclusive responsibility for the crime, and describe a scene of violence rather than pleasure.