Defendants sometimes argue, usually in sexual assault cases, that the complaining witness should not be called a “victim” during court proceedings. The basis of the argument is that using that term assumes the very fact to be proved, namely, the the defendant committed a crime against the complainant.
Several courts around the country have accepted versions of this argument:
- State v. Devey, 138 P.3d 90 (Utah Ct. App. 2006) (“We agree with Devey that in cases such as this – where a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are based almost exclusively on the complaining witness’s testimony – the trial court, the State, and all witnesses should be prohibited from referring to the complaining witness as ‘the victim.’” However, isolated reference to the “victim” by a single witness was harmless error.)
- Jackson v. State, 600 A.2d 21 (Del. 1991) (“The term ‘victim’ is used appropriately during trial when there is no doubt that a crime was committed and simply the identity of the perpetrator is in issue. We agree with defendant that the word “victim” should not be used in a case where the commission of a crime is in dispute.” However, use of the term by the prosecutor did not rise to the level of plain error.)
- Talkington v. State, 682 S.W.2d 674 (Tex. Ct. App. 11 Dist. 1984) (conviction reversed because trial court referred to the complainant as the “victim” in a rape case where the defense was consent)
As the above cases suggest, the argument has the greatest force when the defense is that no crime took place, for example because the sexual activity was consensual, or because the complainant fabricated the allegations. It is less powerful when the defense is mistaken identity, for in such a case, there is no question that the complainant is a victim — the only issue is who is responsible for that.
Notwithstanding the above cases, the law in North Carolina appears to be that the complainant may be called a “victim” even in cases where the defendant claims that no crime took place. The court of appeals’ recent decision in State v. Jackson is instructive. The defendant in Jackson impregnated his fourteen-year-old niece and was charged with statutory rape. His defense was that she drugged him and had sex with him. (In other words, he claimed that no crime had taken place.) The prosecutor and some of the state’s witnesses referred to the niece as the “victim,” as did the trial judge while instructing the jury. After he was convicted, the defendant appealed.
The court of appeals found that the state’s use of the term “victim” was, if error at all, not prejudicial, and that the court’s use of “victim” while reading the pattern jury instruction was not an expression of opinion and so was not error. (The court cited State v. McCarroll, 336 N.C. 559 (1994), which rejected the argument that the trial judge committed plain error when he referred to the complainant as the “victim” in jury instructions, and found that the instructions overall placed the burden of proof on the state.)
Because the court’s ruling on the state’s use of the term “victim” was only that any error was not prejudicial, Jackson falls short of being a complete green light to the use of that term. But the case holds that the court’s use of the term “victim” was not error at all, and it seems to me that there is less reason to worry about the state’s use of the term than to worry about the court’s use of it. Unlike the court, the state is not supposed to be neutral between the parties. And in any event, the very act of prosecuting the defendant signals the state’s belief that the complainant is a victim. So I tend to think that after Jackson, both the state and the court may refer to the complainant in a sexual assault case as a “victim,” though always with the understanding that the burden of proof is with the state.