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International Journal of Law, Crime and Justice

40 (2012) 324e337
www.elsevier.com/locate/ijlcj

Language, gender and ‘reality’: Violence

against women
Patricia Easteal a,*, Lorana Bartels a, Sally Bradford b
a
School of Law, University of Canberra, ACT 2601, Australia
b
Discipline of Psychology, University of Canberra, ACT 2601, Australia

Abstract

This paper examines the theory behind and some examples of the relationships between gender,
language, cognition and perception in the context of the criminal justice system. In particular, we consider
the language of domestic violence and sexual assault and how words and communication styles can affect
and are affected by what we think and believe to be ‘reality’. The paper illustrates how the language used
to describe violence against women may operate to minimise these acts, and the dominant conversational
style and female violence victims’ genderlect may collide to produce evidentiary issues and a credibility
gap. We argue that there is an inherent dilemma in engaging with legal constructs which continue to
negate women’s understandings of reality, and that the voices of female rape and domestic violence
victims remain muted by the baritone ‘voice’ of the legal system.
Ó 2012 Elsevier Ltd. All rights reserved.

Keywords: Violence against women; Language; Gender; Communication

1. Introduction

In this paper, we examine the theory behind and some examples of the relationships between
gender, language, cognition and perception e particularly in law. We look at the language of
domestic violence and sexual assault to see how words and communication styles can affect and
are affected by what we think and believe to be ‘reality.’

* Corresponding author. Tel.: þ61 62593773.

E-mail address: patricia.easteal@canberra.edu.au (P. Easteal).

1756-0616/$ - see front matter Ó 2012 Elsevier Ltd. All rights reserved.
10.1016/j.ijlcj.2012.05.001
 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337 325

Legal thinking and communication strongly reflect masculine language styles, morals and
values because our current legal system has evolved from an institution run entirely by males
(Easteal, 2010). Its history has meant that it has ultimately suffered the same fate as our gender
and identity roles, in that what was once a performance is now viewed only as natural. Simone
de Beauvoir summed it up nicely when she stated, ‘men have created the legal world in their
own image, confusing it with the absolute truth’ (de Beaviour, as cited in Davies, 1994, p. 168).
It is our argument that the male values which our criminal justice system is based upon are
consistently reinforced by the gendered language systems used within our criminal justice
system. The ‘voice’ of the law is male, with its emphasis upon abstract rules, instead of the
female whisper of connectedness. This is not a simple one-way relationship either. As explored
in this article, law’s baritone ‘voice’ also contributes in turn to the perpetuation of a masculine-
derived perception of ‘reality.’ In making this argument, we acknowledge the impracticality of
adding new gender-neutral pronouns to the English language (Pinker, 1994), and endorse
Radcliffe Richards’ (1980, p. 291) assessment that ‘the use of “man”, “he” and the like are not
sexually neutral at all...and the common use of these male words does influence people’s
unconscious attitudes to women’.
In the next part of this paper, we see how language contributes to the construction of ‘reality’
(cognition and perception). We discuss how the language we use creates a lens which helps us
perceive the world in certain ways and also can serve as a reflector of the dominant values.
Then, in Part III, we look at how gender is related to, and reciprocally influential on, language
and conversational styles. In Western industrialised countries like Australia, these communi-
cation differences have been coined ‘genderlects ’ (Tannen, 1990, 1994). Although primarily an
essentialist construct, Tannen does include differences derived from ethnicity and class. It is the
male style of speaking which dominates in mixed conversation and male genderlects are the
norm in the professional domain (Coates, 1996).
The discussion of these nexuses between language and belief systems is necessary, as it
provides a foundation to understanding how our laws and their administrative institutions are
entrenched in a masculine legacy of words and semantics e institutional structures and workers
often incapable of understanding and supporting women. Thus, in a survey examining
community attitudes about violence against women, Taylor and Mouzos (2006) found that
despite some positive changes over the previous decade, negative attitudes and stereotypes
towards violence against women persisted. Social and legal constructions of violence against
women may not correspond with the victims’ experiences e how they perceive the violence.
These differences are an effect of variation in the assumptions that we each make about
‘reality.’ Our perceptions are the outcome of a multitude of filters that twist and turn ‘according
to our own individual experiences and knowledge to create a picture at the end of the kalei-
doscope cylinder’ (Easteal, 2003, p. 250). In Part IV, we illustrate how the language used to
describe violence against women (no doubt a reflection of dominant beliefs) may act to
minimise these acts of violence, maintaining a ‘reality’ alternative to that of the victim. Finally,
Part V examines how the dominant conversational style and the female violence victims’
genderlect may collide to produce evidentiary issues and a credibility gap.

2. Sociolinguistic theory: language and ‘reality’

The construction of our society, culture and identity e our ‘reality’ e has been established
through a continuous process of performance and enculturation. From the day we are born, we
observe others in our lives ‘performing’ a role. We watch our mother act like a ‘mum’, our
326 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337

father act like a ‘dad’, and our teachers act like ‘teachers’. Through these observations of others
in their particular ‘roles’, we begin to learn what is acceptable behaviour (Easteal, 2001). We
learn what is deemed appropriate in our society, and consequently, ‘perform’ that role
ourselves. Over time, however, our observations and conscious thoughts about what is
appropriate begin to fade away, leaving only the role we perform. We no longer pay attention to
how we should be acting; instead we simply just act, believing that how we are behaving is
‘natural’. In other words, we have become enculturated.
One of the ways that we ‘perform’ our roles within society, and become socialised, is
through the use of language. Our language filters what we want to see, or choose to see, and by
doing so it influences what we communicate to others. The communication we have with others
gradually creates social conventions and those conventions subsequently affect what language
we deem appropriate in certain situations (Kramsch, 1998). The language, which is appropriate
in certain circumstances, subsequently filters what we want to see, or choose to see, and the
process continues. And, in turn, the dominant beliefs contribute to the words we use and to
conversational styles. Thus, the connections between language and thought are not one-way. As
Lakoff (1977, p. 292) asserted, ‘Language and thought are meaningful because they are
motivated by our functioning in the world.’
Indeed, language has been identified as an influential agent in the way we see the world.
Most sociolinguists believe that, at a minimum, language influences the way we perceive the
world around us (Mesthrie et al., 2009). Different linguistic forms vary how we look at the
world by classifying our perceptions (Salzmann, 2004), and, by systematically ‘singling out and
emphasising some features of the experience, combining some, and by ignoring or excluding
others’ (Anderson, 1976, p. 302). An example of how language can affect our perceptions was
demonstrated in the classic study by Loftus and Palmer (1974). They showed how eye-
witnesses’ testimony could be influenced by the words used in questioning. Participants who
watched an automobile crash and were asked ‘How fast do you think the cars were going before
they smashed?,’ reported greater car speeds than participants watching the same crash who were
asked ‘How fast do you think the cars were going before they collided/bumped/hit/contacted?’
(Loftus and Palmer, 1974, p. 585). In this instance, the word ‘smashed’ worked as a lens which
altered the way the crash was viewed by participants, as the term holds certain connotations
which are different to those associated with collided, bumped, hit and/or contacted.
The use of language to change what we see and hear is also clearly evident within the
courtroom. By systematically highlighting and silencing certain aspects of the crime before the
court, as well as by using different verb tenses and pronouns (Coates et al., 1994; Rosulek,
2008), lawyers are able to take the same defendant, complainant, witnesses and evidence,
and create opposing arguments about what happened. We also note the persistence of masculine
epistemology (words, taxonomies and interpretation of concepts) and, as discussed in the next
section, the dominant masculine style of verbal and non-verbal communication. Even when the
language overtly neutralises gender, the interpretation of legal standards like ‘reasonable’ and
‘relevance’ may continue to be gendered. Although the terminology has shifted from ‘man’ to
‘person’, the change may merely mask the persistence of a male standard of what is
‘reasonable’ and ‘ordinary’ (Handsley, 1996, p. 61).
Just as language helps the speaker to perceive the world in a certain way, it also limits the
possible other ways that it can be viewed. Not only does language force us to think within the
confines of its syntax (Berger and Luckman, 1969), but we can only think and communicate
about concepts if our language provides us with the words to do so (Kramsch, 1998). For
example, doctors can communicate about the human body in completely different ways to lay
 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337 327

people, as doctors have the vocabulary to do so. Further, some languages have words for
concepts that cannot be literally translated into other languages. In these cases, we often need to
adopt that term into our vocabulary simply to think about and communicate the concept. An
example is the phenomenon of de´jà vu, which is used to describe the feeling that one has
already experienced a present moment (Brown, 2005). Although a number of English trans-
lations have been suggested since the phenomenon was first researched in the mid 1800s, these
terms have been cumbersome and fail to capture the true meaning of the French term. English
speakers have therefore adopted the French term into their vocabulary in order to communicate
about the concept.

3. Language, identity and gender

Just as language influences how we view the world around us, and how we act in that world,
it can also affect our gender and identity (Coates, 1996; Omoniyi and White, 2006) and vice
versa. Whilst we are born with a biologically predetermined ‘sex’, we are not born with
a ‘gender’ (Cameron, 2006). Our ‘gender’ refers to the cultural traits deemed appropriate for
men and women in each society (Cameron, 2006), and the roles that we ‘perform’ through
language, and various discourses (Butler, 1990). While we may be ‘performers’ of our identity
and gender, we are not necessarily free to choose our performance. Our current gender roles
have been socially constructed by females and males acting out their gender assignment
throughout history. Over time, these roles, and the systematic language structures associated
with them, come to be seen as ‘natural’ (Kramsch, 1998; Omoniyi and White, 2006). However,
it is interesting to note that Edwards and Hamilton (2004, p. 504) in their empirical testing of
Tannen’s theories found that differences in genderlects were not a simple result of the sex of
respondents but that ‘the effects of sex are mediated by the gender roles of dominance and
nurturance.’
There are a number of differences between the vocabulary and syntax of males and females.
The latter’s socially constructed ‘appropriate’ language styles often put them in a disadvantaged
position, as they may cause women to appear submissive and deferential (Lakoff, 1977). This
may in turn be due to parts of the female genderlect, which promote solidarity and social
relationships (Wardhaugh, 2010). For example, women’s sentences are more likely to end with
a question mark either by intonation or with a ‘tag’ question, such as, ‘It’s a fair outcome, isn’t
it?’ and tend to use terms such as ‘we’ to a greater extent. Their speech style is more indirect
and self-effacing and less powerful (Coates, 1993). In addition, women at times seem to lessen
their commitment to what they are saying through the use of conversational ‘down-toners’ that
minimise the impact of what they are saying (Eckert and McConnell-Ginet, 2003, pp
183e184). Women-speak also includes ‘“hyper-polite circumlocutions” such as “It would be
really nice if you could please leave me alone”, and “semantically ambiguous adjectives and
intensifiers” such as “I guess it was kind of OK”.’ (White, 1991, p. 406). Aside from having
a more indirect and person/process orientation in their interaction style, females are more
collaborative, facilitative and conciliatory, in contrast to a masculine style, which tends to
promote autonomy, competitiveness and confrontation (Holmes, 2006, p. 9).
In addition, males are more likely to assert their power by interrupting, challenging,
disputing, ignoring and trying to control the topic of discussion (Mesthrie et al., 2009;
Wardhaugh, 2010). A masculine interactional style is direct and outcome-focussed, while the
female genderlect is indirect and person-oriented (Coates et al., 1994, p. 198). There are also
contrasts in views about aggression, with females frequently viewing it as personally directed
328 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337

and negative, and males seeing it as simply a way of organising a conversation (Salzmann,
2004).
Speaking in a female genderlect may be so habitual that it is used to the detriment of the
speaker. Mullany (2006), for instance, found that women in managerial roles frequently used
language which was inconsistent with the language socially and culturally expected of good
managers, preferring instead the language commonly used by women in everyday parlance.
This occurred because their gendered discourses were stronger than their workplace discourses.
Women are further disadvantaged because their speech styles are judged against males, whose
speech patterns are considered the ‘norm’ (Wardhaugh, 2010). Comparing females’ speech
styles against males’ has led to the wrongly-held belief that women’s language patterns are
trivial, gossip-laden, corrupt, illogical, idle, euphemistic and/or trivial (Wardhaugh, 2010).
These differences can affect all communication, including negotiation (Tillett, 1999). For
example, women of any age are much less likely than men to negotiate salaries and those that
do consistently ask for less (Babcock and Laschever, 2003), which no doubt contributes in part
to the persistent gender wage inequality. Interestingly, Babcock and Laschever (2003, p. 6)
found that women outperform men when negotiating on behalf of someone other than them-
selves, which could be an accoutrement of being raised to take care of others, and that women’s
distaste for negotiation is a product of socialization and gender role stereotypes rather than
something inherently female (pp. 68e83). Those who do negotiate run the risk of being seen as
pushy and possibly negatively sanctioned, while men are more likely to be rewarded (Babcock
and Laschever, 2003).
Not unexpectedly, then, it is the masculine genderlect that prevails in the adversarial court,
‘with its gladiatorial, combative features’ (Graycar and Morgan, 1990, p. 410). Juxtaposed
against a masculine genderlect standard, women as witnesses or complainants may well be
perceived as less credible. Indeed, credibility is neither neutral nor an absolute. As Hunter and
Mack (1997, p. 192) wrote: ‘procedural and evidential categories and subjects are not neutral
and inevitable, but are constructed in cultural images of masculine and feminine’. In order to
explore this issue further, we now propose to consider the impact of gender and language
differences when violence against women meets the legal system.

4. Language of violence against women

4.1. The words of domestic violence

The term ‘domestic violence’ understates the seriousness and criminality of violence within
the home. ‘Domestic’ means private, and is often perceived as a relatively unimportant place,
with housework depicted as not quite genuine work since it is unpaid, in contrast to the more
important world of real work and politics outside of the home.
The separation of the private and public is both part of our actual lives and an ideological
mystification of liberal-patriarchal reality.women’s natures are such that they are
properly subject to men and their proper place is in the private, domestic sphere.while
men properly inhabit, and rule within, both spheres (Pateman, 1989, pp. 131, 120).
By prefixing violence with the word ‘domestic’, as a general category of offence, it becomes
less criminal and neutralises the role of the perpetrator. For instance, to successfully argue self-
defence, the battered woman defendant must show that she had a reasonable belief that her life
was in danger. This can be problematic when judges use language that minimises histories of
 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337 329

brutal assaults, referring to them as ‘spats’, ‘matrimonial discord,’ ‘stormy relationship,’

‘marital problems’ or ‘difficulties’ (Easteal, 2003, p. 15). In the case of R v Roberts (NSWSC,
unreported, 31 August 1989), Hunt J asserted at p. 5:
It has been made very clear by the courts that the taking of a human life, even within the
context of domestic violence, will not be reviewed with leniency. Not even extreme
domestic discord can ever be an excuse for the victim to take the law into her own hands
or to extinguish the life of the aggressor.
This dictum has been upheld in subsequent New South Wales cases, such as R v Yeoman
[2003] NSWSC 194 and R v Russell [2006] NSWSC 722, where Newman AJ added at [87]:
‘In other words, the concept of battered woman syndrome is a factor to be taken into account by
way of mitigation not by way of exculpation’.
The language thus reflects a dichotomy between ‘real’ criminal assault and what takes place
in the domestic sphere. This denial of both the seriousness and the effects of the precipitating
violence were evident when, in sentencing battered woman Lynette Vandersee for the
manslaughter of her husband to a minimum term of five years imprisonment, the judge stated
that the degree of provocation ‘should be assessed as medium, rather than great’ (R v Vandersee
[2000] NSWSC 916 at [143]). James J reiterated that the dead man ‘sought to dominate and
control the prisoner’ (at [136]) and used ‘cruel and abusive language to her [and] made cruel
comments about her alleged lack of intelligence and about her physical appearance’ (at [137]),
as well as ‘smacking her legs and buttocks with a ruler, pinching her, lightly punching her in the
stomach or arm, twisting her nipples and requiring her to have sexual intercourse with him,
when she was unwilling, indicating that he was using the prisoner for his own sexual relief’ (at
[139]). Although the judge acknowledged at [140] that these actions were ‘humiliating and
distressing’ for the prisoner, he seemed unaware of how the bizarre becomes normalised in
a violent home, and was more impressed with the trivialisation of the violence in her interview
with police, noting that the violent acts had been regarded by the prisoner ‘primarily as
psychological abuse, rather than as physical violence’ (at [140]).
In fact, this was in part due to the following questions asked in records of interview by the
police and the solicitor:

‘Were you hit?’

‘Were you bashed?
‘No’, she responded (Easteal, 2001: p. 42).

Physical violence was in fact a fairly routine part of her life. In addition to the acts described
by the judge, if the offender slept later than her partner, he would pinch her breasts and nipples
hard enough to bruise. In addition, it was not uncommon for him to jump on her with his full
weight when she was lying down. These, along with rape and ‘smacking with a ruler’ were not,
however, acts that she constructed as ‘hitting’ or ‘bashing’ (Easteal, 2001, p. 42). Her dictionary
meaning of ‘bashed’ and ‘hit’ was different than that of the questioners e another example of
how experiential semantics may be.
Indeed, within the courts, a masculine model of violence (assault in the public domain) tends
to be used as the template or comparator. The focus is on a single episode of physical assault
(e.g., singular punch or a pub brawl) without much, if any, contextual background. For a bat-
tered woman like Lynette Vandersee, the one ‘alleged assault’ or incident that catapults her into
contact with the criminal justice system could appear to have been a spontaneous act of
330 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337

violence without premeditation. If placed on a continuum of severity with assault in the public
domain as the comparator, it may seem to fall or belong at the less serious end of the scale.
However, domestic violence is not about a single strike of physical violence e from the
victim’s perspective, far from it. Frequently, the ‘incident’ that results in the victim killing her
batterer is in actuality just a small part of the myriad of physical and non-physical behaviours
aimed at disempowering the victim.
There seems to be a tendency, too, by some police and magistrates, in using the civil
domestic violence legislation, to shift the blame to the victim and/or, as the language does, infer
that there was mutuality in the abuse. By way of example, some police ask a victim witness
questions like: ‘What did you do to provoke this?’ (Drabsch, 2007, p. 18). This is compounded
by some magistrates treating the alleged violence as being the responsibility of the victim or not
granting the orders sought, instead treating the violence as a family problem or as something
requiring counselling (Spowart and Neil, 1997, p. 82).

4.2. The words of rape

What is ‘real’ rape? There seems to be a societal cognitive continuum with ‘authentic rape’
or ‘real rape’ (e.g., where the rapist is a stranger who uses physical force, the victim sustains
injuries and reports the incident immediately) at one end and ‘not quite legitimate assault’
(which might involve non-physical coercion, delay in reporting and/or victim ‘provocation’) at
the other end (Edwards et al., 2011; Estrich, 1987; Stubbs, 2003). These beliefs about ‘real’
rape are so ingrained within our society, that Clark (2007) found that 98% of Australian
respondents believed that these types of myths were relevant in determining the ‘seriousness’ of
the sexual assault. Judges, jurors and legal practitioners are not of course immune to this
community discourse (Easteal and Gani, 2005; Neame and Heenan, 2003; Taylor and Gassner,
2010; Taylor and Mouzos, 2006). For example, although the immunity of husbands from
prosecution and a ‘license to rape’ have been abolished for just over 30 years, partner rape has
particularly low reporting, prosecution, and conviction rates (Easteal and Feerick, 2005; Easteal
and Gani, 2005; Heenan and Murray, 2006; Lievore, 2003, 2005). A substantial number of
judgements were analysed in two studies (Easteal, 1998; Easteal and Gani, 2005) identifying
judicial use of phrases like ‘little short of rape’ and ‘special relationship’ to describe violent
marriages and sexual assault. One low point in such discourse was surely the 1992 South
Australian Supreme Court case in which Justice Derek Bollen infamously asserted:
There is, of course, nothing wrong with a husband, faced with his wife’s initial refusal to
engage in intercourse, in attempting, in an acceptable way, to persuade her to change her
mind, and that may involve a measure of rougher than usual handling. It may be that
handling and persuasion will persuade the wife to agree (R v Johns, Supreme Court, SA
No. SCCRM/91/452, 26 August 1992; emphasis added).
Almost 20 years later, as discussed by Kennedy et al. (2009) in their analysis of 19 Victorian
judgements, sentencing language continues to illustrate some judges’ perception of the greater
harm of rape by a stranger:
.the facts in this case are most serious. They are disturbing in that they occurred. in
circumstances where you did not know the victim prior to this assault. It is also disturbing that
this offending occurred in her bedroom at the university premises, and that she was entitled to
feel safe. Your behaviour was totally unacceptable (R v Ipia, Immanuel, 2008 VCC 0355).
 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337 331

It was a horrific experience for your victim to return to her home to be confronted by you,
a complete stranger armed with a bread knife, and then be subjected to your degrading
and humiliating behaviour for a sustained period. It was.every woman’s worst night-
mare (R v Lancaster, Damien, 2008, VCC 0043, 5e6).

.an extremely serious example of the offence of rape ... Such conduct was craven and
despicable ... She was unknown to you, taken from the street where she had the right to
feel safe. She was attacked without explanation and suffered extremely serious injuries
(R v Gill, Luke, 2008, VCC 0027, 46e47).
At the other end of the socially constructed continuum are the more common assaults, which
occur at the hands of a person known to the victim. These are generally seen to be ‘less severe’
or even acceptable. For instance, Hulme J in his decision in regards to a case of sexual assault
against a women who was once in a consensual sexual relationship with the defendant stated:
.Although fearful of the Appellant the Complainant at least knew him and no doubt was
capable of making some assessment of the situation. Also relevant is the fact that while the
Appellant gave the Complainant cause to fear him, the situation was not one where she had
to endure the terror of an unknown kidnapper. The case was not one where a victim walking
through a lonely street or park at night is seized by a complete stranger about whom she
knows nothing and who, for all the victim knows, may well kill her when the intercourse is
over. There is nothing to suggest that the consequences of the Appellant’s con-
duct.included in an unwanted pregnancy or AIDS or other potentially life damaging
illness or left the Complainant with any fear of these matters (Boney v R, [2008], NSWCCA
165 at [106]).

The ingrained myths about rape, along with the lack of terms in the English vocabulary to
describe physical and sexual acts, create a situation which has judges, jurors and police officers
alike inappropriately using the same words to describe sexual acts which are forced as those
which are consensual. For instance, in a study of 563 Canadian sexual assault cases between
1986 and 1992, it was found that the language used by judges frequently failed to appropriately
describe sexual assaults (Coates et al., 1994). Terms such as ‘engage in sexual intercourse’,
‘bout of intercourse’ and ‘a form of bondage’ were used to describe forced vaginal penetration;
non-consensual manual e genital contact was referred to as ‘fondling’, ‘brief touching’, ‘hand
beneath her panties’, and ‘advantage taken of a situation’; and a history of assaulting children
was described using statements such as ‘sexual appetite’ and ‘obvious sexual difficulty (Coates
et al., 1994 pp. 192e193).
Similarly, in an Australian Capital Territory (ACT) case involving charges of unlawfully
confining a person, sexual intercourse without consent and an intentional threat to kill, the
transcript of the police interview with the victim indicates that the police asked: ‘How did he
come to rape you?’ After the victim responded that he had forced her legs open, the officer
asked, ‘How long did he lay [sic] on top of you in that position making love to you, fucking
you, whatever words you want to use, raping you?’ (Easteal and Feerick, 2005, p. 190).
Aside from gradation of harm, beliefs about ‘real’ rape, consent and its negation may be
reflected in some judicial discourse. Although women may no longer be held directly
responsible for the assault, there are still many who believe that women put themselves in
questionable situations where the male should not be held entirely responsible for the assault
(McMahon, 2010). For example, women have been viewed as more to blame when they were
332 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337

intoxicated prior to the assault than women who were sober (Campbell et al., 2004). Further, if
women are willing to use drugs or alcohol, even if not intoxicated at the time of the rape, they
are perceived as less credible and more to blame (Stewart, 2010). Accordingly, in a recent
South Australian case, Smith J refused to sentence Mathew Sloan (Fewster, 2009), as he
believed Sloan to have merely committed a ‘technical rape’. Sloan had pleaded guilty to rape
on the agreed statement of facts that the victim, who was intoxicated, had agreed to some sexual
activity (Marcus, 2010). Although the legislation (Criminal Law Consolidation Act 1935 (SA))
explicitly states that consent is not assumed because the defendant did not say or do anything to
indicate non-consent (s 46(2)) or had consented to sexual activity of a different nature (s
46(3)(h)) and that consent is vitiated if the activity takes place when the person is asleep,
unconscious or intoxicated (ss 46(3)(c) and (d)), Smith J stated:
...I would put this offence at the lower end of the scale because the (sex act) began as
a consensual one before the victim passed out and became incapable of consenting. There
is an inference that she might have consented (to more sex) had she been awake. The
issue I have to resolve is whether I should even impose a suspended sentence here, that’s
my problem (Fewster, 2009).
Judicial word choice may indeed concurrently reflect judges’ construction of consent and
contribute to the construct. This can be seen in the examples above and also in a study, which
followed one Canadian sexual assault matter through the initial trial and two appeals (Ehrlich,
2007). In this case, the complainant was a 17-year-old woman who was attending a job interview
with the accused. The accused was a carpenter who was looking for someone to sell his work for
him. The complainant suggested the interview be held in a mall, but the accused insisted that it
be held in his van. At the end of the interview, the accused asked the complainant to look at some
of his work in the enclosed trailer, which was attached to his van. She hesitantly agreed and tried
to leave the trailer door open as they entered, however the accused closed the door in a way that
made the complainant think he had locked it. The accused then began to sexually touch the
complainant, gradually becoming more intimate. The complainant stated that she complied with
many of the accused’s requests out of fear that he would become violent (R v Ewanchuk
unreported, Alberta Provincial Court, 10 November 1995; R v Ewanchuk, [1998] ABCA 52;
R v Ewanchuk, [1999] 1 SCR 330). The accused in this case was acquitted in the 1995 trial, and
the acquittal was upheld in 1998 by the Alberta Court of Appeal. However, ultimately he was
convicted in 1999 by the Canadian Supreme Court (see R v Ewanchuk, [1999] 1 SCR 330).
Ehrlich (2007) suggested that the accused was acquitted in the 1995 trial and 1998 appeal
because the judges portrayed the sexual acts as being consensual. For example, Justice Moore
in the 1995 trial continued to emphasise the relationship as being of a reciprocal nature with
statements such as ‘They hugged’ or ‘They touched each other’ (Ehrlich, 2007, p. 465 (emphasis
added)). In the 1999 Supreme Court case, the ‘facts’ were portrayed very differently by the
judges. Terms such as ‘they’ were not used; rather, the sexual acts were described as what the
defendant requested the complainant do, and that the complainant complied out of fear. Further,
all of the contextual facts surrounding the actual events were included and the events were
described in concrete behaviours, not through erotic and affection-laden terms.

5. Conversational styles collide

The last nexus between language, gender and the law that we want to highlight is the
collision of genderlects in the legal sphere. For instance, women may be disadvantaged
 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337 333

because the masculine-orientated style of direct questioning results in events being config-
ured only around points of legal argumentation (Mertz, 2007). By only focussing on specific
events, lawyers are ultimately disregarding the important social and emotional contexts in
which conflicts have evolved (Mertz, 2007). When an event comes to be seen in such
abstract dimensions, devoid of any sociocultural aspects, many of the moral and emotional
beliefs that we use to make judgements are no longer available to us (Mertz, 2007). In cases
where battered women kill their violent partner, for example, legal argumentation focuses
mainly on the events leading up the killing, with only brief references to past events within
the domestic relationship. This fails to provide the court with a true understanding of the
battered women’s reality, a reality which is likely to have involved long term emotional,
physical, financial, and/or psychological abuse at the hands of the deceased (Easteal, 2001,
pp. 36-38, 100e110.).
It should be noted that there have been some promising developments in this context in
Australia. In 2010, Queensland introduced a partial defence to murder where the killing occurs
‘for preservation’ in the context of an abusive domestic relationship (see Criminal Code 1899
(Qld), s 304B). To date, however, there do not appear to have been any cases where this
provision has been considered. Since 2005, the legislation in Victoria has explicitly empowered
courts to take into account in cases of murder, defensive homicide or manslaughter a range of
factors, including the psychological effect of violence on and social and economic factors that
impact on people who are or have been in a relationship affected by family violence (Crimes
Act 1958 (Vic), s 9AH(3)). In the first case involving a female defendant to consider the impact
of the provision, the offender pleaded guilty to defensive homicide after fatally stabbing her de
facto husband with a kitchen knife. When sentencing her to nine years’ imprisonment with
a non-parole period of six years, Curtain J acknowledged that the offender’s ‘moral culpability
is reduced by the family violence [she had] endured (R v Black [2011] VSC 152 at [23]).
Generally speaking, however, the male orientated language systems, values, and ways of
knowing create a judicial system which is incapable of understanding the history of these
women’s lives and relationships.
Another issue comes from differences in gender conversational styles. The ‘survivorlect’ is
an extreme variant of the female genderlect. The way one Indigenous battered woman, Robyn
Kina, arrested for killing her partner, presented to her lawyer is an apt example, as the solicitor
observed that Kina was ‘very reluctant to make any negative comments about the deceased’.
When asked about incidents when her violent partner had assaulted her, Kina tagged her
responses with statements such as: ‘But I probably deserved that’, or, ‘I probably caused him to
do that by my behaviour.’ (Easteal and Hopkins, 2010, p. 112). Women e and particularly
women who have been further subordinated through violence e tend to use hedging expres-
sions like ‘Well, um. Looks as if probably’ (Holmes, 2006, p. 9). Indeed, victimization and its
accoutrements of low self-esteem, self-doubt, vulnerability, fragility and distrust contribute to
a deferential speech style. Such women obviously do not ‘present’ their evidence in a credible
way e with credibility defined as direct and assured e and therefore do not make the best
witnesses. The picture of violence that they communicate may be somewhat impressionistic.
Consequently:
Women have suffered from the failure of the legal system to take women seriously, to
grant to women the same allowance that is extended to men: that of characters with full
mental powers, with full human status, with the right to be regarded as credible as human
beings operating in this world (Scutt, 1993, p. 20).
334 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337

Cross-examination is also potentially stressful, given the adversarial nature of our courts. As
Cossins (2009, p. 68) describes:

The ‘primacy of the oral tradition’, within a culture of adversarialism, has produced
entrenched patterns of testing oral evidence through leading questions that utilise
complex vocabulary, sentence construction and syntax. Such techniques have been
described as ‘legitimated bullying’.
For rape (and domestic violence) victim witnesses, similar feelings of powerlessness to those
experienced as a result of the original abuse may be triggered (Cossins, 2009; Eastwood and
Patton, 2002). Indeed, it has been suggested that ‘there is no difference between being raped
and giving evidence as a key witness at the trial of your alleged rapist, except that this time it
happens in front of a crowd’ (Stuart, 1993, p. 101). As the former Premier of the Australian
State of New South Wales stated:

That humiliation involves their being forced to recount... in minute detail the most
humiliating and degrading experiences they have ever gone through and then to suffer
under cross-examination the imputation and insinuation about the victim’s own respon-
sibility for the offence and against the victim’s character and morals (Criminal Justice
Sexual Offences Taskforce, 2005, p. 53).
The object in cross-examination often seems to retrigger victim trauma, confusion and
inconsistency. In one such example, the victim was continually questioned about specific details
with regard to the rape, in an apparent attempt to cause her confusion and create an impression
of not being credible:

Q: Do you say that you did suffer injury to your lips or you didn’t?
A: I’m sorry but I’m not sure because this kind of abuse, not as bad but it had happened.
Q: I’m not asking you about other occasions which may or may not have happened, I’m
asking you about. this occasion?
A: I don’t understand.
Q: When you say you’re not, whether or not you suffered injury to your lips although you do
recall saying that that had happened on a previous occasion?
A: Yes I do, but I’m not too sure (Easteal and Feerick, 2005, p. 202).

Being a credible witness is equated with being a consistent witness. Questions like these
may contribute to victims’ evidence being perceived as weak or not credible (see NSW
Department for Women, 1996; Scutt, 1992; Taylor and Gassner, 2010). In contrast with the
confusion and lack of clarity many witnesses may display in the witness box, the credible
witness is expected to be able to particularise. In one ACT rape matter committal, for example,
the complainant was asked question after question about the minute details of the alleged
assault. Where was her left hand? Where was her right hand? Where were his hands at each
point in time? (Easteal and Feerick, 2005, p. 202). In a study of Australian prosecutors about
sexual assault cases, a credible witness was perceived as being one who was consistent, genuine
and trustworthy, and also one who ‘is not aggressive, ‘smart’, or ‘argumentative towards the
defence’ and does not express ‘her opinion of or feelings towards the defendant’ (Lievore,
2004, p. 4). Again, this may disadvantage some sexual assault complainants in terms of how
they are perceived in court.
 P. Easteal et al. / International Journal of Law, Crime and Justice 40 (2012) 324e337 335

6. Conclusion

Australia remains a male-dominated society. The gendered pay gap and public/private
dichotomy perpetuate devaluation of women and male dominance ‘like a steady torrent of
patriarchal rain upon the values, roles and structures of the society that in turn impact on the
law’ (Easteal, 2001, p. 12). Both from a holistic and a sociolegal perspective, all of these parts
of culture are reflected in language and perpetuated by gender differences in language. Within
a holistic and sociolinguistic model, law is only a small cog in the wheel, and therefore limited
by the rest of the machinery of the social system. The existence of unwritten social subtexts
limits the ability of effectuating change simply through rewording rape and domestic violence
laws. No matter the language employed, there is an inherent dilemma in engaging with legal
constructs which continue to negate women’s understandings of reality and which make no
genuine attempt to integrate the full-ranged chorus of women’s voices. The baritones and tenors
continue to be far louder and in disharmony with the muted soprano voices of rape and
domestic violence victims.

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