Judicial Language Project

Problematic Language

People v. Smith 2009 WL 4643147 (Cal.App. 2 Dist.,2009) (July 1, 2005)

(Case summary by Kristen Colburn, law student)

• Nature of the Case: Child molestation and rape by caretaker
• Facts: The defendant lived in the victim's home while her mother worked and sexually abused the victim from the age of 11 until 16.
• Problematic Language: "sexual intercourse" and "oral copulation"
• Explanation of Problem: "Intercourse" is defined as "penetration of the vagina by the penis". http://www. merriam-webster.com/medical/sexual%20intercourse. "Oral copulation" is defined as "stimulation of the genitalia by the use of the mouth, tongue, teeth or throat." wikipedia.org/wiki/Oral_copulation. Neither term conveys an act of criminal violence or even that the conduct was not consensual. To the contrary, these terms are words the describe pleasurable activity. Criminal sexual conduct should be described using language of violence to avoid implying that the actions were not harmful. 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: Instead of "sexual intercourse" and "oral copulation" the court should say the defendant forced his penis into the victim's vagina and/or mouth.