Impact of Colonial and Patriarchal Language from the Legal System
The Language of Two Worlds
Legal terminology and problematic legal language are one way in which the legal system re-traumatizes survivors. The language used in court can perpetuate victim-blaming, causing survivors to feel shame and doubt in addition to silencing them. Legal language also affects the perception of accountability for the perpetrator and wrongfully minimizes the harm that is done to the survivor (or victim), further protecting the perpetrator and undermining the credibility of the survivor.
The language used to describe acts of gendered and racialized violence, survivors (most often women and girls) and the perpetrators of violence can perpetuate gender stereotypes and inequities. Legal language reflects a masculine language style, which is often very direct and outcome-focused. The legal system, constructed over time by those in power (in Canada: Caucasian, straight, cis men) is often confused as the absolute truth. 1 Certain legal concepts (e.g. “Honest Mistaken Belief”) may serve to entrench rape myths and other gender stereotypes in legal reasoning. Canadian courts have largely not addressed language and concepts that disadvantage women complainants.
Distancing the perpetrators actions from their intent
“There was violence”
vs.
“The perpetrator held the defendant down with intent to harm”
Judge’s language removing accountability from perpetrator
“The perpetrator had a mistaken belief there was consent for sexual activity”
Failing to include the survivors’ actions and responses in self defense
“The perpetrator chased the defendant and pushed them down”
vs.
“The defendant attempted to leave the room. The perpetrator followed her and grabbed her arm. The defendant struggled and was overpowered.”
Using intimate language that conflates violent acts with intimate or loving actions, thus inferring that the assault is somehow mutual
“He kissed her”
vs.
“He forcibly put his lips on her mouth”
The masculine genderlect prevails in court and can contribute to women witnesses and complainants being perceived as being less credible. Women are often disadvantaged when their speech styles are judged against men’s “combative” genderlect – men’s speech styles are often perceived to be the norm. 1
To advocate for the survivors of gender-based violence and systemic legal reform, the material from the Analysis to Action on Gender-Based Violence Project (including this website), both needs to cater to the Canadian legal system, while also be accessible to survivors of gender-based violence. For this reason, this website uses the term “survivor” to describe those who experience gender-based violence where possible, rather than “victim.”
REFERENCES
- Easteal, P., Bartels, L., & Bradford, S. (2012). Language, gender, and ‘reality’: Violence against women. International Journal of Law, Crime and Justice 40, 324-337.
Complainant, Victim, Survivor – Why these Terms Matter
The legal system uses the words “accused,” “defendant,” “complainant” and “victim” to describe perpetrators and survivors of gender-based violence. Justice workers and partners in the legal sector adhere strongly to this language. We acknowledge the words currently used reflect a system that is historically patriarchal and colonial in nature. The Canadian Charter of Right and Freedoms reflects the protection of legal rights that individuals have; however, it must also be acknowledged that the language and terminology used in court is not neutral in the way that it describes the violence that is taking place.
“Victims” refers to individuals who have been harmed, injured or killed as a result of a crime, accident or other action, or to individuals whose rights have been abused or violated. This is the terminology used in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power1 and is also used in the Canadian legal system. Women’s advocates tend to use the term “survivor” instead of “victim” as a way of reflecting the agency, resilience and courage of women and girls subjected to violence; this is due to the term “victim” carrying a connotation of implied passivity and acceptance of the violence.2 However, sometimes both terms are seen as appropriate: “survivor” celebrates the individual, but “victim” recognizes the enormity of the system of gender-based discrimination that women and girls face.3
Current legal language protects the perpetrators by minimizing or making gender-based violence invisible. Even when perpetrators are found guilty of assault, judges’ decisions may still reduce perpetrators’ accountability for their actions by minimizing intent, the scale of violence and harmful impact that the perpetrator has caused to the survivor.
Legal reform is required, including changes in legal language, in order to better protect survivors and bring attention to the severity of gender-based violence.
Read our glossary of legal terms here.
REFERENCES
- UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted under General Assembly resolution 40/34 (1985).
- Women’s Access to Justice for Gender–Based Violence: a Practitioners’ Guide” International Commission of Jurists (2016)
- Rahila Gupta, “’Victim’ vs ‘Survivor’: feminism and language”, Open Democracy, 16 June 2014.
Response-Based Practice in the Legal System
Response-based practice emerged as a result of a significant omission of the resistance of a survivor in legal proceedings. Dr. Allan Wade and Dr. Catherine Richardson are two researchers who have made important contributions to the area of response-based practice, in the context of gender-based violence.
Overt physical opposition remains the form of resistance most acknowledged in the legal system; however, a response-based approach honours the numerous non-physical ways in which an individual may exercise resistance. Response-based practice combines an understanding of resistance, language and social responses.1
For example, it is important to ask questions that invite the survivor to speak from an active position, rather than a passive position. 1 This ensures greater accountability and visibility of the perpetrator, as well as contributes to making gender-based violence more visible.2
Everything that is conveyed about gender-based violence impacts our social views on it. The current discourse around gender-based violence misrepresents the survivors and perpetrators.1 A change in the use of language may lead to positive shifts in mainstream discourse to no longer unjustly conceal violence, blame and pathologize the survivor.1
Language has the power to expose social inequities and can be a catalyst for positive social change. Response-based practice has the power to honour survivors’ resistance, instead of concealing it.
REFERENCES
- Dhudwal, S. & Sheehan, C. (2011). A Content Analysis of Response-Based Practice. University of Victoria, British Columbia. Master’s research project, University of Victoria, Victoria, British Columbia.
- Kingston, A. (2019). Let’s finally call ‘violence against women’ what it really is. Maclean’s Magazine.
Questions to consider regarding the use of legal language in the courts
How does the language of the courts constrict, minimize or distort a survivor’s experience?
How does language re-traumatize survivors in the courts?
Legal language carries credibility and encoded meaning within the legal system, but may significantly misrepresent reality – how does this shape survivors’ experiences in the courts and ability to speak their experience?
How does the language used by the legal system to describe gendered and racialized violence affect the legal, public and media conceptualization of risk and harm?
How does the use of language re-assign /reframe, minimize/mutualize accountability for assault?
How does language use describe the impact of violence – as a transitory individual harm or as a social wrong?
How do descriptions of violent acts portray the motivation of the perpetrator – as a “mistaken belief,” “crime of passion” or a pre-meditated act?
Underlying: Why do rape and masochism myths still form the central tenant of many judges’ decisions?
How does the language of the court reflect or make invisible a survivor’s resistance?
