Goodbye ‘Affluenza Defense,’ Hello ‘Sextortion’

 by Ken Bresler
Massachusetts Lawyers Weekly, Rhode Island Lawyers Weekly,
January 5, 2017
Detroit Legal News, January 10, 2017

Legal terms come, legal terms go. Before I name the most notable legal phrases of 2016, here are the phrases that we can probably say goodbye to.

Affluenza defense. The decision to include a term in a dictionary is a judgment call, whether a dictionary is legal or all-purpose. It looks like the leading legal dictionary made a wrong call in 2014 when it included a term that has appeared in just one footnote of only one reported case.

The term is “affluenza defense” and it was in the news again in 2016 because a teen defendant who used the defense in 2013, somewhat successfully, was sentenced for violating his probation. In April 2016, Ethan Couch received 720 days, 10 days short of two years, in prison.

The 10th edition of Black’s Law Dictionary defines “affluenza defense” in part as: “A newfangled legal defense, generally not recognized, that a youthful offender cannot be held responsible for criminal acts because the wealthy environment in which he or she was reared precluded any learning about right vs. wrong.” The definition notes that the term is a portmanteau of “affluence” and “influenza.”

“Newfangled”? “Generally not recognized”? Aren’t those admissions that the term was included prematurely? In a 2014 announcement, Thomson Reuters, the publisher of the 10th edition of Black’s, touted its 7,500 new entries. The announcement specifically named only nine of them – including “affluenza defense.” Oops. Lexicography, the making of dictionaries, is an imprecise art.

Fetal assault law. I called this the most notable legal phrase of 2015, partly because the law was likely not to exist in a year. The Tennessee statute criminalizing a pregnant woman’s use of illegal drugs had a sunset provision; it expired on July 1, 2016. Unless another state enacts a fetal assault law, I may let this term expire on my on-line dictionary.

Scaliaesque. One of the most formidable legal writers of our time, Justice Antonin Scalia, died in February 2016. Eventually, I might delete the definition of “Scaliaesque” from Bresler’s Law Dictionary: “Of or pertaining to Supreme Court Justice Antonin Scalia; his sharp and witty style of speaking, questioning, or writing; forceful and colorful legal writing; or originalist constitutional theory.” With the passing of Justice Scalia, “Scaliesque” might pass on too.

Negroes, Orientals, Indians, Eskimos. Two federal statutes were amended to eliminate these terms. The words “Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts” were changed to “Asian American, Native Hawaiian, Pacific Islanders, African American, Hispanic, Native American, or Alaska Natives.” That was Section 106(f)(2) of the Local Public Works Capital Development and Investment Act of 1976, 42 U.S.C. 6705(f)(2). A similar change was made to Section 211(f)(1) of the Department of Energy Organization Act, 42 U.S.C. 7141(f)(1).

President Obama signed the changes into law on May 20, 2016. Sometimes disorientation is a welcome thing.

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The most notable legal phrases of 2016 weren’t coined in 2016. If they had been, it probably would be too soon to have noticed them and too soon to gauge their impact, longevity, and usefulness. After all, I don’t want to pick the 2016 equivalent of “affluenza defense.” Nonetheless, these notable legal phrases are new, did make news, and are not in Black’s Law Dictionary. Here are my six picks and definitions.

6. sextortion. noun. Blackmailing a person into engaging in sexual activity, often by threatening to post on-line nude or pornographic images or videos of a person unless he or she provides more such images or videos. The sextortionist often obtains the original images or videos by hacking into a victim’s computer or webcam. [sex + extortion]

In May 2016, the Brookings Institution released two reports detailing sextortion. It’s not a crime in any U.S. jurisdiction yet. Prosecutors use laws criminalizing extortion, computer hacking, stalking, and, depending on the victim, child pornography. Let’s see if sextortion ever becomes a crime in its own right.

5. benefit corporation. noun. A for-profit corporation, authorized by a majority of American states, with goals, in addition to profiting its shareholders, of benefiting workers, society, the community, and the environment. Also called “B corp,” “B corporation,” and “public benefit corporation (PBC).”

On New Year’s Day 2016, Tennessee joined the ranks of the 30 or so states that authorize benefit corporations.

4. spoofing. verb, noun. Financial manipulation in which a participant places an offer, order, or bid in a financial market without intending its completion, induces the market to rise, cancels the offer, order, or bid, and profits from the rise, such as from an order on the opposite side of the market. Illegalized by the Dodd-Frank Wall Street Reform and Consumer Protection Act, specifically 7 U.S.C. §6c(a)(5)(A).

The first criminal sentence for spoofing was handed down in July 2016. Michael Coscia, a futures trader, received a three-year prison term.

With the Republicans controlling Washington, D.C., and with Dodd-Frank possibly Number 2 on the list of legislation targeted for repeal, right after Obamacare, we’ll see how long “spoofing” is around.

By the way, Black’s Law Dictionary defines “spoofing” in a different context.

3. twibel. noun. Libel by tweet. (A tweet is a message conveyed by Twitter, the social media service). [tw[eet] + [l]ibel)

Many legal articles have used the word, but no appellate court has used it yet (other than citing an article with “twibel” in the title for a different point).

2. lawfare. noun. Abuse of law for political or military ends, often in international and human rights forums. [law + [war]fare]

This label is usually pejorative. One party’s “abuse” is another party’s “search for justice.” Carl von Clausewitz, the Prussian military theorist, said, “War is the continuation of politics by other means.” I say, Lawfare is the continuation of war by other means. So it goes.

1. adult children. This phrase jumped into the news before and after Donald Trump’s presidential election victory when people started wondering who would take care of his business interests to avoid legal entanglements. The phrase “adult children” has appeared in legal decisions, e.g., Russ v. Watts, 414 F.3d 783, 787 (7th Cir. 2005), but I have long preferred “adult offspring” or “adult sons and daughters.” Both appeared in U.S. v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991).

I think that “adult children” can confuse readers; it can sound like a contradiction in terms. The risk of confusion arises because “children” of course has two meanings: (1) people who are still in childhood and (2) daughters and sons, no matter their age.

“Adult children” is comparable to “minor major.” A concentration of study at a college (a major) that is relatively small (minor) is a minor major. Then there’s “old news.”

“Adult children” also reminds me of “man-child,” a term that is intentionally contradictory. Urban Dictionary, a website, defines it as a “grown man who is very immature….”

The more that “adult children” is in the news, however, the less the risk of confusion there’ll be. But I’ll stick to writing “adult offspring.”

Half of the notable legal phrases of 2016 are portmanteaus – combinations of two words: sextortion, twibel, lawfare. (And we’re saying goodbye to anther portmanteau, “affluenza.”) I think that says something about the potential catchiness of neologisms – new terms. We often like the wordplay of a portmanteau, admire its cleverness, and appreciate that the blended words helpfully hint at a portmanteau’s meaning the first time we encounter it.