Judicial Language Project
People v Thompson, 2009 WL 3086499 (September 29, 2009)
(Case summary by Elizabeth Stapleton, law student)
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- Nature of the Case: Required registration of sex offenders
- Problematic Language: “A mutually voluntary act of sodomy with a 17 year old minor”
- Explanation of Problem: The following explanation is not intended as a substantive critique of the outcome reached by the Court.
The phrase "mutually voluntary" is inappropriate in describing the role of a minor victimized by the criminal act of an adult. "Voluntary" is defined as an act done “under conscious control of the brain. . . acting under one's own free will.” By saying the sexual assault was "voluntary" the court implies that the victim could and did legally consent. But because the victim was a minor, the sexual assault could have been voluntary because “[c]hildren cannot legally give consent to sexual activities with adults.” Sas et al 1996, (Un)Reasonable Doubt? The Invocation of Children’s Consent In Sexual Abuse Trial Judgments, Discourse and Society, 2002. The word "mutually" exacerbates the problem by suggesting the victim and offender stood on equal moral and legal ground, which is obviously not true when the victim is a minor.
However, it is important to note that a concurring judge recognized this problem and wrote another opinion about how the use of the word "voluntary" troubled him. As such this concurring opinion is a great example of the way judges can encourage each other to be mindful of the power of language in judicial decisions.
- Suggested Alternatives: Instead of "mutually voluntary", the court could say "the defendant unlawfully penetrated the victim's anus."