Judges play a critical role in one of the most important stages of a criminal case’s adjudication—sentencing. While there have been substantial limitations placed on the discretion judges can exercise in devising punishments,
there are little to none on what judges say at such hearings when articulating
their rationales for the sentences they impose on convicted defendants. This
Article examines the language judges use when sentencing defendants convicted of rape, sexual assault, and sexual abuse that describes victims of
those crimes and the harms they have sustained, especially language that
describes victims as “ruined,” “broken,” or “destroyed.” The use of such
language, while apparently meant to be empathetic, only serves to uphold
misogynistic understandings of rape and sexual assault and actively harms
victims. Judges trying to justify harsh sentences for defendants convicted of
sex crimes also engage in shaming and exploitation of victims when saying
that defendants have left victims “ruined” at sentencing.
In this Article, I use traditional scholarly methods of reviewing and
analyzing cases and legal doctrine to show why the use of such language
is harmful to victims and fouts the purposes of criminal punishment.
However, I also engage in autoethnographic methods, relying on my own
experiences of rape and sexual assault, as well as prosecuting such
cases.
This Article considers how other fields such as medicine and public health have approached destigmatizing other historically stigmatized
conditions such as substance use and mental illness, arguing that judges
should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing.
I conclude by reflecting on the use of personal narrative in legal
scholarship and in the classroom and argue that it can be a powerful
tool that scholars should more openly embrace.
* Felder-Fayard Associate Professor, Tulane University Law School; U.C. Berkeley School of Law, J.D.
2006; Cornell University, B.A. 2003. © 2022, Maybell Romero
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