Judicial Language Project

Problematic Language

People v. Hubbs, 2005 WL 2503872 (Cal.App. 4 Dist.) (October 11, 2005)

(Case summary by Kareen Bar-Akiva, law student )

• Nature of the Case: Child Sexual Abuse; 33-year old male offender and five victims, all boys under the age of 13
• Facts: This case is an appeal from the court's finding in favor of the San Bernardino County District Attorney that the incarcerated defendant is a sexually violent predator and was likely to engage in criminal behavior and commit further sexual offenses against children under the age of 13 upon his release from prison. The court ordered defendant committed to the Department of Mental Health at Atascardo State Hospital for two years.
• Problematic Language: The phrase "engaging in oral copulation" and the term "molestation"
• Explanation of Problem: The use of the verb "engaging" conveys a sense of participation from both parties, rather than the existence of a nonconsensual act of violence towards a child. Merriam-Webster defines "engage" as "to induce to participate or take part." To imply that the child was an active participant in the assault, rather than an unwilling receiver of the violent acts of another, assigns responsibility to the child and distances the defendant from the act. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529, (2001)). It also perpetuates the dangerous stereotype that victims are somehow responsible for the acts of violence committed against them. The term "oral copulation" creates a sexual scene rather than one of assault. "Copulation" is "to engage in sexual intercourse", thus is a sensual term that suggests erotic, rather than criminal, behavior. As a result, the term connotes joint or willing participation in sexual intercourse. Using sexual or erotic terms to describe the defendant's actions suggests that the act involved nonharmful conduct or actions that the victim might have enjoyed because sexual activity, as opposed to criminal activity, is generally mutually consensual. (Bavaelas, Janet and Coates, Linda, "Is it Sex or Assault: Erotic Versus Violent Language in Sexual Assault Trial Judgment," Journal of Social Distress and the Homeless, (10), pp. 29-40 (Nov. 2001)). Erotic Terminology in general perpetuates the myth of victim responsibility by implying that the action was not unwanted. The term "molestation" is problematic because it is extremely vague. "Molest" is defined as "to make annoying sexual advances; especially: to force physical and usually sexual contact on." Employing a word with such a broad definition mitigates the moral culpability assigned to the defendant because it encompasses a wide range of meaning; anything from patting the child's buttocks to penetration of the anus. It is important to be accurate when describing the nature of the abuse in order to avoid falsely implying that the defendant's behavior was relatively minor misconduct.
• Suggested Alternatives: Instead of "engaging in oral copulation", the court should implement a more appropriate phraseology, such as "the defendant put his penis into the child's mouth" or "the defendant forced the child's penis into his mouth." Instead of "molestation", the court should use more precise terms to portray the specific nature of the defendant's illegal behavior. If the case involved penetration, the court should say so. If there was no penetration, the court should specify what sort of illegal sexual contact occurred such as "the defendant touched the victim's penis with his hand" or "the defendant forced the victim with to touch his penis."