Wednesday, December 14, 2011

Obscenities in Court Opinions: Some Thoughts

Obscenities in Court Opinions: Some Thoughts

            There is a disturbing trend in recent Supreme Court decisions that needs to be immediately addressed.  In a number of cases involving the crime of rape, the word “fucked” appears many times either as part of the stenographic notes of the direct examination of the complainant or in excerpts of the trial courts’ decisions under review.  The word is used as a translation of the complainant’s testimony describing an alleged rape.

            The word first appeared in 1983 in the case of People v. Banasen, and since then has appeared in seventeen other decisions.  In these decisions, the word appeared forty-four different times.  The most recent decision is a May 2011 ruling.  The following are the cases:

People of the Philippines v. Domingo Banasen, G.R. No. L-55487, December 21, 1983.
2
People of the Philippines v. Jessie Mayoral, G.R. Nos. 96094-95, November 13, 1991.
1
People of the Philippines v. Edgar Sadang, Arnulfo Sayo, and Leodigario Espinar, G.R. No. 105378, June 27, 1994.
2
People of the Philippines v. Roger Laray, Rewel Rabanes, Noli Enerio, Federico Laray, and Gorospe (Juario) Omilao, G.R. No. 101809, February 20, 1996.
3
People of the Philippines v. Cabillan, G.R. No. 117684, January 30, 1997.
5
People of the Philippines v. Reynaldo Acala, G.R. Nos. 127023-25, May 19, 1999.
1
People of the Philippines v. Domingo Brigildo, G.R. No. 124129, January 28, 2000.
1
People of the Philippines v. Delano Mendiola, G.R. No. 134846, August 8, 2000.
1
People of the Philippines v. Rogelio Bulos, G.R. No. 123542, June 26, 2001.
1
People of the Philippines v. Mario Hamto y Coderas, Ronald Cuesta y Overo, Fernan Pervera (At Large), G.R. No. 128137, August 2, 2001.
3
People of the Philippines v. Bonifacio Ariola, G.R. Nos. 142602-05, October 3, 2001.
4
People of the Philippines v. Fernando Cañaveral, G.R. No. 133790, August 1, 2002.
4
People of the Philippines v. Artemio D. Ochea, G.R. Nos. 146452-53, December 10, 2002.
5
People of the Philippines v. Rodrigo “Rudy” Opeliña and Mary Rose Leones Opeliña, G.R. No. 142751, September 30, 2003.
1
People of the Philippines v. Ricardo Balatazo, G.R. No. 118027, January 29, 2004.
4
People of the Philippines v. Salvador Nieto y Cabalse @ “Ador”, G.R. No. 177756, March 3, 2008.
2
People of the Philippines v. Pedro Nogpo, Jr. a.k.a. “Tandodoy”, G.R. No. 184791, April 16, 2009.
3
People of the Philippines v. Ernesto Mercado, G.R. No. 189847, May 30, 2011.
1


There were also four cases which used the word “fucking” to describe the rape:

People of the Philippines v. Bawit, G.R. No. L-48116, February 20, 1981.
1
People of the Philippines v. Tuando, G.R. No. L-47720, May 20, 1987.
1
People of the Philippines, v. Andaya, G.R. No. 126545, April 21, 1999.
1
People of the Philippines, v. LO-AR, G.R. No. 118935, October 6, 1997.
1

            This tally excludes the use of “fuck”[1] because in these cases, they are uttered by the lawyers or the judge when they are asking the witnesses questions and not uttered by the witnesses themselves when they are describing the commission of the offense.  I am concerned here with the translation of the word when uttered by the complainant.  I think that mistranslating the testimony into “fucked” has a particular harm to the complainants.
            “Fuck” is a vulgar term that has no place in a court opinion.  I have yet to come across a dictionary that says otherwise.  Of course, the word should appear in a court decision whenever it is relevant as when use of the word might be an element of a crime.  It may also be relevant when the use of the word is alleged as a provocation to justify an assault.  The use of the word cannot be avoided if the issue is whether the phrase “Fuck the Draft” is protected speech under the U.S. Constitution.[2]  It is pertinent in a case where the issue is the extent of the power to censor television shows.[3]
In rape cases, the use of vulgarities does little to restore the dignity of the victims.  It debases the victim further by shrouding the alleged crime in foul language. 
            The other problem with the use of this obscenity is that it connotes consensual sex.   When people “fuck” they copulate.  They have sex.  The use of the word suggests that there was force or intimidation used in the act.  When judges evaluate the evidence after the parties have rested their case, does it affect their appreciation of the evidence when it appears that the sex was consensual?  It seems obvious to me that there is a huge difference when the complainant says "he raped me" and when she says "he fucked me."  I suspect that the mistranslation can have that unintended effect: a subliminal mantra that suggests the innocence of the accused.  What crime was committed when the sex was consensual?   

            I do not suggest that court stenographers are a crude lot.  I do not suggest that the task of translating the testimonies of witnesses is an easy one.  But I think the legal profession can do better than this.  The word was used first in 1983.[4]  Before then the courts used other ways to translate the alleged rape.  Why then did we need to shift to the use of crude language?
            I may be overstating the problem, but at the very least, courts should ensure that their opinions are better crafted than scrawling on a bathroom wall.  The Judiciary should address this problem to dignify both the complainants and the profession as well.




[1] See e.g. People v. Siao, G.R. No. 126020, March 3, 2000, People v. Galeno, G.R. No. 135976-80, June 20, 2001, and People v. Bracero, G.R. No. 139529, June 20, 2001.

[2] Cohen v. California, 403 U.S. 15 (1971).
[3] Soriano v. Laguardia, G.R. No. 164785, April 29, 2009.
[4] Technically, “fuck” first appeared in People v. Alipis, G.R. No. L-17214, June 21, 1965.  The word was not uttered in the course of the complainant’s testimony.

No comments: