Judicial Language Project

Problematic Language

State v. Echols (September 27, 2011)

(Case summary by Rosalind Keegan, law student)

• Nature of the Case: Sexual assault, attempted murder.
• Facts: The defendant stole money from his girlfriend which resulted in a minor dispute that quickly escalated. The defendant subsequently went to his girlfriend's apartment while she was not at home. This opinion includes information that the girlfriend was out "at a club" and that her younger cousin and and boyfriend were home babysitting. The defendant forced his way into the apartment and at gunpoint sexually assaulted both the cousin and boyfriend. The defendant then kidnapped both individuals and brought them to an alley where he shot them both in the head twice. Remarkably, they both survived and were able to identify the defendant from an array of photographs.
• Problematic Language: The girlfriend "had not been home because she was at a club". The victims were “forced to perform sexual acts".
• Explanation of Problem: Including information that defendant’s girlfriend was "at a club" is problematic because it is entirely irrelevant and unrelated to matters at issue in the case. While it may have been relevant to note that the girlfriend was not home at the time of the crime, it adds nothing to the narrative to include particular information about where she was. Moreover, noting that she was at "a club" implies a certain lifestyle and suggests irresponsibility and blameworthiness. McMahon, Sarah. (2007). Understanding Community-Specific Rape Myths. 360. Affilia: Journal of Women and Social Work. New Jersey: Sage Publications. Use of the phrase “forced to perform sexual acts" is inappropriate because the term ‘perform’ suggests a voluntary act on the part of the victims, such as performance of a play, done for another’s pleasure/enjoyment. Describing the victim of a forced sexual crime as "performing" an activity places the victim in an active role, which imposes responsibility on the victim for his/her own suffering. The phrase "oral sex" is inappropriate because it is needlessly erotic and connotes an act of pleasure, not violence. Bavelas, J. & Couates, L. (2001). Is it Sex or Assault? Erotic Versus Violence Language in Sexual Assault Trial Judgments. 29-40. Journal of Social Distress and the Homeless. New York: Human Science Press.
• Suggested Alternatives: Rather than including information about where the girlfriend was on the night in question, the opinion could have said that she was "not at home". Instead of "perform oral sex", the court could have said the defendant forced the victims to rape/penetrate each other and that the defendant orally/anally raped the victims and forced his penis into the victim's mouth.