Judicial Language Project
Problematic Language
Davis v. State (November 11, 2009)
(Case summary by Michelle Byers, law student)
- Nature of the Case: Child sexual abuse.
- Facts: Defendant, boyfriend of the victim's aunt, touched the 11 year old victim over her underwear in her vaginal area. Defendant first denied the allegation, but then claims he was drinking and curiosity got the best of him.
- Problematic Language: "engaging in sexual contact"; "inside her panties"; "touching her private part".
- Explanation of Problem: The legal definition of “sexual contact” is defined in Ark.Code Ann. § 5-14-101(9) as a unilateral act: “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female”. Here, the court states that the defendant "engag[ed] in sexual contact" with the victim, implying that the victim consented or at least participated in some affirmative manner. The word "engaged" means "involved in activity", http://www.merriam-webster.com/ dictionary/engaged. Together with the word "with", the court conveys the idea that the child victim was an active participant in her own victimization. This not only blames the victim but also detracts from the seriousness of the assault. Any language suggesting the criminal act was mutual is harmful. Bavelas and Coates, Is it Sex or Assault? Erotic Versus Violent Language in Sexual Assault Trial Judgments, Journal of Social Distress and the Homeless (2001), 31. The court also describes how the sexual contact occurred, writing that the offender put his hand "inside her panties and he was touching her private part." This language is both vague and erotic because "private parts" is not clear and "panties" is a term that conveys a sense of sexuality. According to the pop culture dictionary Wikipedia, the term "panties" changed from being defined as "underwear" in the 1950s when women's underwear "became flashier and more colorful than traditional white cotton hygiene undergarments". Wikipedia explains further that "many people would agree there is a large cultural difference between typical underwear and panties, since the latter tends to carry different, more feminine influences". The use of terms that convey a sense of pleasure, whimsy or eroticism in narratives about sexual violence is inappropriate. Bavelas and Coates, id at 38.
- Suggested Alternatives: Instead of "engaged", the court could have said the defendant "committed an act of "criminal sexual contact" against the victim. Instead of "panties" the court should have used the word "underwear". And instead of "private parts", the court should have stated that the body part was a "vagina".