Gregory M. Matoesian
Peter Tiersma, either solely or with his longtime collaborator Larry Solan, has written extensively on some of the most crucial issues in the field of language and law, or what we now call forensic linguistics. Moreover, his books, articles, and edited volumes, such as the classic Legal Language (1999), are required reading for scholars in the field, not just for understanding how language functions in the legal system but for broader social problems the law deals with on a mundane basis. One of these social problems concerns sexual assault and how rape cases are handled in the courtroom. In this chapter I discuss Tiersma’s analysis of “The Language of Consent in Rape Law,” (2007)—doubtless one of the most vexing social and legal problems confronting those of us interested in language, law, and legal policy. In doing so, I hope to elaborate, expand, and re-specify key points relevant in thinking about consent.
The case under consideration here represents the most common type of sexual assault charge that goes to trial—date or acquaintance cases—so Tiersma’s analysis does not apply to the less-frequent stranger rapes, only to the prototypical “he-said-she-said” case where the issue of consent becomes relevant. Who wins the “war of words”? Tiersma demonstrates the inherently problematic nature of consent (he is only dealing with heterosexual cases where the male is the defendant and the female is the complainant) along numerous dimensions. I will address only several here. First, how do we determine the woman’s mental state, the locus of consent? Second, how do various patriarchal assumptions inform determination of consent? Finally, how does aggressive cross-examination by the defense attorney revictimize the complainant and “cloud” interpretation of consent? While these may appear as distinct questions, they interrelate along several lines.
To address these questions in this brief essay, let me provide a piece of data from an actual date/acquaintance rape trial and move on from there. The following question and answer sequence consists of the defense lawyer (DL) and complainant (C) (edited).
DL: You were attracted to Bruce weren’t you?
C: I thought he was a nice, clean looking man.
DL: He was attractive looking correct?
DL: And basically when you left the parking lot that night all you knew about him was that he was a good looking man?