Associate Lecturer Elyse Methven
Associate Lecturer Elyse Methven

The Unlawful Insult

Across Australia, it is a crime to use offensive, insulting, indecent or obscene language in or near a public place. These offensive language crimes are broadly drafted provisions that allow police and judicial officers significant discretion in policing and adjudicating offensiveness. Theoretically, these crimes can target a multitude of offensive, insulting, indecent or obscene words and phrases. In practice, police overwhelming target a small selection of swear words, often used towards police or in their presence.

The question of whether swearing in public should be a criminal offence was highlighted recently by a Sydney Local Court decision in  dismissed three offensive language charges. The charges had been laid against counter-protesters at a pro-“traditional” marriage march.  The counter-protesters had used the word “fuck” and its derivatives (including the phrase “Fuck Fred Nile”) in countering messages displayed at the rally, including:  “MUM + DAD = CHILDREN”, “What About the Rights of the Child?” and “Repent and be Baptised”. A police officer arrested the counter-protesters, arguing that the words used were not acceptable to be used in a park where children were present.

When the offensive language charges were heard in the Downing Centre Local Court in October 2016, Magistrate Bradd dismissed the charges. The Magistrate found that “A person does not use offensive language merely by using the word ‘fuck’.” Instead, a word’s offensiveness ultimately depends on the context in which the word is used. Magistrate Bradd provided examples of phrases such as “you fucking beauty”, for “fucks sake”, “fucking hell” as “just a few of the ways where the word is used” where such uses are unlikely to be offensive.

Elyse’s research seeks to interrogate common, long-held ideas about “offensiveness” in the legal system, the media and in popular culture. Using an interdisciplinary approach that traverses the disciplines of Law and Linguistics, Elyse argues that the legal system relies on a number of “folklinguistic” theories about swearing. For example, linguistic research on swearing suggests that those who use the “f-bomb” in protest do so because this word has unique and essential functions in the English language. As Elyse writes: “expletives can elicit shock, vent anger or frustration without resorting to physical violence and succinctly challenge ideas in a way that few words can”.

Other folklinguistic ideas about swearing include that :

Swear words are inherently harmful or dirty.

  • Swearing is a sign of laziness or an “impoverished vocabulary”.
  • Children need protection from swear words in a public place, or else they will “catch” the habit of swearing in the same way one catches a bad cold.
  • Society must censor or punish swearing to prevent increasing use of four-letter words.

Elyse aims to educate not only criminal justice practitioners and academics, but also the wider public about how offensive language crimes are police and punished. She asks that people question the bases upon which swear words are seen as dirty, harmful, and ultimately criminal. Elyse’s research also provokes politicians to reconsider whether swearing in public warrants criminal sanction.