Judicial Language Project

Problematic Language

Barahona v. State of Texas, 2004 Tex. App. LEXIS 9441 (January 1, 2004)

(Case summary by Deirdre Hall, law student )

• Nature of the Case: Child Sexual Abuse
• Facts: The victim in this case was seven years old; the defendant was her great-uncle.
• Problematic Language: Use of the phrase "performs oral sex."
• Explanation of Problem: The use of the phrase "performs oral sex" in this case implies that the child victim, by "performing", is a willing and consenting participant in the act. Instead of focusing on what the defendant did, the language focuses on what the child did, and makes the child an affirmative actor - rather than a receiver of harm. The language also implies, falsely, that a child has the emotional and legal capacity to participate in a sex act with an adult. By using language that assigns responsibility to the child the defendant is distanced from the act and the act is perceived as less harmful because responsibility for the behavior is shared between the criminal and the victim. (Bohner, G. "Writing About Rape," British Journal of Social Psychology, (40), pp. 515-529 (2001)). The practice of using "victim blaming language" perpetuates the negative stereotype that victims are somehow responsible for the acts of sexual violence perpetrated against them.
• Suggested Alternatives: Instead of "performs oral sex", a more appropriate description of the act would state that the defendant "forced his penis into the child's mouth." This statement focuses on what the actor did to the victim, eliminating victim responsibility, assigning direct responsibility for the act to the defendant.