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University of Technology Sydney Law Research Series |
Last Updated: 9 March 2017
Changing the Way we Think about Change
Bartkowiak-Théron & Travers, 2012 CCC
Dirty words? Challenging the assumptions that underpin offensive
language crimes
Elyse Methven
UTS Faculty of
Law
Earlier this year, the New South Wales Law Reform Commission
(‘the Commission’) recommended an inquiry into the possible
abolition of the crime of using offensive language. The Commission stated
that:
Community attitudes towards the use of language, especially swear words, have
changed substantially. Some people may find swearing
offensive but the issue
under consideration is whether it should be a criminal offence (New South Wales
Law Reform Commission, 2012,
p. 310).
Calls to repeal this offence are
not new, yet they continue to be ignored by successive governments and the
broader public.
This paper critiquesthe adjudication of offensive
language crimes, focusing on the vague definition of offensive, the cryptic
construction
of the reasonable person and the elusive concept of community
standards. In part one of this paper, I define and give a general overview
of
offensive language crimes,and examine the existing literature on the unequal
enforcement of these crimes. In part two, I discusshowthe
law requires judges
toeschew expert linguistic evidence in favour of their ‘common
sense’, thereby rehashingprejudicialstereotypes
about language, sex and
place. In part three Ianalyse two cases in which judges espouse opinions that
women ought to, and have a
greater capacity for self-restraint when it comes to
swearing, and that swearing should be reserved for masculinised spaces. I draw
upon critical sociolinguistics and the notion of swearwords as
‘dirty’ words toarguethat these vague constructions enable
police
and judges to discriminate against those who challenge their concept of
‘order’ and ‘disorder’.
Offensive language
crimes
In New South Wales, s 4A(1) of the Summary Offences Act
1988 (NSW) makes it an offence to use offensive language in or near, or
within hearing from, a public place or school (‘the 1988
offence’).Last year, there were approximately 6,000 offensive language
incidents recorded in NSW alone (NSW Bureau of Crime
Statistics and Research,
2011).It is a defence to a charge under s 4A(1) if the defendant satisfies the
court (on the balance of probabilities) that he or she had a reasonable excuse
for conducting himself
or herself in the manner alleged in the information for
the offence (s 4A(2)).
New South Wales is not alone in criminalizing
offensive language. Similar offences, which criminalise offensive, abusive,
insulting,
or obscene language, exist across Australia. For example, in Western
Australia, s 74A of the Criminal Code Act 1913 (WA) makes it an offence
to ‘behave in a disorderly manner’, which includes the use of
‘insulting, offensive or threatening language’ in a public
place, a police station or lock-up. A person found guilty of
the WA offence of
behaving in a disorderly manner can be fined up to $6,000. Offenceswhich
criminalise offensive, abusive, insulting,
or obscene language overlap
considerably (Walsh, 2005), and I use the term ‘offensive language
crimes’ when referring
to these offences. In Queensland and the Northern
Territory, offensive language crimes attract a term of up to six months’
imprisonment.
The conservative Liberal-National Coalition Government led
by Nick Greiner introduced thebroad NSW offence in 1988, repealing the
narrowly
worded offence under s 5 of the Offences in Public Places Act 1979 (NSW),
which prohibited a person from:
without reasonable excuse, in or within view or hearing from a public place
or school behav[ing] in such a manner as would be likely
to cause reasonable
persons justifiably in all the circumstances to be seriously alarmed or
seriously affronted (‘the 1979
offence’).
The 1979 offence
had attracted considerable criticism from members of the LiberalParty and the
NSW Police Force, who argued that the
requirement that reasonable persons be
‘seriously alarmed or seriously affronted’ by the behaviour or
language in question
placed excessive limitations on police powers and
discretion to deal with unruly or undesirable behavior in public space (Hiller,
1983, p. 103). The hostile reaction of police was evident in an advertisement
published by the NSW Police Association on 20 August
1979 stating:
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Bartkowiak-Théron & Travers, 2012 CCC
You can still walk the streets of NSW, but we can no longer guarantee your
safety from harassment...
....Is it possible that the Offences in Public Places Act (1979) could be the
seed from which a growth of
pattern of New York style street crime will be the future
harvest?
When the 1988 offence was introduced, the National Party argued
that a more comprehensive offence with a custodial penalty attached
to it was
necessary in order to ‘prevent widespread obnoxious behaviour before
it’s too late’(New South Wales Legislative
Assembly, 1 June 1988, p.
1155). In his second reading speech to the Summary Offences Bill 1988, the
Attorney General John Dowd stated:
Underlying the Bill is the Government’s concern that all citizens have
the right to enjoy public facilities without harassment
or interference....The
community will have confidence that this legislation will
adequately deal with public order, and the police will have confidence that
it can be properly enforced (New South Wales Legislative
Assembly, 31 May 1988,
p. 804).
The 1988 offence and the accompanying penalty of up to three
months’ imprisonment sparked little opposition from theNSW Labor
party,
save for the criticism that the new Act was a ‘pussy-cat Act’ that
did not go far enough(New South Wales Legislative
Assembly, 1 June 1988, p.
1173).
Despite introducing a custodial sentence, the Attorney General
implored police and magistratestouse arrest and imprisonment as a last
resort
for Indigenous defendants. However his requests were largely ignored. It was not
until a review of the legislation that the
three-month custodial penalty was
removed by the Summary Offences (Amendment) Act 1993(NSW).
Theremoval of the custodial penalty was prompted in part by the Royal
Commission into Aboriginal Deaths in Custody, and also by the reaction to the
1992 ABC documentary Cop it Sweet, both of which highlighted the harsh
operation of the legislation on Indigenous Australians.The maximum
penalty for using offensive language under the 1988 offence is now$660, or up to
100 hours of community service (ss 4A(3),
(6)).
A development that has
taken place in the last decadeis that policein many Australian jurisdictions,
including NSW, Queensland and
Victoria, have the power to issue fines, or
infringement notices for offensive language(Leaver, 2011). Thus police are now
performing
the conflicting roles of witness, victim and judge in perceiving and
punishing offensive language.
Recent literature on offensive language
crimes focuses on the discriminatory policing and enforcement of such crimes,
particularly
in relation to Indigenous Australians.Academics from a range of
disciplines have critiqued this aspect of the offence (Cunneen, 2001,
2008;
Lennan, 2006, 2007; Morreau, 2007; Walsh, 2004, 2005; White, 2002).
The
literature demonstrates a deep hypocrisy in the enforcement of offensive
language crimes.Chris Cunneen (2001, p. 96) describes
how in August 1988, an
18-year-old Aboriginal youth was arrested and charged with offensive behaviour
for wearing a t-shirt which
highlighted Aboriginal deaths in police
custody.Police commonly arrest people for using swear words such as fuck,
prick and cunt, which are frequently used amongst police officers
and sometimes used by police officers towards members of the public(Brockie,
1992;
Cunneen, 2001; Wooten, 1991). Police are often the victims of offensive
language crimes, and almost always the witnesses. As Cunneen
writes, such
charges:
are often representative of direct police intervention and potential adverse
use of police discretion. Except for a notional ‘community’,
the
victim of the offence is almost invariably the police officer, as shown in
numerous studies in most Australian jurisdictions
(Cunneen, 2001, p.
29).
Theover-policing and over-criminalization of Indigenous
persons’ and other minorities’ use of ‘offensive’
language is well documented. With this in mind,the next part of this paper
questions how judicial opinionsonswearing rationalise
an excessive level of
police power over some of the most vulnerable members of
society.
Language ideologies and offensive language
In
my critique of offensive language crimes I draw upon critical sociolinguistic
research and the concept of language ideologies.
Sociolinguistics is the study
of the complex relationship between language and the social context in which it
is used. It assumes
that language both reflects and shapes society (Eades, 2010,
p. 5). Critical sociolinguistics is ‘critical’ in that it
is
concerned with questions about access, power, disparity, difference and
resistance (Pennycook, 2004, p. 797).
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The law is one of the most linguistic of institutions: legislation,
police investigations, court proceedings and judgments all being
overwhelmingly
linguistic processes (Gibbons, 2004, p. 289). Offensive language crimes have an
obvious linguistic dimension. In fact,
they are a typical example of what
forensic linguist Roger Shuy labels ‘language crimes’, in other
words, crimes in which
certain kinds of language use are criminalised. Writing
about language crimes, Shuy argues that linguistic issues are often overlooked
in the law:
Most people use language so easily and naturally that they tend to not really
see it very well. What people hear is often colored
by their own professional
vision, schemas, presuppositions, and expectations (Shuy, 2005, p.
xii).
When analysing offensive language, judges and police often do not
reflect on how their own frames of reference skew their linguistic
interpretations.In applying ideas from critical sociolinguistic research, I am
not concerned with prescriptive judgments: professing
to scholars the
‘correct’ way in which language should be understood. Instead, I am
interested in exploring and critiquing
prejudices about language use that inform
judicial interpretation of offensive language crimes, and perpetuate further
inequality.
Language ideologies
How we understand language is shaped
by the small worlds that we inhabit: the viewpoints and stories we embrace,
ignore and reject.
To deal with the linguistic dimension of offensive language
crimes, judges cannot consult linguistic experts. Expert evidence on
questions
of language and literature is inadmissible in offensive language cases (Howie
v Winter (1934) 12 LGR 62; Prowse v Bartlett (1972) 3 SASR 472;
Dalton v Bartlett (1972) 3 SASR 549; E (a child) v The Queen
(1994) 76 A Crim R 343). Instead, judges rehash folk knowledge as to the way
language operates. I use sociolinguist Diana Eades’ understanding of the
term ‘language ideologies’ as taken-for-granted or
‘common-sense’ assumptions about how language works, which
permeate
legal decision-making. These representations have been socially, culturally and
historically conditioned (Eades, 2010, pp.
241-242).
Importantly,
‘Ideologies of language are not about language alone’ (Eades, 2010,
p. 242; Woolard, 1998, p. 3). They also
‘serve to rationalize existing
social structures, relationships and dominant linguistic habits’ (Eades,
2010, p. 242).
Similarly, laws that circumscribe language are not just about
words, but also seek to control other aspects of human life: conflicts
about
race, class, culture and gender. Ideological positions often become naturalised
into the law (Mayr & Simpson, 2010, p.
56). This process of naturalisation
can align people to the mainstream or dominant thinking without questioning the
bases of these
assumptions.
What is „offensive‟?
The imprecise nature of
offensive language crimes creates a space in which language ideologies about
swearing flourish.The NSW Parliament
chose not to define
‘offensive,’ the Attorney General stating that it is ‘a broad
term with which members of the
public are familiar’(New South Wales
Legislative Assembly, 31 May 1988, p. 804).The case law provides little guidance
as to
the meaning of this adjective, save for the vague definition provided by
O’Bryan J in the oft-cited case of Worcester v Smith[1951]
VLR 316, in
which his Honour stated that ‘offensive’ means:
...such as is calculated to wound the feelings, arouse anger or resentment or
disgust or outrage in the mind of a reasonable person
(at 318).
The word
‘calculated’ in this definition is misleading, as the balance of
authority suggests that there is no subjective
mens rea element in
offensive language crimes. Offensive language and behaviour must be conscious
and deliberate in the sense that it is not
accidental, but the prosecution does
not have to prove an intention to offend, or knowledge that the conduct would
offend (see Police v Pfeifer [1997] SASC 6172; (1997) 68 SASR 285; Police v Atherton
[2010] SASC 87).
This definition of offensive outlined in
Worcester v Smith was adopted by Kerr J in Ball v McIntyre (1966)
9 FLR
Some types of political conduct may offend against accepted views or opinions
and may be hurtful to those who hold those accepted
views or opinions. But such
political conduct, even though not thought to be proper conduct by accepted
standards, may not be offensive
conduct within the section. Conduct showing
a
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refusal to accept commonly held attitudes of respect to institutions or
objects held in high esteem by most may not produce offensive
behaviour,
although in some cases, of course, it may (at 241).
These flexible
judicial statements make it clear that judges are reluctant to circumscribe
police discretion in dealing with offensive
language and behaviour.Police may
target a wide range of language, including language that does not involve any
threat of violence
or other unlawful activity.Courts have also held that it is
an error of law to state that words are necessarily indecent regardless
of the
context in which they are used (Hortin v Rowbottom (1993) 68 A
Crim R 381; Bradbury v Staines; Ex parte Staines [1970] Qd R 76;
Dalton v Bartlett (1972) 3 SASR 549). Furthermore, it is not necessary to
demonstrate that some person has actually been offended by the accused’s
language. The
test is an objective one, determined from the perspective of a
reasonable person (R v Connolly and Willis [1984] 1 NSWLR
373).
The abstract nature of the term ‘offensive’, the
inadmissibility of expert evidence on questions of language, the lack
of any
subjective mens rea standard, and the application of the
‘reasonable person’ standard all contribute to the wide discretion
bequeathed upon
judges and police when interpreting offensive language
crimes.
The reasonable person and community standards
We can see
a rather cautious, normative discourse develop around the construction of the
reasonable person in the case law on offensive
language. This hypothetical
person is not thin-skinned, nor overly thick-skinned (Re Marland [1963] 1 DCR
224;but seeMcCormack v Langham (Unreported, Supreme Court of NSW, 5 September
1991, Studdert J)). He or she is apparently reasonably
tolerant, understanding,
and contemporary in his or her reactions (Ball v McIntyre (1966) 9 FLR 237).
However the reasonable person has some sensitivity to social behaviour, and
social expectations in public places (Evans v Frances
(Unreported, Supreme Court
of NSW, Lusher AJ, 10 August 1990).A reasonable person is neither a social
anarchist, nor a social cynic
(Spence v Loguch (Unreported, Sully J, Supreme
Court of New South Wales, 12 November 1991). And in interpreting the perspective
of
the reasonable person, the court must have regard to contemporary community
standards or the standards of ‘right-thinking’,
‘decent-minded’ people (Melser v Police [1967] NZLR 437; Crowe v
Graham [1968] HCA 6; (1967) 121 CLR 375; Heanes v Herangi [2007] WASC 175).
Thus the
case law demonstrates that reasonable people are altogether unremarkable. The
reasonable person is not sceptical of existing
hierarchies. Reasonable people
adhere to the status quo.Judges do not acknowledge the cultural and historical
assumptions that inform
their view of who this right-minded person is. In
referring to the illusory, abstract standards of ‘decent, right-minded
people’
andan imagined ‘community’, courts are able to apply
their own naturalised prejudices relating to swearing and proper
language
use.
When arbitrating offensive language cases, the judiciary clings to a
belief in their ability to discern ‘community standards’
on bad
language, even in the face of sociolinguistic research that demonstrates that
there are no universal norms on swearing. Attitudes
towards bad language change
throughout time, across cultures and between individuals (Hughes, 2006; McEnery,
2006; Montagu, 1967). Bad language is as much a social/historical phenomenon as
a linguistic one(McEnery, 2006).
The complex cultural and historical
foundations of attitudes towards bad language are forgotten in the assessment of
who this ‘reasonable
person’ might be. Magistrates and judges reject
linguistic evidence in favour of language ideologies on what is offensive.
Their
judgments are infused with normative statements about age, sex and social class,
as well as arguments about purity, power and
‘proper’ English usage.
The judges adopt folklinguistic theories on ‘bad language’, relying
on moral absolutist
beliefs, referring to concepts such as morality, decency and
common sense, without assessing the assumptions that have informed such
beliefs.
The illusive reasonable person test in offensive language cases
has not entirely escaped criticism from members of the judiciary.
In White v
Edwards (Unreported, Supreme Court of New South Wales, 5 March 1982),
Yeldham J considered a charge under the repealed s 5 of the Offences in
Public Places Act 1979 (NSW), of behaving in a manner as would be likely to
cause reasonable persons to be seriously alarmed or seriously affronted (the
predecessor to the 1988 offence, discussed above). The facts were that at around
12.15am on 28 February 1981, a young person was
standing near an intersection in
Kings Cross, Sydney. The young person was with a group of five or six friends,
‘dressed in
attire similar to that worn by “punk
rockers”’. The young person said Fuck off cunts and Get
fucked you cunts, in a loud tone of voice. These words were heard by a
nearby police officer.
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Justice Yeldham contemplated the difficult task of determining what
constitutes the standards of ‘reasonable persons’
early in the
morning at Kings Cross, asking whether this objective test:
...envisages the standards of prostitutes, of dedicated church-goers, of
young people or of old, of visitors to the area or of residents
of Kings Cross?
In the course of argument one counsel said that "at Kings Cross you may find a
prostitute shoulder to shoulder with
an Archbishop"...The very nature of a place
such as Kings Cross, where there is to be found a large cross-section of
persons, not
all of whom may be regarded as "reasonable", emphasizes the problem
(at [5]-[6]).
Justice Yeldham’s critique of the reasonable person
test is unusual. For the most part, magistrates and judges do not embark
on a
critical assessment of who this reasonable person might be. Instead, they hide
behind a cloak of objectivity in order to proffer
their own thoughts on who
should and should not swear, who may and may not be sworn at, and the spaces in
which swearing is or is
not permissible. The concerns raised by Yeldham J about
the reasonable person standard give rise to the question of how, in a pluralist
society, might a police officer or magistrate make an ‘objective’
assessment about the offensiveness of language. What
values does the
‘reasonable person’ in Australia hold in relation to swearing across
a multitude of public places?
Case studies
Del Vecchio v Couchy
To further explore judicial
discourse relating to the reasonable person and community standards, I turn to
the Queensland case of
Del Vecchio v Couchy [2002] QCA 9.
This case concerned a charge of using insulting words in public contrary to s
7(1)(d) of the Vagrants Gaming & Other Offences Act 1931 (Qld) (which
has since been repealed and replaced by the offence of public nuisance under s 6
of the Summary Offences Act 2005 (Qld)).
To summarise the facts of
this case, at approximately 4.00 am on 21 September 2000, in inner-city
Brisbane, an intoxicated, homeless,
disoriented Indigenous woman, Melissa Jane
Couchy, was approached by a male police officer, Sergeant McGahey. McGahey asked
Couchy
if she wanted to go to ‘the compound’ – a nearby
shelter. Couchy replied: Sarge, the Compound is for fucking dogs. A
nearby female police officerthen asked Couchy to state her full name and
address. Couchy replied: You fucking cunt(or words to similar effect).
Couchy was arrested for using insulting language and received a sentence of
three weeks’ imprisonment.
While her sentence was reduced toseven days on
appeal to the District Court, Melissa Couchy’s appeals against conviction
to
the District Court, the Queensland Court of Appeal and to the High Court were
rejected.
Couchy’s case is not unusual. Couchywas homeless, which
increases her visibility in public spaces.She is Indigenous and so is
much more
likely than a non-IndigenousAustralian to be charged with using offensive
language(NSW Bureau of Crime Statistics and Research,
1999). Indigenous persons
are also subjected to a greater degree of intervention in their everyday
activities, including the ‘most
intimate parts of their lives’
(Ronalds, Chapman, & Kitchener, 1983, p. 171).Couchy’s Indigenous
identity is also
significant in that a growing body of evidence suggests that
many Indigenous Australians use swearwords differently and more frequently
than
non-Indigenous Australians (Taylor, 1995, p. 236).
There is an obvious
power asymmetry in Couchy’s case; the police are in a position of
authority, and she is not. The police
officers felt empowered to direct the
defendant as to how she should act, what she should say, and where she must go,
even if Couchy
was not legally obliged to comply with these directions. Couchy
had few tools at hand to subvert this power asymmetry. Taking into
account the
fact that she is Indigenous, frequently occupied ‘public spaces’ and
regularly came into contact with the
police, we might perceive her use of the
wordcuntto be an expression of resistance or perhaps sheer frustration,
in response to the suggestion that she be transported to ‘the
compound’.
However the courts do not entertain such a sympathetic
reading.
The Queensland Court of Appeal denied that Couchy’s
‘Aboriginality’, her poverty and the ‘plight of Indigenous
people in the community’ were relevant to the assessment of whether a
reasonable person would regard her language as insulting
with regard to
contemporary community standards. The Court effectively asserted that taking
Couchy’s Aboriginal identity and
poverty into account would be an example
of reverse discrimination. In the Court of Appeal transcript, Douglas J states
that:
I just think to add the word "Aboriginal" stretches the bar too far; it's not
necessary.
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McPherson JA agrees, going on to suggest that:
You mean that if I said these words I'd be guilty of an offence, but if she
says them she's not?
... One law for the rich and another for the poor.
Thus, in the name
of ‘equality before the law’, the Court refuses to acknowledge
fundamental aspects of Couchy’s
identity and social
situation.
While McPherson JA’s hypothetical example, that
‘if [his Honour+ said these words *he’d+ be guilty of an offence,
but if she says them she's not’ may be persuasive in theory, it is almost
impossible to imagine a scenario in which any of
the Queensland Court of Appeal
judges might be arrested or imprisoned for using insulting language. As white,
upper-class Australian
males, they occupy an elite position in society.Linguist
Brian Taylor has observed that people who enjoy a more privileged position
in
Australian society, by virtue of their profession, social status, education and
‘connections’ are rarely prosecuted
for using what Taylor calls
‘high category’ swear words such as cunt or fuck, even
where they use these words in relatively public locations(Taylor, 1995, p. 232).
Meanwhile, less privileged members of society,
including those disadvantaged by
poverty, homelessness, those whose language deviates from ‘Standard
English’ and Indigenous
persons continue to be overrepresented in
offensive language cases(Taylor, 1995, p. 234).
While the Queensland
Court of Appeal blinded itself toselective aspects of the appellant’s
identity, both the Queensland Court
of Appeal and the High Court were very alive
tothe issue of gender, offering their own hypotheses about how a reasonable male
or
female might perceive the use of the word cunt to a female. The judges
profess to be concerned about ‘equality before the law’, and yet do
so inconsistently. While
their Honours assumed that a reasonable female would
react to the word cunt in a different manner to a reasonable male, they
also assumed that a homeless, intoxicated Indigenous woman should not be held to
a different standard of language use compared to a white, upper-class
male.
The judges reject sociolinguistic evidence that there is no
universal standard on insulting language, instead relying on language
ideologies
which arehighly evaluative, emotional and aesthetically judgmental, drawing
links between swear words, disorder, incivility
and harm(Burridge, 2010;
Cameron, 1995; Wajnryb, 2004).As Paula Morreau (2007) argues, by applying
so-called ‘universal’ standards, judges effectively penalise
the
failure of Indigenous and other marginalised defendants to adhere to majority
(white) values.
The common sense assumptions about how males and females
react to swearing are even more pronounced when Melissa Couchy’s
application
for special leave to appeal is heard before Gummow, Callinan and
Heydon JJ in the High Court of Australia (Couchy v Del Vecchio [2004]
HCATrans 520). In the hearing of the application, Gummow J states:
The form of words here and the gender of the officer to which they were
addressed are quite significant in a way. This is a very strong
form of
words.
Justice Callinan adds:
Even a very well-trained police officer might be offended by these – a
female police officer particularly, having regard to
the words....
... The other point is that, despite equal opportunity, perhaps even today the fact that those words were said to a woman might provoke a physical response on the part of men who were also present. I think there were male police officers present here too, is that not right?
It is incredible that in
the twenty-first century, Australian High Court judges are entertaining
assumptions about female delicateness
and male gallantry in interpreting whether
language is ‘offensive’. The judicial statements of both the High
Court and
the Queensland Court of Appeal provide a vivid illustration of how
judges adopt an essentialised view of men and women, in which
both sexes must
conform to certain stereotypes when reacting to the utterance of the word
cunt. While a female should react in horror and disgust upon hearing the
word cunt, a male might feel compelled to defend the distressed female,
perhaps even in violence. The judges choose to ignore anything that
complicates their normative assumptions about swearing in the presence of a
female, particularly the
defendant’s Aboriginality, her poverty and her
intoxication.
McCormack v Langham
InMcCormack v Langham
(Unreported, Supreme Court of New South Wales, Studdert J, 5 September 1991)the
respondent, Geoffrey Langham, was having lunch at
Leo’s Hot Foods in
Lismore, NSW. Approximately 30
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people were in the restaurant, including adults and children. Two police
officers walked into the restaurant, and Langham was alleged
to have said (with
some degree of foresight) in a loud voice: Watch these two fucking
poofters here, how they fuckin’ persecute me.
Geoffrey
Langham was arrested and charged with using offensive language. Magistrate Pat
O’Shane dismissed the charge, finding
that the language complained of was
‘language of common usage these days and not such as would offend the
reasonable man’.
When the case was heard on appeal, Studdert J
overturned Magistrate O’Shane’s ruling and remitted the matter for
re-hearing.
In assessing the offensiveness of the language, Studdert J stated
that:
What might pass as inoffensive language if exchanged between footballers in
an all male environment in a dressing room after a match
might well offend if
repeated in mixed company in a church fete.
This statement was
cited with approval by Higgins J in Saunders v Herold(1991) 105 FLR
1.
And thus what are essentially gender-biased, aesthetic tastes become
naturalised into law. The judges advocate the cordoning off of
‘all-boy’ spaces, so that men may ‘talk dirty’ amongst
themselves, free from any disapproval of the opposite
sex. It is acceptablefor
males to swear amongst males, at the football – a heavily masculinised
space, for that is merely dirt
amongst dirt. But by swearing amongst
churchgoers, in the presence of a police officer, in mixed company, or in front
of children,
we are polluting clean spaces, and thus offending the natural order
of things.
A threat to police authority?
A significant feature of
both Couchy’s and Langham’s cases is that the
defendants uttered swear words towards, or in the presence of police officers.
Implicit in the sanctioning of such
conduct is that swearing at or in the
presence of police might undermine a police officer’s authority. It is
clear from judicial
and parliamentary statements that offensive language crimes
are primarily about commanding respect for police. When the Summary Offences
Act 1988 (NSW) was introduced in June 1988, the Attorney General
stated:
The police- young men and young women-have to suffer foul and offensive
language from people trying to breach their authority. I will
not have police
officers insulted (New South Wales Legislative Assembly, 1 June 1988, p.
1178).
Courts have also recognised that challenges to police authority
are likely to be considered disorderly or offensive conduct (Heanes v
Herangi [2007] WASC 175 at [177]).
Offensive language crimes could
conceivably target an indefinite number of insulting or abusive phrases. Yet
prosecutions are limited
to a small number of swearwords, primarily fuck
and cunt. Do theseswear words have an inherent quality that renders them
a threat to police authority?
The law cannotseek to censure swearwords
per se; such an aim would be futile. American and English linguistic
research has demonstrated that swearwords are uttered at a relatively
high
frequency - a rate of 0.3-0.7% of total words used. This can be benchmarked
against the frequency of first personal pronoun
use (such as we, us, or
our), with such words occurring at a 1.0% rate. As linguist Timothy Jay
states, language researchers do not regard personal pronouns
to be low-frequency
words(Jay, 2009, p. 156). So the law cannot possibly sanction the use of all
swear words. Nor could police conceivably
target every use of the words
fuck or cunt in a public place. Instead they must select certain
words, uttered by certain people, in certain places. These people are often the
most vulnerable and visible members of our society. Why?
Dirty Words
Offensive language can be conceived of as
language out of place. This notion of language out of place iscentral to how the
law understands
offensive language. We are historically and socially conditioned
to perceive swear words as ‘dirty words’, without questioning
why
this is so. Many can hardly articulate the word cunt, preferring
euphemisms such as ‘the c-word’, let aloneturn their mind to what
cunt might mean in a given context, or try to understand it as anything
other than dangerous orunspeakable. This understanding of swear
words as dirty
or filthy is so deeply engrained that it requires no explanation. In
Couchy’s case, the Magistrate finds it
unnecessary to explain why the word
cunt is offensive; it just is, stating:
Any word other than cunt I think may have put a doubt in my mind. But the
word “cunt” itself, I would hold to be insulting
of a female, be it
a police officer or otherwise.
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We might perceive swear words as the dirt of our language. Anthropologist
Mary Douglas considers the link between tabooed practices,
the construction of
‘dirt’ and the ordering of society in Purity and danger: An
analysis of the concepts of pollution and taboo(Douglas, 1966). Douglas
states that humans classify, separate, purify and punish dirty ideas,
practices and people to ‘impose system on an inherently tidy
experience’ (Douglas, 1966,
p. 4).She argues that dirt offends against
order, but only where dirt is ‘out of place’. Similarly, swear words
only
offend against order when they pollute a public space, but in certain
spaces, do not transgress any perceived system. There is no
such thing as
absolute dirt; dirt exists in the eye of the beholder(Douglas, 1966, p. 2). And
it is the dominant ideology that labels
that which is ‘dirty’ and
that which is ‘clean’:
Dirt then, is never a unique, isolated event. Where there is dirt, there is a
system. Dirt is a by-product of a systemic ordering
and classification of
matter, in so far as ordering involves rejecting inappropriate elements
(Douglas, 1966, p. 35).
Just as dirt out of place contaminates a space,
it is only where swear words are uttered out of place that they offend
right-minded
people(Burridge, 2010). Swear words are only ‘dirty’ in
certain contexts. It is up to police, judges and magistrates
to determine what
these contexts are.Uttered amongst equals, for example amongst police officers,
swear words are perfectly permissible.
Yet where there is asymmetry, the
consequences are criminal.
Conclusion
In this paper I
have argued that magistrates and judges rely on simplistic assumptions about
language, place and gender in order to
inform their interpretation of offensive
language crimes. The law requires that judges reject expert evidence and resort
to their
own prejudices regarding community standards and the qualities of the
reasonable person, leading to inconsistent results that too
often discriminate
against the poor and disenfranchised. In defining offensive language as that
which offends hypothetical persons
in selective contexts, the law legitimises
the imposition of police power on the powerless.
The case studies that I
have discussed exemplify the language ideologies that judges and magistrates
espouse to classify words as
‘offensive’ and therefore contaminative
of a space. Offensive language is clearly a malleable construct. While the
judiciary
links the offensiveness of language to gender, sport and religion,
they reject or downplay considerations of homelessness, intoxication,
Aboriginality and power.
Sociolinguistic research points to the
conclusion that police, magistrates and judges cannot fairly and objectively
interpret what
is offensive language. This idea tears at the very foundation of
offensive language
crimes. Are we prepared to accept this research, or
must we continue to allow adjudicators to cling to ill-informed stereotypes
about
swearing, and in doing so, punish people and ideas that transgress the
elusive line between order and
disarray?
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