Australians have a reputation for laidback attitudes towards swearing. But did you know that across Australia, it is a crime to use offensive language in or near a public place?
Much of my research considers the relationship between language, power and the criminal law. In my recent article, ‘It might be powerful; but is it offensive? Unpacking judicial views on the c-word’, I consider the legal treatment of a common Australian swear word: ‘c___t’. My article asks two questions: Have societal attitudes towards this word changed in Australia? And if they have, how should its use be judged by the criminal law?
While there are legal academic texts that consider the ‘f-word’, less attention has been paid to the legal offensiveness of the ‘c-word’, perhaps due to a perceived heightened taboo status. Attitudes towards language vary historically, individually and cross-culturally. Nonetheless, some still consider the ‘c-word’ to be among the most offensive words in the English language.
For academic purposes, I repeat this swear word throughout the linked article. Indeed, lawyers and judges must regularly make language choices about whether to repeat allegedly offensive words in legal texts and in the courtroom. When making such choices, legal professionals consider contextual variables, including the accurate reporting of facts and anticipated audience attitudes. Another consideration is the ideological effect of avoiding, or directly repeating, a swear word.
One aspect I examine in the article is how word avoidance strategies, such as my use of ‘the c-word’ in this article, can reinforce the perception that a word is offensive. On the other hand, repeated exposure to a swear word can desensitise users and audiences to any emotive effect. Word avoidance and repetition therefore function as persuasive advocacy strategies in offensive language trials.
Each Australian state and territory has its own criminal laws that criminalise offensive language. Punishments range from maximum court fines of $660 to up to six months’ imprisonment. The ‘f-word’ is the most popular subject of offensive language charges and penalty notices in New South Wales, closely followed by the ‘c-word’. To gain the attention of the criminal law, a police officer is almost always the target of, or within earshot of, the swearing.
When faced with allegedly offensive language, police can take one of several actions. They might choose to ignore the person’s conduct, issue a caution, a warning or — in some states — issue a penalty notice. An officer might instead charge someone with a criminal offence. Arrest is to be used as a last resort (DPP v Carr (2002) 127 A Crim R 151).
Offensive language charges are prosecuted in the local court. To establish an offensive language charge:
- the language must be voluntary (Jeffs v Graham (1987) 8 NSWLR 292).
- the language must be objectively offensive — it must evoke a significant emotional reaction of resentment, outrage, disgust or hatred in the mind of a reasonable person (Monis v The Queen (2013) 249 CLR 92)
- Regard must be had to the context in which the language was used (Dowse v State of New South Wales [2012] NSWCA 337), as well as community standards (Ball v McIntyre (1966) 9 FLR 237).
- the language must take place in or near, or within hearing from, a public place or school (Summary Offences Act 1988, s 4A(1)).
A defendant may also raise the defence that they had a ‘reasonable excuse’ for using the language (Summary Offences Act 1988 (NSW) s 4A(2)).
Like many popular swear words, the ‘c-word’ performs a range of interactional, rhetorical, psychological and physical functions in the English language. These functions include expressing shock, abuse or ridicule, building solidarity, showing affection and even pain relief. Given that the meaning of words is constantly changing, it is important to note that the ‘c-word’ has not always been a swear word. Indeed, in Middle English, it was used in people’s surnames, as well as street and plant names.
My article interrogates views on the ‘c-word’ expressed in Australian offensive language case law. To do so, I draw on the concept of language ideologies—‘common sense’ views about language. These views include that swear words are an unnecessary component of the English language, they should be eliminated from public space, language standards are slipping, swear words convey a literal, sexual meaning, and that words such as the ‘c-word’ are especially offensive to women. By applying sociolinguistic research to these language ideologies, I find that they do not withstand close scrutiny.
I conclude by arguing that criminal defence advocacy may be assisted by linguistic evidence to demonstrate evolving views on the ‘c-word’. For instance, in the recent Northern Territory Supreme Court case Brokus v Brennan [2022] NTSC 54, the appellant had pleaded not guilty to the charge of behaving in a disorderly manner in public (Summary Offences Act 1923 (NT) s 47(a)).
The appellant had repeatedly sworn at police officers when approached in a car park near a tavern. At first instance, the appellant was found guilty in the Northern Territory Local Court of having used obscene language. He was sentenced to fourteen days’ imprisonment. On appeal, Blokland J in the Northern Territory Supreme Court found that the appellant’s language was not obscene. Her Honour justified the decision by referring to sociolinguistic literature, including the idea that it was unlikely that the appellant meant to use the swear words in a literal sense to refer to sexual intercourse or female genitalia.
The decision of Brokus v Brennan paves the way for offensive language case law to be informed by expert linguistic evidence. This is something that has previously been rejected by the courts; judges have preferred to refer to their own experience and views of language and community standards. I argue that expert linguistic evidence can help defence lawyers identify and challenge common, but potentially inaccurate, ideas that might result in someone being criminally punished for swearing.
Keywords: Criminal law, language, swearing, punishment, linguistics
AUTHOR INFORMATION
Dr Elyse Methven is a Visiting Scholar at NUS Law and a Senior Lecturer at the Faculty of Law, University of Technology Sydney
Email: Elyse.Methven@uts.edu.au