Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dear colleagues;

Ten years ago, I developed the "Judicial Language Project;" - a first of its kind project under my school's Center for Law and Social Responsibility where we use socio-linguistic research to critique the language used in law and society to describe violence against women and children. I lecture all over the country on this issue and have taught it as part of the faculty at the prestigious Poynter Institute to help journalists more critically assess their choice of words and phrases when reporting on violence against women and children.

In connection with this program, we have assessed words like "complainant," "accuser," "victim," etc., and some of our critiques have been led to the adoption of policy changes at appellate courts such that, for example, they no longer use the highly offensive phrase "the child performed oral sex" to describe the rape of a child's mouth.

Where words are terms of art, it is helpful not only to use them but to explain why the words are being used and to provide a federal legal source for the definition, though some words - even if established - are harmful either because of the dictionary, legal or cultural definition or connotation.

Thus, where possible, it is important not to use words that carry unfair connotations such as "complainant," "accuser," "petitioner" or "prosecutrix."  The victim is not the accuser - the school IS (just as the prosecution is the "accuser" in a criminal case) when it chooses to provide redress for ANY student's report of ANY form of civil rights harm.  "Petitioner" is a very specific term of art that describes the filing of a legal document defined as a "petition" (as opposed to a "motion" - or an "appeal"). Thus, unless your school calls ALL civil rights proceedings "petitions" the word "petitioner" is unfair to the victim not only because it lacks meaning but also because it connotes the idea that the victim bears the burden of proof.  This is not true for any civil rights harm.  While there needs to be a certain amount of proof - (51%/mere "preponderance') it is NOT the victim's burden.  Best to refer to the burden as a more abstract requirement of the SCHOOL than to frame it as the duty of a student in her individual capacity.  A school disciplinary proceeding is neither a criminal case nor a personal civil suit.  It is an action taken BY the school on behalf of the public interest in educational equality for all students.  To that end, the victim's role must be seen as more passive on issues of proof because, for example, if school officials have knowledge of an offender student's past history of sexual violence or other forms of discrimination "based on sex," this information must be considered relevant in any individual case redressing a report of sexual assault, but because the individual victim would likely have no access to the offender's past similar behavior, she would have no way to add this evidence to the pile of proof.  This is an example of why the language used to describe the role of the victim must not convey the idea that SHE bears the burden of proof.  It isn't her responsibility to perform tasks mandated by federal law to be performed by SCHOOLS.

Other words to be mindful of include needlessly erotic terms such as "fondle," "sexual intercourse," "oral sex," "blow job," etc., as these are necessarily terms of pleasure.  It is far more appropriate to use neutral terms that describe body parts more clinically such as "penis into the vagina" or "penis into the mouth."

Blaming and judgmental language should also be avoided - as should passive voice ("she was raped" should be "he raped her") and personal irrelevancies (type of underwear) and past acts such as past lawful sexual activity and past drug or alcohol use.  In general, the only past acts that elucidate truth are past acts of similar discrimination because Title IX (like all Civil Rights laws) is interested in patterns of harm in addition to individual acts that rise to the level of "severe or pervasive."  "Pervasiveness" renders per se relevant all past similar harmful acts of the harmdoer.  No corollary need or right exists on the part of the offending student to offer past non-harmful acts of the victim.

As for questions regarding appeals, recording investigations and objecting to board members, OCR expects schools to treat violence and harassment "based on sex" the same way (procedurally) it treats violence "based on race, ethnicity or religion."  Thus, the answer to ANY question about policies and procedures can be answered by referring to the school's policies on harassment of students based on other protected class categories.

Wendy Murphy

New England Law|Boston

617-422-7410