In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears in legal contexts that precede the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is a central question to be decided. This usage matters in part because of its possible consequences: it risks obscuring and weakening the defense side of our two-sided system. Changing the language is thus a reasonable reform. But the usage matters also because of the underlying impulses, assumptions, and realities that it reveals. An exploration of those helps to illuminate broader concerns that require systemic, rather than merely linguistic, change.
Introduction
Scholars argue that we are in a post-trial world,1 and bemoan the circumstances under which the predominant form of criminal conviction—the guilty plea—is imposed:2 too early in the process,3 with too much haste,4 and with too little evidence,5 contestation,6 scrutiny,7 and regulation.8 But what if crime commission was being declared via another prevalent mechanism, which operates still earlier and quicker, and which garners even less attention, opposition, or restriction? This Article highlights an example of language use—the use of “victim” in pre-adjudication contexts9—and argues that it risks playing this role.10 If we have a victim, then we had a crime; if we had a crime, then we have someone who committed a crime. If language is doing this kind of work, a burden is being lifted inappropriately from the prosecution.
The predominant legal definition of a “victim” in criminal contexts—found in cases, statutes, and constitutions, and endorsed by Black’s Law Dictionary11—is a person who has been harmed by a crime, and yet legal uses of the word to refer to someone alleged to have been harmed by a crime are widespread. This issue has particular contemporary salience as the backers of state constitutional amendments, known collectively as “Marsy’s Law,” target state after state with provisions offering “victims’ rights” (including pre-adjudication rights).12 Kentucky passed a Marsy’s Law amendment in 2020;13 Wisconsin’s 2020 vote and Pennsylvania’s 2019 vote to do the same are the subject of ongoing litigation.14 This issue emerges also in trial practice, which reveals numerous instances of each of the relevant players—judges, prosecutors, defense attorneys, witnesses, and the drafters of jury instructions—referring, pre-adjudication, to the “victim” in the case.15
This tension between legal usage and legal definition—and indeed between legal usage and foundational premises relating to the presumption of innocence16—often goes unacknowledged.17 Marsy’s Law provisions typically define a “victim” as someone who has been harmed by a crime,18 even while explicitly extending their protections to those who are pre-adjudication.19 In litigation, powerful voices have challenged this usage—Kobe Bryant, Bill Cosby, and Jeffrey Epstein have all been embroiled in this20—but even when courts recognize the error their most frequent conclusion is that it was harmless.21
Analysis of this phenomenon is critically important, however. First, this needs to be understood as a language usage that is far from isolated. Throughout our legal language, and often unchallenged, are terms that appear to prejudge aspects of the adjudicative process. These include the widespread use of “offender” in place of “alleged offender,”22 “offense” in place of “alleged offense,”23 and “recidivism” to refer to re-arrest.24 Second, it is important to study these language usages because of dangerous tendencies that their widespread use (and the acquiescence thereto) both exacerbates and reveals.
These kinds of usages and the acquiescence thereto both exacerbate and reveal dangerous tendencies such as the following: assumptions of guilt that bypass the evidentiary process; assumptions that claims by law enforcement or by complainants equate to crimes; the dominance of law enforcement narratives and vocabulary; and assumptions that law enforcement accounts are truthful, accurate, and neutral. These tendencies threaten the rights of defendants, the viability of defenses, and the role of defense counsel.
The role played by the word “victim” also highlights some of the inadequacies in our treatment of those who are harmed by crime. The use of the word “victim” (like the criminal system itself) has come to be seen as a way of bestowing dignity and respect.25 Yet within our criminal system what is offered is, at best, a partial and instrumental form of dignity and respect, one that is tied to a willingness to cooperate,26 and one that represents a paltry substitute for deeper forms of dignity and respect.27
This Article considers two possible ways to tackle these concerns, starting with a reformist approach. One might focus on the risks that this usage exacerbates, and recommend language change in response. The Article proposes reforms addressing the language use of judges, prosecutors, defense attorneys, the police, and those responsible for jury instructions. This reform is far from straightforward, however, given the widespread family of usages that reform of this type would have to counter, the lack of obvious alternative terms, and the risk that this kind of reform effort might entrench aspects of the existing system.28
A second option is to focus on the impulses that lie behind such usages.29 This Article mentions a variety of possibilities, each of which connects this issue with broad areas of concern regarding the criminal system. First, the Article suggests that this word has come to bear the weight of signaling respect and dignity for those claiming crime—weight that the system more broadly has failed, and still fails, to bear. Second, like many common terms, it signals premature assumptions of criminal wrongdoing. Third, it hints at the pervasiveness, dominance, and perceived neutrality of law enforcement framing. Fourth, by deploying the language of crime even absent a crime as defined by law, it sheds light on a “rough and ready” or “I know it when I see it” concept of crime, which exists in fascinating and problematic tension with our legal definitions. And finally, it does something simpler: in suggesting that the line of adjudication is blurred, it reflects our reality. Lines are frequently drawn in our system that play a role more central than the supposedly central line of adjudication: lines drawn at arrest and charge, and bail setting, and indeed at birth.
While these potential impulses behind the word open up expansive areas of inquiry, it is important to start to unpack them. As calls for abolition enter the mainstream,30 one fear that they may spark is the fear of giving up what we have. To evaluate the promise of abolition requires an accurate examination of what we actually have; requires shedding myths.31 And if we find that our system is indeed one where in many ways that central line of adjudication is a blur, where we aren’t ruled by definitions, or by other structures said to make the process fair and the punishment justified, where judgments of guilt do not await the point of adjudication, we may be more willing to explore other ways—less contingent ways—of according respect and dignity.
Part I examines two legal settings in which the pre-adjudication use of “victim” repeatedly appears: first, the various state constitutional amendments that bestow the language of “victim” and attendant rights on those who are pre-adjudication, and second the litigated uses of “victim” to refer to complaining witnesses during trial.32 It highlights not just the dangers posed by this usage, but the troubling tendencies revealed by this usage and by instances of acquiescence thereto. Part II expands on the dangers, examining not just threats to defendants and defenses, and thus to our two-sided adversary system, but also the impoverished nature of this usage (and of criminal prosecution more broadly) as a means of bestowing dignity and respect. Part III discusses potential reform efforts aimed at tackling these dangers. Part IV posits that if reform is attempted, it ought to be paired with efforts to understand some of the assumptions, impulses, and forces that perpetuate this usage; it presents some possibilities, before considering their implications for current discussions of abolition.
I. Pre-Adjudication Uses of Victim
This Part examines two contexts in which “victim” is used before there has been an adjudication of guilt: state constitutional amendments and trial litigation. First, a few notes about framing and scope. “Victim” is of course used in a variety of contexts—some legal, some not, and within legal contexts some criminal and some not. As one court has said, “[t]he term ‘victim’ is a “malleable term” the meaning of which depends on the context in which it is used.’”33 To the extent possible, this Article attempts to focus on those contexts where one has reason to expect that a legal definition is in play. (Jury instructions are a particularly clear example). Given this focus, one can turn, as many courts do,34 to Black’s Law Dictionary for a working definition.35 For the last twenty years, Black’s has defined “victim” as “a person harmed by a crime, tort, or other wrong.”36 Even this may be a somewhat more capacious definition than is appropriate in many of the contexts discussed in this Article, where one might conclude that “a person harmed by a crime” is the relevant definition.
In addition to the dictionary definition of “victim,” one has to acknowledge the variety of associations or overtones that accompany the word. To call someone a “victim” may be to trigger a variety of assumptions: if someone is a victim then they may seem to need sympathy,37 protection and help,38 and indeed “justice.”39 They are on the side of right.40 They are not supposed to be blamed or shamed.41 Even while focusing on the ways in which “victim” appears to pre-judge crime commission, this Article does not ignore these other aspects of the word’s meaning. Indeed, they may help illustrate some of the significance of the prevalence of “victim” pre-adjudication: the more we become accustomed to thinking of complainants as victims,42 the more natural it may seem to guarantee them rights.
Finally, there are all sorts of objections to the word “victim” other than the one that this Article addresses. It may be said to convey an unhelpful sense of weakness, damage, subordination, or lack of agency.43 Those objections have received considerable scholarly treatment.44 To the extent possible, this Article puts them to one side, to focus on one that has not: the implications of the usage—and of its widespread acceptance—for those claiming and accused of crime, and for our systems of adjudication.
A. State Constitutional Amendments
More than thirty states have amended their constitutions to add “victims’ rights” provisions.45 None of these amendments restricts its applicability to the post-conviction context,46 and indeed the trend is toward pre-adjudication rights being spelled out with more force and more numerosity.47
These amendments have arrived in two waves, the second of which is still swelling. The first wave began in 1982, the year in which President Reagan’s “Task Force on Victims of Crime” produced a lengthy report on “victims’ rights.”48 The Report appended a proposed constitutional amendment, which was geared at the federal Constitution’s Sixth Amendment,49 but which acted as a catalyst for state constitutional amendments.50 California passed one that same year,51 and thirty-one states followed in the 1980s and 1990s.52
Of that first wave of amendments, while some do not make it explicit that they apply pre-adjudication,53 others make clear that they do.54 As regards South Carolina, for example, “a person becomes a victim the instant the crime is committed or attempted and he or she suffers a harm.”55 That state’s supreme court has listed several rights that “occur prior to indictment,”56 and has specified that “[i]f the case proceeds through indictment, the victim gains more rights.”
Examples of pre-adjudication rights include a “right to be reasonably protected from the accused through the imposition of appropriate bail or conditions of release by the court,”57 a “right to timely disposition of the case following the arrest of the accused,”58 a right to “refuse an interview, deposition, or other discovery request by the defendant,”59 a right to “confer with the prosecution . . . before trial or before any disposition of the case,”60 and a right to “reasonable notice and to be present and heard during all critical stages of preconviction and postconviction proceedings.”61
The second wave consists of amendments setting out state versions of “Marsy’s Law.” Marsalee (“Marsy”) Nicholas was a twenty-one-year-old woman, who was killed by an ex-boyfriend, Kerry Conley, in 1983.62 While Conley was out on $100,000 bail, Nicholas’s mother apparently saw him at a grocery store; she had not previously known that he was at liberty.63 This lack of notification spurred legal change. Nicholas’s brother, Henry Nicholas III, is a billionaire who proceeded to found Marsy’s Law for All LLC,64 which aims to pass “victims’ rights” amendments to state constitutions,65 as well as federally. He reportedly spent a total of 99.3 million dollars to support Marsy’s Law ballot measures between 2008 and 2018.66 Marsy’s Law provisions are on the books in twelve states,67 and the rate at which they are arriving has intensified.68 Marsy’s Law provisions passed in all six states that had them on their 2018 ballots.69 A Pennsylvania version was on the ballot in November 2019 (because of pending litigation,70 votes have not been certified);71 Wisconsin and Kentucky voters adopted Marsy’s Law amendments in 2020, though litigation is ongoing in Wisconsin.72 Other states are said to be considering similar steps.73 These amendments adhere more or less closely to a model provision promulgated by the LLC.74 They tend to offer a longer list of rights than the provisions passed during the first wave,75 and (in contrast to the first wave) each of them makes explicit its applicability pre-adjudication.76
In addition to their considerable successes, the Marsy’s Law backers have encountered several obstacles. Legislatures in New Hampshire, Alabama, and Idaho voted down Marsy’s Law proposals.77 In addition, state courts struck down proposed amendments in Kentucky and Montana,78 and another has granted a preliminary injunction precluding the tabulation and certification of votes in Pennsylvania.79 Whereas the rulings in Kentucky and Montana focused on procedural violations,80 the Pennsylvania court emphasized the enormity of the implications of Marsy’s Law for criminal defendants.81 Indeed, the court concluded that “it is clear that the Proposed Amendment, by its plain language, will immediately, profoundly, and irreparably impact individuals who are accused of crimes, the criminal justice system as a whole, and most likely victims as well.”82 The court noted the amendment’s assertion that the rights contained therein were to be “protected in a manner no less vigorous than the rights afforded to the accused,”83 and listed some of the hazards for defendants’ rights: the right to full and effective investigations would be harmed, as would the rights to confront witnesses and to enforce subpoenas compelling cooperation.84 The proposed amendment would also alter the right to a speedy trial, the right against double jeopardy, the right to pretrial release, the right to post-conviction relief, and the right to appeal.85 The Supreme Court of Pennsylvania affirmed the injunction, and litigation continues.86
The fact that both sets of constitutional provisions offer pre-adjudication rights to “victims” (sometimes implicitly in the first wave, but always explicitly in the second) presents a tension, given that the provisions might appear to assume commission of crime before adjudication has occurred. States address this in various ways, all problematic. Georgia does the most to avoid the problem of apparent prejudgment by defining “victim” to mean “alleged victim,”87 though this willingness to define a term to mean something quite different from its legal dictionary definition is strange.88 Oregon also does more than most states to reveal that “victimhood” rests on something less than an adjudication, and to gesture at the power of law enforcement to make an authoritative decision about who is a “victim.” Oregon’s constitution defines “victim” to mean “any person determined by the prosecuting attorney or the court to have suffered financial, psychological or physical harm as a result of a crime . . . .”89 Many states instead simply define “victim” to mean someone who has been harmed by a crime;90 the fact that they do that while guaranteeing pre-adjudication rights suggests a willingness to treat a claim of crime as the same as the occurrence of a crime. For example, the Arizona provision states that “‘[v]ictim’ means a person against whom the criminal offense has been committed.”91 At the same time, in Arizona, victims’ rights “attach when a defendant is arrested or formally charged” (that is, before adjudication has occurred).92 Others accord pre-adjudication rights to “victims” without defining the term.93 Given that the core dictionary definition of “victim” in criminal contexts is someone against whom a criminal offense has been committed,94 this again suggests a willingness to treat a claim of crime as the same as the occurrence of a crime.
In reviewing these constitutional provisions, one finds a core set of recurring rationales. Those rationales include a desire to offer “due process” to “victims,”95 as well as things like dignity, respect, and fairness.96 The theme of balance is also a prominent,97 and problematic,98 one. The Final Report of the President’s Task Force on Victims of Crime (released in 1982) repeatedly invoked an interest in “balance,”99 and stated that the Task Force’s “sole desire [was] to restore a balance to the scales of justice.”100 The Task Force was careful to say, however, that it did not intend to threaten the protections held by criminal defendants.101 In the first wave of constitutional amendments one again finds explicit commitments that defendant protections should not be lessened.102 Florida’s 1988 amendment, for example, mentioned that it was not to interfere with the constitutional rights of the accused.103 But in the second wave that kind of caveat is gone. Florida’s 2018 amendment says nothing along those lines.104 The same is true of the Marsy’s Law model amendment.105 Rather, in language adopted by Florida and North Dakota,106 the model amendment declares an aim “to ensure that crime victims’ rights and interests are respected and protected by law in a manner no less vigorous than the protections afforded to criminal defendants and juvenile delinquents . . . .”107
One can trace a shift not just in this kind of overall stance but in the specific rights that have been declared. As Professor Mosteller indicates, a shift has occurred within the “victims’ rights movement,” from calls for greater participation rights to initiatives that directly assist the prosecution, and conflict with defendants’ rights and protections.108 The Marsy’s Law model amendment, for example, gives rights to “victims” to influence bail decisions and plea decisions, and to refuse to provide discovery:109 all areas in which “victims’ rights” may be invoked to the detriment of defendants. The Wisconsin amendment that was in place before that state’s recent vote gave “victims” the “[o]pportunity to attend court proceedings unless the trial court [found] sequestration [was] necessary to a fair trial for the defendant;”110 the Marsy’s Law amendment gave them the right “to be present at all proceedings involving the case.”111 Perhaps the future appears in Missouri’s legislative declaration that the state’s policy is that “the victim’s rights are paramount to the defendant’s rights.”112
B. Litigation Concerning the Pre-Adjudication Use of “Victim”
As regards courtroom uses of “victim” pre-adjudication, judges have been analyzing this issue since at least 1860,113 when the Supreme Court of California reviewed a self-defense case, People v. Williams.114 The trial judge, apparently seeking to guard against jury discrimination, had blundered into a different minefield. He charged the jury as follows:
The fact that the deceased was a Chinaman gave the defendant no more right to take his life than if he had been a white person; nor did the fact, if you so find, that the defendant was seeking to enforce the collection of taxes against another Chinaman, or even against his victim . . . .115
Even while reversing on another issue, the court criticized the instruction in these terms:
The word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. It seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing. . . . [I]t is apparent that in a case of conflicting proofs, even an equivocal expression coming from the Judge, may be fatal to the prisoner. When the deceased is referred to as “a victim,” the impression is naturally created that some unlawful power or dominion had been exerted over his person. And it was nearly equivalent, in effect, to an expression characterizing the defendant as a criminal. The Court should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression. The experience of every lawyer shows the readiness with which a jury frequently catch at intimations of the Court, and the great deference which they pay to the opinions and suggestions of the presiding Judge, especially in a closely balanced case, when they can thus shift the responsibility of a decision of the issue from themselves to the Court. A word, a look, or a tone may sometimes, in such cases, be of great or even controlling influence. A judge cannot be too cautious in a criminal trial in avoiding all interference with the conclusions of the jury upon the facts; for of this matter, under our system, they are the exclusive judges.116
The pre-adjudication usage of “victim” is not just long-standing, but also pervasive. It appears in jury instructions (and the pattern instructions, indictments and statutes from which they often draw),117 verdict forms,118 judicial remarks,119 prosecutorial comments and questions,120 opening statements,121 closing arguments,122 voir dire,123 defense questions and arguments,124 and witness testimony.125
A review of this case law rebuts the assertion that there is nothing to worry about here. A wide variety of legal grounds for objection have been raised,126 in regard to usages by judges,127 witnesses,128 defense attorneys,129 and prosecutors.130 Courts have found this kind of objection to have merit in all sorts of cases,131 including cases implicating the use of “victim” by defense attorneys,132 prosecutors,133 judges,134 and witnesses.135 Indeed, in some instances, defense attorneys have been able to obtain preemptive relief in the form of judicial “language orders” prohibiting certain usages.136 In pre-trial litigation regarding a sexual assault charge, Kobe Bryant was successful in obtaining an order excluding the word “victim” at trial, in favor of “alleged victim” and the woman’s name.137 The court noted that “the common understanding of the term ‘victim’ certainly implies that a person has been the subject of a particular wrong or crime and its use under these circumstances could improperly suggest that a crime had been committed such that the presumption of innocence might be jeopardized.”138
However, the universe of published opinions—of course, a limited picture of what occurs in court and even of what happens at trial139—reveals many instances of apparent acquiescence to this usage. Defense arguments for a new trial are frequently denied, even when judicial orders to avoid this usage have been repeatedly violated,140 whether by judges,141 defense attorneys,142 prosecutors,143 witnesses,144 or some combination thereof,145 and even when, in the very act of defining the governing law by means of jury instructions, judges have identified the complainant as a “victim.”146 Courts may recognize that the potential for prejudice is “obvious,”147 but they frequently find it to be unrealized.148
Judges often rule against the defense by drawing distinctions, and making arguments, that are not just problematic means of resolving individual cases, but troubling indications of how they view our system. For example, perhaps the most common distinction drawn by judges ruling on this issue is a distinction between cases where the defense was contesting that any crime occurred (as in a self-defense scenario), and cases where the defense was “not contesting” that a crime occurred—but rather arguing that the defendant was wrongly accused.149 Courts are frequently willing to find error in the first scenario,150 but not in the second scenario.151 After all, the courts reason, if no one is contesting that a crime occurred, then we do have a victim.152 This justification appears frequently, with no indications that it is ever challenged. However, a challenge is due. When the defense argument is that the wrong person has been charged, it is not the job of the defense attorney (and it may well be distracting and unhelpful) to take a stance on whether a crime occurred. Her “failure to contest” the concept that a crime occurred should not be used as some sort of “concession” that a crime occurred. Her job is to develop a defense and pursue it. If the defense is that the wrong person has been charged it would be a waste of time and money, and perhaps in derogation of her responsibilities to her client, to spend time investigating all possible defenses that might possibly be pursued by some hypothetical other defendant so that she can say that none applied and that there was indeed a crime. The job of establishing that a crime occurred is that of the prosecution.
Courts’ treatment of the word “victim” sometimes reveals a troubling inability fully to comprehend the justificatory nature of self-defense claims.153 We see this when they conclude that there is no error (or no prejudicial error) in calling the person who was wounded or killed by the defendant a “victim,” given their injuries. It may be understandable that if someone was hurt or died a court might say of that person “of course we have a victim.” That sort of thing happens all the time in common parlance: we talk of “homicide victims,” even if all we know about the circumstances is that people were killed.154 But in a legal context, where justificatory defenses such as self-defense may apply, it is problematic. So, for example, in cases involving self-defense claims, courts will sometimes quote the Black’s Law Dictionary definition of “victim” (someone “harmed by a crime, tort, or other wrong”) and even after doing so will conclude that the complainant certainly was a “victim.”155 Judges are missing something crucial about self-defense claims, however.156 In such cases, there may be a dead body, but under the law there may be no crime, tort, or wrong.157 This judicial approach raises questions about the role and value assigned to justificatory defenses, and to the attorneys tasked with raising them, within our criminal system.158
The case law also reveals judicial tendencies to defer to law enforcement. A common ground for rejecting defense arguments about the word “victim” is that when the word is used by police witnesses it is just the way that they talk—just “synonymous with the complaining witness”159—and that we should not ask police officers to do things differently.160 This judicial assertion about synonymity was first made (without support) in a Delaware case,161 and numerous cases in numerous jurisdictions have recycled it,162 again without support other than that case, and without discussing the question of whether, even if it was accurate in one jurisdiction, it might not be accurate elsewhere.163 Among other problems with this assertion, it appears to ignore the fact that police officers are trained and instructed on how to testify;164 we do not just haul them into court fresh from the beat and then penalize them when they talk in the only way they know how.
In rejecting defendants’ arguments, courts sometimes reveal a troubling view that the word “victim” is being used “in a neutral manner,”165 as a straightforward way of referring to the complainant.166 It is problematic if the government’s stance has come to seem the neutral stance.167 Since it really does not seem to be “neutral” here168—“victim,” after all, is the word for someone who has suffered a crime—perhaps what is meant is something more like “normalized” or “usual.” That is not really a salve; rather, it suggests still more reason for concern, if this presumption that a crime occurred has become so commonplace as to go largely unnoticed.169
While multiple courts including and since the Williams court in 1860 have been clear on the core risk for defendants—that the word “victim” could be seen as resolving a crucial jury question170—others seem unable to identify the threat correctly. In Texas, a line of precedent has developed that rejects defense arguments regarding the use of “victim” on the basis that “more inflammatory” words have failed to inspire judicial relief: “butcher,” “killer,” “slaughter,” “sex slave,” and so on.171 These are not necessarily nice words, but the problem with “victim” in this context is less that it might inflame the jury, and more that it might eviscerate the jury’s fact-finding function. This is a different problem, but not necessarily a “milder” usage than the other ones that Texas has upheld.172 As further indication that the Texas courts sometimes struggle to see the core issue, one court supported its rejection of an ineffectiveness of counsel claim based on defense counsel’s pre-adjudication use of the word by saying that “appellate courts in Texas have even used the word ‘victim’ in writing their opinions.”173 The court’s citation was to a case upholding a conviction: in other words, a case in which the procedural posture did not implicate the relevant concern.174
No doubt some of these usages are more troubling than others, and on the more problematic end of the spectrum lie jury instructions. The use of the word “victim” in these instructions—distillations of the law that need to be constructed with care—is particularly concerning because of its potential consequences, because appellate courts often endorse it, and because it suggests how deeply embedded it is in legal thought. One might assume that courts would take these usages particularly seriously, since if one trusts the jury’s common sense—as courts in this area urge us to do175—the jury must know that these are not casual or offhand references. But here, judges are frequently able to reject defense arguments precisely because judges are laying out considered bodies of law.176 A number of courts have taken the position that if a judge’s instructions parrot the language of a statute, that judge is likely to be in a safe harbor vis-à-vis reversal.177 (Other cases take the same position with regard to judges who are using pattern instructions).178 That justification is problematic. A criminal statute, of course, defines a crime. It may well be unobjectionable (at least as regards this Article’s focus) to use “victim” in saying what a crime is, because if we have a crime under the statute in question we can say that we have a victim.179 But to lift a statute into a jury instruction in a way that applies the language of “victim” to the complaining witness is to risk endorsing a premature determination of criminal victimhood, and potentially of guilt.
Consider, for example, a recent North Carolina Supreme Court case involving jury instructions.180 The defendant had requested that the words “alleged victim” instead of “victim” be used.181 That request was denied, and the pattern jury instructions were read to the jury.182 Those pattern jury instructions repeatedly required the jury to determine whether certain facts were true about “the victim,”183 thus assigning to the complaining witness the term “victim” even in the context of asking the jurors to decide whether the alleged crimes had been committed. So, for example, the jurors were to assess whether the following things had been established beyond a reasonable doubt: “First, that the defendant engaged in a sexual act with the victim. . . . Second, that at the time of the acts alleged the victim was a child under the age of 13. And third, that at the time of the alleged offense the defendant was at least 12 years old and was at least four years older than the victim.”184 The Court of Appeals had found that the trial court erred in refusing the request to use “alleged victim”—it reasoned that whether the complaining witness was victimized “was “a disputed issue of fact for the jury to resolve”185—but the state Supreme Court reversed.186 After all, it said, the trial court was sticking largely with the pattern jury instructions, and pattern jury instructions are surely a safe harbor against reversal.187
Even when courts are persuaded that the use of “victim” was error, the obstacles to relief frequently mean that nothing changes. It is common for courts in this area to find that the defendant has failed to meet his or her burden—each phrased in terms more forbidding than the last188—of showing that the error was prejudicial, and thus has failed to win a new trial.189 And indeed, these cases make one wonder, as harmless error standards often do,190 how one could ever meet such a standard:191 how could one plausibly show that the word “victim,” even when repeated multiple times by multiple parties, had the kind of influence that these standards demand?192 Moreover, to defeat defense claims, judges have an almost fail-safe form of harmless error argument to deploy.193 If jury instructions were given that laid out the correct standards as regards the phenomena that this usage implicates—the presumption of innocence,194 the burden of proof,195 the jury’s role,196 the judge’s role,197 the need for the jury to be unbiased,198 the fact that opening statements and arguments are not evidence,199 and so on—then, regardless of social science findings to the contrary,200 courts are to presume that those instructions were followed,201 and that they proved curative.202
The difficulty of persuading judges that defendants suffered prejudice presents a huge obstacle to ineffectiveness of counsel claims, whether the claims are based on defense counsel’s failure to object to this usage, or defense counsel’s adoption of this usage, or both. Many such claims fail at the first of the two steps required under Supreme Court case Strickland (that is, showing deficient representation);203 almost all fail at the second step (that is, showing resultant prejudice).204 A rare—perhaps unique—example of defense success came in the Ohio case State v. Almedom.205 The appellate court found prejudicial error where defense counsel had remained silent in the face of repeated judicial descriptions of the complaining witnesses as “victims,” some of which occurred before any testimony began.206 This case, as do many presenting this issue, involved horrible alleged facts.207 Whereas for some courts these alleged facts seem to act as a reason to reject defense claims,208 for this court they highlighted the importance of a trial in which guilt was not, and did not appear to be, predetermined. The court explained its reasoning as follows:
The average person is disgusted by the idea of anyone sexually abusing young children. Sefe Almedom was portrayed as such a disgusting person long before any evidence was presented. The trial court judge, who is viewed as the ultimate authority figure in the courtroom, in essence told the jury more than once that Almedom had victimized three young girls. Almedom’s claims that the accusations flowed from the hatred of the girls’ mother toward him following the end of his emotional relationship with her could not be fairly and impartially evaluated by the jury after the jury had been told repeatedly by the trial court judge that the girls were victims. All the while, Almedom’s defense counsel, who was supposed to be advocating for Almedom’s well-being, stood idly by and made no objection to the trial judge’s accusation that his client was a child abuser. The case was essentially decided before the first words were uttered by the witnesses for the State of Ohio and long before Almedom had a chance to deny the accusations and to submit a theory as to why the accusations were being made.
We are not saying that the girls are not being truthful. We are not saying that Almedom was being truthful. We are saying that the conduct of the trial judge when linked with the deficient conduct of defense counsel denied Almedom of the opportunity for a fair trial—a trial in which his defense could be fairly considered.209
This intermediate court encapsulated in two short paragraphs many of the key concerns surrounding this issue: the risk of judgments or assumptions of guilt that precede and moot the evidence;210 the pressing need for a fair trial even (or especially) in the face of awful alleged facts; the particular horror of a situation in which the judge (symbol of fairness) puts her imprimatur on a prosecution narrative; the particular horror of a situation in which defense counsel (symbol of protection) acquiesces thereto; the ever-present fear that to urge caution about the premature use of the word “victim” will be understood not as defending the constitutional system but as attacking the truthfulness of those alleging harm;211 and the fragility of defenses in a regime that is inclined to endorse the prosecutorial account.212
Thus, one sees in this litigation just how firmly ground into our law and legal thinking the merger of “victim” and “alleged victim” is. It is there in many jury instructions.213 It is there in the words of the prosecutor, and the court, and defense counsel214—even when orders banning its use have been issued. Judges often say their use was inadvertent,215 as do defense attorneys,216 and in one instance, after violating judicial orders again and again, the prosecutor said she just could not help herself.217 She could not understand her reflexive repetition of this word.218
II. Where Might this Usage Lead?
Part I demonstrated that the use of “victim” in the pre-adjudication context, and thus an apparent willingness to treat an accusation as a crime, is widespread. It explained that in the litigation context courts often conclude that even if the pre-adjudication use of the word “victim” is error, the error is harmless; that this is just “semantics,”219 as if the law was not created by language.220 In this Part, I resist this acceptance, analyzing concerns that may be exacerbated by this widespread usage, and by the acquiescence with which it is often met.
A. A Paltry Substitute
“Victims’ rights” provisions often cite the values of respect and dignity,221 and since one needs to fall within the “victim” category to be able to claim those rights, the word “victim” itself has been interpreted as having the potential to offer respect and dignity.222 As mentioned above,223 it is a multi-layered word that, in addition to its legal meaning, can all at one time express that a person needs help,224 deserves protection,225 is telling the truth (in contrast to a defendant who is not),226 is accurate,227 and is in the right (in contrast to the defendant “victimizer,” who is in the wrong, and is indeed a bad person).228 Some or all of these layers of meaning may make the word desirable,229 particularly when seen in the context of the multiple people—particularly women,230 particularly people of color231—whose accounts of harms and crimes have in many instances been devalued, distrusted, and challenged; whose champions have in many instances been absent.232
Thus in one recent Arizona case, a complaining witness sued the presiding judge after he denied her request to preclude reference to her as the “alleged victim.”233 She argued that “because the [state] Victims’ Bill of Rights only uses the term ‘victim’ to refer to the crime victim, there is an implicit right to be referred to as such throughout the proceedings.”234 She noted that the Arizona State Constitution states that every victim in Arizona has the right to be treated throughout the criminal justice process with “fairness, respect, and dignity,”235 and argued that “alleged victim” violates that right “because it calls into question whether a crime was committed and whether someone is in fact a victim.”236 The court rejected her demand, finding that in the pre-adjudication setting “alleged victim” is accurate, given that “the case involves an alleged criminal act against an alleged victim.”237 (The court declined to comment on the tension between this accurate statement and the “victim” language used pre-adjudication by the state’s constitution and statutes.238) However, the court went on to disclaim the notion that the term “alleged victim” is always appropriate, and to leave open the possibility that it might in certain cases “undermin[e] the victim’s right to be treated with fairness, respect, and dignity.”239
One may wonder whether the word “victim” and the associated legal entitlements are paltry substitutes for more meaningful sources of respect and dignity. Many scholars have noted that legal entitlements offered to “victims” ostensibly to aid them are limited in the extent to which they help, given that they may be motivated less by true understanding of, or interest in, the needs of those claiming harm,240 and more by the interests of the state.241 An examination, for example, of the type of “victim” who is eligible for state compensation reveals that it is frequently the “innocent” and compliant: bars to compensation for “victims” include the fact that they had a particular type of criminal record,242 or were incarcerated or “engaged in an illegal act” at the time of the alleged crime,243 or were not up to date with financial obligations,244 or in compliance with vehicle insurance laws,245 or that they did not report the alleged crime swiftly enough,246 or did not cooperate with the authorities in its prosecution.247 Respect and dignity, if in fact they are offered, are offered partially and with conditions.248 Indeed, some states make their motivations plain, acknowledging that they are offering what they offer to “victims” in order to facilitate their assistance with prosecution,249 and sometimes even asserting a “duty” on the part of “victims” to provide that assistance.250
Thus, the expansion of this kind of “victim” usage and of the rights attached thereto brings troubling consequences for both those charged with crime and those who have suffered from crime. Defendants are in danger, not only because of all the ways in which this language usage might further condition us to assume criminal wrongdoing,251 but also because many of the new rights offered to complainants—to resist discovery,252 to be present at all proceedings,253 to weigh in on bail and on pleas,254 and so on—have the potential to detract from the protections offered to defendants pre-adjudication.255 At the same time, more and more weight may be placed on the term and the associated rights as sources and indications of “respect” and “dignity,” even though those who have suffered from crime might be better supported by other means of honoring those values.
B. Claims Being Treated like Crimes
One way of understanding many of these usages is that they treat claims as equivalent to crimes.256 This Subpart will analyze some of the dangers attending this kind of treatment, starting with law enforcement claims, then looking at complaining witness claims, and then considering dangers that exist in both contexts.
1. Law Enforcement Claims
One thing that appears to be happening in many of these usages is that law enforcement claims that we have a crime, and thus that we have a “victim,” are being treated as sufficient to establish that there was a crime, and thus a “victim.”257 Some states, for example, are explicit that a “victim” is someone whom the government says is a “victim.”258 Oregon voters recently approved a constitutional amendment that defines “victim” as anyone “determined by the prosecuting attorney or the court to have suffered direct financial, psychological or physical harm as a result of a crime.”259 This is a definition that risks erasing the defense side of our two-sided adversary system,260 and that seems to have inspired a little embarrassment among the state’s judiciary. In a recent opinion, one appellate judge airbrushed away the problematic part of that definition (willing even to sacrifice syntax to do it), stating that “‘[v]ictim’ means any person . . . to have suffered direct financial, psychological or physical harm as a result of a crime . . . .”261
Some might say that the treatment of law enforcement claims as constituting crimes is realistic,262 but it is problematic.263 First, it can contribute to the dominance of law enforcement vocabulary in legal and other contexts,264 and thus, as will be discussed below,265 can contribute to the dominance of law enforcement framing. Second, it contributes to an assumption of law enforcement truthfulness and accuracy.266 This assumption is fueled by the common presentation of law enforcement accounts as definitive,267 but conflicts with both our adversary system and documented instances of law enforcement dishonesty.268
2. Complaining Witness Claims
These usages also reveal examples of the treatment of claims by complaining witnesses as sufficient to establish crimes. Every state has “victim compensation” funds,269 and they frequently allow claims even in the absence of any arrest or prosecution.270 “Victims” can declare themselves to be such,271 even when “victim” is defined to mean someone who has suffered a crime.272 In some “victims’ rights” provisions, the rights become available “at the time of [the] victimization,”273 as opposed to the point at which law enforcement has intervened to assert the claim itself.274
As mentioned above,275 one needs of course to understand the context that helped to permit the development of “victims’ rights,” a context that included—and still includes—a tendency to disbelieve certain kinds of claims from certain groups of people.276 The call to #BelieveWomen, for example, stands in contrast to historical and current tendencies to do the opposite.277
It is problematic, however, to move from acknowledging our history of discrediting of claims by women and other subordinated groups to a stance that a complaining witness’s claim establishes a crime.278 To analyze this further, it may be helpful to isolate the particular component parts of such a stance. To identify a claim with a crime is a) to assume the claim’s truthfulness;279 b) to assume its accuracy; and c) to assume that the law and facts align in such a way that a crime, as defined by the law, can be said to have occurred. Much of the debate in this area focuses on a).280 Those who support the broad use of the term “victim,” and oppose attempts to restrict it, often argue in terms of credibility: they want the term as an affirmation of truthfulness, and they characterize resistance to the term as an attack on truthfulness.281 Presumably people of all sorts sometimes lie,282 and are sometimes inaccurate, but let us assume the opposite: let us assume that all complaining witnesses are truthful and accurately describe their experience. The much bigger issue—one that goes largely unacknowledged in this context, and whose disregard threatens core structures of criminal law—is c). The accounts of complaining witnesses, even if assumed to be truthful and accurate, may not track the relevant elements, and defeat any relevant defenses, in a way that corresponds to a crime as defined by law.283 This will be discussed further below.284
3. Claims of Either Sort
To treat pre-adjudication claims of crime, whether made by law enforcement or by complainants, as equivalent to crime, is—among other issues—to permit one side’s account to become the full story. To assume the truthfulness of a claim may well translate into assumptions of untruthfulness of the person facing criminal accusations.285 But, as suggested above, even if we assume truth and accuracy as regards the claim, there is a far more concerning issue—more concerning in part because it is rarely discussed. This issue is that identifying a claim (whether by law enforcement or by a complainant) with crime threatens the viability of core components of the criminal law, such as defenses and mens rea. Complainants or law enforcement may speak with absolute honesty and accuracy, but we rely on a two-sided adversary system because those qualities are not enough:286 our criminal law encompasses defenses whose assessment may require hearing from the defense; our criminal law encompasses elements such as mens rea, whose assessment again may require hearing from the defense.287 With every endorsement of a regime in which law enforcement’s (or a complaining witness’s) claims, no matter how truthful and accurate, are taken as establishing a crime, we threaten further to erode these core definitional components of crime. As a result, we threaten to reduce interest in providing adequate defense resources and protections.288 We are at risk of adhering more to lay senses of what “crime” is than to formally defined (and often narrower) notions of what “crime” is.289 As one example, the case law again and again reveals judges who are unable to appreciate that in a self-defense case there may be no crime, no wrong, and no tort, however grievous the injuries caused by the defendant may have been.290
To treat pre-adjudication claims of crime, whether they are made by law enforcement or by complainants, as equivalent to crime is often to assume prematurely the guilt of the person alleged to have committed a crime,291 and to do so via means other than the formal systems and tools set up for adjudication.292 Again, tendencies toward such premature judgments appear all over the law and legal scholarship—note, for example, the frequency with which judges, legislatures, and legal scholars use the word “offender” to refer to someone who has merely been arrested or charged293—and need to be resisted.294
III. Possible Reforms
Part I examined a range of legal contexts in which uses of “victim” are in tension with a key definitional component of the word and key components of the criminal system. It revealed three methods commonly used to address that tension: first, ignoring it; second, defining “victim” in a way that lacks semantic support (i.e. as “alleged victim”); or third, defining “victim” in a way that lacks adjudicative support (i.e. as “person who has been harmed by a crime”). If, as Part II suggests, this tension remains problematic despite these unconvincing efforts at resolution, then the first thing that one might turn to is reform. This Part will recognize reform efforts that have been made in order to adjust language to fit better with the fundamental precepts of the system, and will discuss other ones that could be tried.
Trying to reform these language usages would involve using alternative terms in contexts that are squarely legal, criminal, and pre-adjudication. Such efforts could target a variety of groups that have contributed to the prevalence of the word “victim” in this kind of context, such as prosecutors, defense attorneys, judges, witnesses, and drafters of jury instructions.
One can imagine a series of training programs that could be instituted to help bring about this kind of reform. So, for example, those who draft, apply, and revise jury instructions could be encouraged to screen them for the use of the word “victim,” and to consider substituting less problematic alternatives.295 Reform efforts in Vermont and Connecticut offer two potential models.296
Prosecutorial trainings could use various dimensions of this issue as a means of exploring what it might mean to “do justice” in trial litigation.297 While it is clear that this prosecutorial mandate means something other than the single-minded pursuit of convictions,298 scholars have highlighted the lack of more detailed guidance.299 One potential facet of such a duty is taking an active role in shaping police behavior,300 and this could include instructing police witnesses to avoid the word “victim” in their testimony.301 Prosecutors could also consider the possibility of avoiding the word “victim” in indictments, given that the indictments may be read to the jury;302 judges may import the word from the indictments into jury instructions;303 and the word’s appearance in indictments may be invoked to support a finding that its appearance elsewhere was harmless.304 Prosecutors could also consider avoiding the word in their own utterances at trial,305 given the risk that use of the term “may cause the jury to draw an improper inference that the defendant committed a crime against the complainant.”306 They should be particularly vigilant in those instances where language orders have been issued forbidding the word’s use,307 despite the fact that harmless error rules create an incentive for prosecutors to be (at least) careless as regards the risk of error.308 Indeed, prosecutors could consider joining motions for language orders banning the use of the word “victim.”309
Prosecutorial trainings could also use this issue as a means of exploring what it might mean to “do justice” beyond trial litigation. In analyzing how this goal might be applied to appellate litigation, prosecutors could consider whether it might include approaches that are something other than maximally aggressive.310 They might, for example, refrain from arguing at the appellate level that certain errors were harmless.311 Prosecutors could also examine the many ways in which they might fulfill their duty to seek to reform the criminal system.312 Where they operate in a jurisdiction whose pattern instructions contain problematic uses of the word “victim,” for example, they might take an active role in pushing for those instructions to be amended.
Judicial trainings could emphasize the importance of modifying statutory language and pattern instructions when crafting jury instructions,313 where they contain problematic references to “victims,” even if they might provide a safe harbor from reversal. Judges should also think about other ways to play a preemptive role on this issue, particularly given the multitude of obstacles that prevent defendants from getting relief after error occurs.314 They could discuss, for example, whether the Supreme Court of Hawaii is right that “unless there are good reasons found by the court for permitting otherwise, the court should instruct all counsel that they and their witnesses must refrain from using the term [‘victim.’]”315 Judges could usefully review the 1860 case People v. Williams, including the salutary warnings that “in a case of conflicting proof, even an equivocal expression coming from the Judge, may be fatal to the prisoner,”316 and that “[a] judge cannot be too cautious in a criminal trial in avoiding all interference with the conclusions of the jury upon the facts . . . .”317
Defense training in this area could provide useful opportunities to think about ways in which the defense might either combat or compound injustice. Defense attorneys could start by examining the importance of avoiding this usage themselves (unless sound strategic reasons support it), including in stipulations,318 and proposed jury instructions.319 Defense attorneys should also consider making greater use of in limine motions for language orders, particularly in light of the difficulty of “un-ringing the bell,” and of getting relief, once an objectionable usage has occurred.320 In one recent case, the federal defender moved for such an order but with no supporting case law or argument,321 so dissemination of relevant precedent and potential arguments would be helpful, particularly given the relative novelty of such tools.322 Examples of successful motions for language orders could persuade defense attorneys that you do not need to be Bill Cosby’s attorney,323 or Kobe Bryant’s,324 to try this (though their legal memoranda might provide useful templates). You do not have to be Jeffrey Epstein’s counsel to contest declarations of “victim” status that occur before adjudication has occurred.325 More generally, trainings could emphasize the importance of considering objections to the use of this word,326 particularly given the obstacles to appellate review,327 not to mention the risk of an ineffectiveness claim,328 that silence creates. A useful cautionary tale would be a recent Vermont case, State v. Burke, in which, when a detective violated the pre-trial order, the only person in the courtroom to object was Mr. Burke himself, who spoke up, saying “You’re not supposed to be saying the victim. That’s been barred.”329
Defense training in this area could also provide illustrations of the importance of persistence, and of defense attorneys’ ability to bring about change. Defense attorneys at both the trial and appellate level could study the example of North Carolina, where repeated defense challenges to the use of pattern jury instructions strewn with the word “victim” went nowhere,330 until eventually the instructions were amended, at least as to one offense.331 That a trial court practice—this or any other—is “deeply engrained” need not preclude efforts to change it.332 Defense attorneys could also be trained on affirmative litigation prospects: members of the defense bar were key to litigation efforts aimed at blocking Marsy’s Law in various states.333
Police trainings could be useful too. The topic of how to refer to complaining witnesses could be included in police officers’ training on how to testify; if the topic is already included,334 then the prescription could be changed. And if it is true that part of why one hears police witnesses use the word “victim” for complaining witness so often is that “victim” is the term of art among police for complaining witnesses,335 the term of art should perhaps be changed, given that it is in tension with fundamental aspects of the criminal law.
There is certainly potential for positive change here. Since language has the ability either to reinforce or to challenge assumptions,336 the hope might be that as language shifts, the attitudes expressed and reinforced by the language might shift as a result.337 Efforts to change language use are strengthening as regards words like “felon,”338 “inmate,”339 “convict,”340 “prisoner,”341 “perpetrator,”342 “offender,”343 “ex-con,”344 ex-offender,345 “rapist,”346 “criminal,”347 and so on;348 perhaps the same could happen with “victim.” One can see positive language change in adjustments made to some jury instructions that were challenged on the basis that they referred to the complainant as “the victim;”349 in the increasing use of language orders;350 and in some shifts in the language used in statutes and rules.351
Several complexities need to be addressed by those attempting this kind of reform, and a discussion of four of them follows: the scale of the project; the scale of related projects; the risk of entrenching the system; and the question of which alternative term to use.
A. Scale of this Task
Attempting to end usages of this kind would be a significant undertaking. Every state’s law now contains at least one provision that refers to complainants as “victims;”352 one finds the same in federal statutes.353 In addition, “victim” appears in pre-adjudication legal contexts not just on its own but in all sorts of combinations, such as “victim support,”354 “victim advocate,”355 “crime victim assistance board,”356 “counselor-victim privilege,”357 and so on.
In addition, while this Article is focused on those pre-adjudication legal contexts where one would expect legal definitions to hold sway, those pushing for reform may have to confront the question of where the line should be drawn. What should one say, for example, about media reports? What should one say about legal scholarship?358 What about courts—including our Supreme Court—that regularly use “victim” in their opinions to refer to those alleged to have been harmed by crime?359 The further one gets from contexts such as jury instructions and “victims’ rights” amendments, where one would expect legal definitions to hold sway, the harder it becomes to draw a clear line between “victim” as legal term and “victim” as lay concept, and the harder it becomes to lay down prescriptions, particularly given the power of arguments that those who claim harm should be able to choose their own terms.360
Finally, if the use of the word has indeed come to be seen by some as a means of bestowing things like fairness, respect, and dignity,361 its retraction is likely to provoke resistance.362 This may be particularly true in light of past and present failings—public and private—to accord fairness, respect, and dignity to members of subordinated groups.
B. Size of Related Tasks
The reform project in question would be an ambitious one not just because of the pervasiveness of this usage but also because a consistent approach would mean that multiple other terms would have to be uprooted. Throughout legal scholarship, statutes, constitutional provisions, and courtroom terminology one finds other phrases that appear to take a pre-adjudication allegation and treat it like a fact, and specifically like a crime. These include “crime scene,”363 “rape kit,”364 “rape crisis counselor,”365 “rape shield,”366 “fleeing felon,”367 “juvenile offender”368 “youthful offender,”369 “adolescent offender,”370 “murder weapon,”371 “perp walk,”372 “sexual assault kit,”373 “sexual assault nurse examiner,”374 and “sexual assault response team.”375 The use of words that could be said to contain embedded assumptions of crime and guilt is pervasive and so engrained as to go largely unmentioned.376
C. Risk of Entrenching the System
Those pushing for reform in this area run two related risks: first, that by attempting to ameliorate an aspect of the criminal system they might appear to, or might actually, reinforce that system.377 Abolitionists have made a persuasive case that so-called “reformist reforms”378—those that fail to shrink the criminal system—may have the undesirable effect of entrenching that system.379
The second and related risk is that by objecting to the use of the word “victim” pre-conviction, reformers might appear to, or might actually, endorse its use post-conviction. I have written elsewhere about elements of our criminal system—the overwhelming pressure to plead guilty, for example, and the inadequate provision of defense resources—that ought to unsettle the apparent willingness of some academics to treat crime conviction as synonymous with crime commission.380 That same analysis cautions against comfort with the word “victim”—if one takes it to mean someone who has suffered crime—even in the post-conviction context.
D. Choice of Alternative Terms
None of the obvious alternative terms is without its critics. “Victim” is a fraught term for reasons other than those on which this piece centers;381 sticking an “alleged” in front fails to remove those concerns and may add new ones.382 “Complaining witness” may be ambiguous.383 And terms such as “complaining witness,” “complainant,” or “prosecuting witness”384 may fail accurately to convey the fact that prosecution in our system is generally led by the prosecutor,385 rather than by the individual whose injury is alleged;386 a similar problem attaches to “accuser.”387 “Prosecutrix” has unwelcome gendered overtones.388 And one could go on. One defense attorney objected to “complainant” in a homicide case on the grounds that it appeared to imply that the deceased was “not an accident victim,”389 and that it “raised a prejudicial inference that she was ‘crying for vengeance from her grave.’”390 Terms like “survivor” and “harmed party,”391 even while they steer clear of appearing to assume crime commission, encapsulate related factual conclusions—that something bad happened, that it caused harm—that still are problematic in pre-adjudication criminal contexts, when that remains to be proven.
Maybe it’s not strange that the perfect word does not present itself. There is a tension within a system that purports to champion the individual even while emphasizing that the prosecution runs the show:392 even as “victims’ rights” become more numerous, the process is still not led by those who have them.393
However, while the criminal system persists, if we take seriously the objection to a term that appears to answer one of the questions that is to be answered by other means, then options such as “alleged victim” or “complainant,” or (where death has occurred) “decedent,” are preferable to “victim.” In some contexts, using the person’s name is also a possible option.
IV. Where Might this Usage Come From?
The previous Part laid out some complications with taking a reformist approach to this issue. This Part expands on one such complication, suggesting that a necessary part of assessing the likely value of reform efforts is attempting to understand what is fueling the problematic phenomenon.
The previous Part offered reasons to be concerned about the potential effects of this usage. This Part suggests that there are also reasons to be concerned about what might potentially contribute to this usage. It suggests that it is hard for language usages to gain and maintain such prevalence—particularly where they are usages that clash with legal definitions—unless something powerful fuels them.394 What might it be that leads even those who trade in words, definitions, precision, and accuracy, to adopt this word that appears to elide the most central distinction within criminal procedure and criminal law theory, often without acknowledging the issue?395 And what can we learn about our criminal system and alternatives to our system through consideration of such forces? This investigation opens up vast areas of inquiry, and thus the aim here is merely to touch on several possibilities, leaving further exploration for future scholarship.
A. Desire to Dignify
As mentioned earlier, one way in which the term “victim” has been understood is as a way of according respect and dignity,396 and of acknowledging harm.397 There is a scholarly consensus that this nation has often failed those who have come forward to allege crimes, particularly those from marginalized groups. Those failures have included disbelief that the alleged act occurred,398 or, even if it occurred, that it inflicted a harm that mattered.399 “Victim” is a term that can be deployed to combat all those tendencies, because it can potentially convey the existence of harm, crime, and impact on a life that matters. It can assert that invasions of bodily integrity and property rights are harms that are taken seriously. So it may be that pre-adjudication use of this term is fueled at least in part by a desire to display, as quickly as possible, trust, acknowledgement of harm, and acknowledgement of worth.
There are irreconcilable tensions in using this word for these purposes in these contexts, however. First, in the kind of context on which this Article focuses, to use the word “victim” risks resolving a question—whether a crime occurred—that is meant to be resolved via evidentiary and criminal processes, and may pose a threat to criminal defendants and to the system that prosecutes them. But second, if part of what fuels the call for victimhood to be proclaimed from the earliest moment is a sense of the need to respect those who have been disrespected, to value those who have been devalued, and to honor the bodily integrity and property rights of those for whom they have been always uncertain, our criminal system is an inapt place to turn. Historically and still, this system disproportionately targets people of color, and particularly African-Americans; historically and still, it devalues time, lives, life goals, and family ties;400 historically and still, it tramples on bodily integrity and exacerbates racialized wealth disparities.
Scholars have made the case that a system that is “built upon the dehumanization of the Black body,”401 and other forms of racial subordination,402 lacks the credibility to say that it can protect Black “victims.”403 That more broadly, a system that has wrought such harm on vulnerable groups cannot credibly champion them.404 That a system that imposes such harm, pain, damage, death, and exposure to sexual and other violence cannot credibly be called upon to address claims of harm, pain, damage, death, or sexual and other violence.405
Even if respect and dignity are accorded to the complainant, they are contingent in nature; as described above, her worth inflates or deflates according to her usefulness to the project of prosecution and conviction.406 And if she were one day to be the accused—indeed, potentially the same day407—that respect and dignity would dissolve.
B. Tendency to Assume Guilt
One might also read this usage as simply a manifestation of a tendency to assume crime (and thus a component of guilt) prematurely.408 If we tend to see an accusation of crime as tantamount to a crime, then perhaps it is unsurprising that it is common to see “victim” even before the existence or not of a crime has been adjudicated. In support of this proposition, one can point to a whole range of other usages that could be read as conveying similar premature assumptions: “offender” in place of “arrestee,”409 “offense” in place of “alleged offense,”410 and “recidivism” referring to re-arrest,411 as well as pre-adjudication uses of “crime scene,”412 “murder weapon,”413 “fleeing felon,”414 and so on. If one holds the view that such premature assumptions are common—whether because of media, or as a result of how people are treated pre-adjudication, or because of race- and class-bias,415 or because we long for certainty, or a combination of the above—then steering people away from “victim” may do little or nothing to tackle these underlying problems.
C. Influence of Law Enforcement Framing
This usage presents a useful opportunity to consider some of the dimensions and dominance of law enforcement framing.416 Courts often explain the pre-adjudication use of “victim” by saying that it is the term that law enforcement uses, sometimes adding that it is a “neutral” and “concise” term.417 Courts tend not to mention the possibility that it is selected and maintained because of its usefulness to law enforcement, because it helps to frame a situation in a certain way. Certainly, there may be instances where the usage is so ingrained that a prosecutor truly could not stop herself from blurting it out,418 but there is a reason that these usages are so common as to have become ingrained. Scholars have identified the tendency of “victims’ rights” initiatives to aid law enforcement;419 there are thus good reasons why law enforcement might choose to reinforce the language of “victims” in the pre-adjudication context.
There is room for deeper scholarly consideration of the impact of various types of law enforcement framing,420 whether that framing involves shaping the statements or alleged statements of suspects,421 coordinating with the media,422 or other types of public relations work,423 of which careful vocabulary choice is one example.424 There is room for introspection by scholars and others regarding the extent to which law enforcement framing has come to be our framing,425 has come to seem natural or neutral.426 The police may label “perpetrators,” “offenders,” “victims,” and “recidivists,” before an adjudicative process has played out, but then so may scholars and judges.427 This framing risks shaping thought; risks making law enforcement in effect the last word on whether a crime occurred.
An increased awareness of the spread and influence of law enforcement terminology may expand awareness of a broader phenomenon of which this often forms a part: the use of terms that tend to prop up the criminal system by making it seem at worst redeemable, and at best essential. Even in the words of reform-minded scholars, it is common to see the use of “lenience” to characterize sentences or bail amounts;428 “mercy” to describe acts of executive discretion; and “progressive prosecutor” to describe those who are, or who proclaim themselves to be, at the less punitive end of the prosecutorial spectrum. It is important to examine all these terms and interrogate the notions that they appear to be furthering. Can sentences be said to be lenient, merely because they are shorter than others in our prison-hungry system? Can bail—requiring the legally innocent to attempt to buy their freedom—ever be lenient? Is it mercy at the end of the system’s workings to turn back from some worst-case outcome? Can one wielding the tools of this system be said to be progressive?429 Certainly one could respond that “relative(ly)” is to be read into this kind of expression, but this is at best a feeble and fluctuating understanding.430
It is important to note these terms, what they imply and whom they benefit, and how it is that they start to seem neutral. Understanding them, and moving away from them, may help us to see with clearer eyes both the criminal system and those who are caught up in it.
D. Reflection of Reality
Another possibility is that this usage—which blurs the supposedly central line between accusation of crime and finding of crime, and thus in at least some instances the supposedly central line between accusation of guilt and finding of guilt431—persists because it matches our blurry reality. In other words, while this usage might be in irreconcilable tension with our criminal system’s core tenets, and with what we tell ourselves about the system, it might be reflective of the system as it actually exists.
We tell ourselves of a system where we apply the most rigorous procedural protections because the stigma is the greatest, and the exposure to punishment unique.432 We tell ourselves of a system where every component of guilt has to be proven beyond a reasonable doubt at trial,433 based on admissible evidence, and with neutral fact-finders who not only apply the relevant legal standards to the admissible evidence but also apply community standards of culpability.434 And we tell ourselves that it is not until that highest burden of proof has been applied—and the defendant has had a chance to tell her story, aided by a vigorous advocate who had the chance to proffer evidence and arguments and defenses to rebut the government’s account—that we permit punishment to occur. Up until that point of course we apply the presumption of innocence.435
But it’s perhaps in words like “victim” that reminders of the reality peep through. Perhaps that supposedly central line of adjudication, said to be so carefully policed by the rules of procedure, the rules of evidence, and our constitutional guarantees, is frequently just a blur, with the most vital dividing lines lying elsewhere. Perhaps, for some, it’s the moment when you are born, for example.436 Or perhaps, as Jocelyn Simonson has argued, the setting of bail may serve as the true adjudicative moment.437 Certainly the idea that the true dividing line occurs pre-adjudication is supported by not only bail and pre-adjudication detention, but by pre-adjudication billing of defendants for attorneys,438 ankle monitors,439 global positioning systems,440 and jail,441 and by a variety of other consequences of arrest and charge.442 More than one scholar and judge has referred to pre-adjudication hardships as a form of punishment,443 thus challenging the constitutional mandate that punishment be imposed only post-conviction.444
Key aspects of the guilty plea process support this notion of a blur where one might assume a sharp dividing line. David Shapiro pointed out that probable cause—the standard of proof required for an arrest—typically suffices for the acceptance of a guilty plea, the means by which the vast bulk of convictions are imposed.445 Arrests may rely entirely on a law enforcement account,446 and a guilty plea has the same core evidentiary requirement.447 Potential defenses may end up being barely more salient at the guilty plea stage than at the arrest stage,448 and the give-and-take nature of repeat players’ plea bargaining may deter aggressive defense litigation.449 Finally, the judgment of the community is absent from guilty pleas,450 as is the requirement of a neutral fact-finder, or indeed any fact-finder.451
Even when trials do occur, their reality in our under-resourced system challenges the stories we tell of how the dividing line is honored and policed, of how it acts to distinguish adjudication from charge. Numerous restrictions exist on the ability of defendants to mount defenses or tell their stories,452 on jurors’ ability to focus solely on the admissible evidence,453 to honor the presumption of innocence,454 and to apply the correct burden of proof,455 and on the extent to which the jury represents the community.456 Exceptions of course are possible, when the appropriate line is faithfully and rigorously policed. But in the vast bulk of cases, perhaps the crucial moment is indeed the issuing of a charge; perhaps the use of “victim” regardless of whether adjudication has occurred reflects the difficulty of getting beyond—of challenging or countering—governmental assertions that a crime occurred and that someone was victimized.
E. Rough and Ready Sense of Crime
A final phenomenon that this usage helps to illustrate is the widespread presence of a kind of “shadow criminal law:” a concept of crime (including a concept of “victims”) that does not rely on formal criminal concepts, elements, or definitions. A kind of “I know it when I see it” concept.457 This is understandable—we need a way to refer to the kind of thing whose legal version is litigated in court: rapes, murders, crimes, victims, and so on. But this phenomenon can jeopardize the protections that the law sets up, such as mens rea requirements and defenses.458
Thus, for some of the judges mentioned above it is unproblematic—natural and appropriate even—for the person whose death is the focus of a homicide trial to be referred to as a “victim.” And of course that seems right if we are focused on common parlance, in which the word “victim” does not necessarily imply crime or guilt: we speak of “victims of circumstance,” for example. But when we enter criminal legal fora in which definitions are in play, and in which the existence of a “victim” suggests the existence of a crime, this rough-and-ready usage becomes more problematic. As described above,459 it risks obscuring the role that justificatory defenses (such as self-defense) are supposed to play: where a justificatory defense is satisfied, after all, there is no crime. It risks obscuring the role of the defense attorney, which is not to “get someone off,” but to play a part in the process that leads to a decision as to whether a crime appears to have occurred.460 It risks obscuring the nuanced components of crimes, such as mens rea, and in general expanding the cloud of criminality beyond its already vast spread.
We see this shadow criminal law again in the equating of claim and crime.461 As mentioned above,462 even a truthful claim of a crime does not necessarily translate to a crime. This concept needs to be reinforced because it is frequently obscured in criminal legal discussions that rely on reports or claims or arrests to denote crimes. When we speak of pre-adjudication “victims” and express concern about the rates at which “crimes,” or “murders,” or “rapes” are committed, reported, enforced, or solved, and when all of this rests on pre-adjudication data—whether arrests, claims, or charges—our language is in tension with a system that defines crime, murder, and rape legally, in part to ensure that the label of crime is cabined and in part to ensure that defenses can be proffered and things like mens rea can be contested.
There may be a hopeful coda here, however. While the concern at issue centers on a risk that we deemphasize crucial aspects of the law’s structure and protections—defenses and elements such as mens rea—it is worth considering where the emphasis tends to lie instead. As mentioned above, when judges insist that we have a “victim,” even when the defendant is arguing self-defense, it seems that the judges are influenced by the fact that, legal arguments as to crime notwithstanding, we do indubitably have a harm.463 And it seems that to those judges a word like “victim” that can be taken as acknowledging the harm is acceptable—desirable even. And so, if one starts to feel that a system infused by law enforcement rhetoric, deeply hampered in its ability to guarantee accurate adjudication, in tension with the community’s sense of crime, unable to offer dignity and respect in any consistent way, and inclined to blur its core dividing line needs to be abandoned, one can see a kernel of hope right at the law’s center: judges who lean away from definitions of crime in favor of an alternative centering principle, namely harm. To do this is threatening to a system that purports to criminalize only when a crime in all its nuance has been established. But it is hopeful, perhaps, in that it points to a different regime, one invoked by abolitionists, who identify harm as a more desirable focus than crime,464 whose theories and practice are built around that focus, and who strive toward respect, dignity, and bodily integrity for all.465 It undermines the argument that a focus on harm is alien or unattainable.
A consideration of the pre-adjudication use of “victim” thus affords an opportunity to reflect on ways in which the criminal system’s operation diverts from its official portrayal. That reflection might prompt a sense that those things that we’re commonly said to have aren’t guaranteed—not the protection of our highest burden of proof, not the precise definitions of an area of law governed by statutes and attentive to defenses, not the fierce protection of the presumption of innocence, not a central and carefully policed dividing-line between accusation and finding of guilt, not conviction as the key moment, not really evidence as the basis for adjudication, and not really even crime as the guiding principle. Rather, we have a system that doles out the criminal system’s unique harshness without its justificatory precision and protections. And at the same time, we don’t have a system that provides what the word “victim” and the attendant rights are said to be striving toward: respect and dignity.
The advance of abolition into mainstream discussions of criminal law makes this kind of consideration particularly timely. An appropriate part of evaluating arguments for abolition is to consider what it is that we have now: not the idealized version, to which one might be inclined to cling,466 but the actual version, out beyond the labeling and unsupported precepts. This consideration might make abolitionist ideas appealing in that they involve a rejection of our system. But it might also make them appealing—or at least less daunting—by unsettling the supposedly stark divide between our existing criminal system and stepping away from it; and by unsettling the sense of impracticality, of fantasy.467 Suppose that what’s said above is right: that we already have a somewhat loose grip on the centrality of crime as a governing principle; that harm is what moves us, more than crime as tightly defined; that the structural and definitional integrity that we may have thought was there isn’t;468 that we already seem motivated by the community’s sense of when it is that action is needed and accountability to be demanded;469 and that we indeed yearn for ways to embody respect and dignity. Acknowledging that might make less alarming the exploration of abolitionist goals and practices, in which the guiding principles do indeed center harm rather than crime, and respect and dignity that are universal.470
Conclusion
Written into the law throughout this country—in every state’s statutes and most states’ constitutions, in jury instructions, and in the words of judges, defense attorneys, prosecutors, and witnesses—is a merger of accuser and victimized, of alleged crime and crime, of the processes pre-adjudication and post, and thus potentially a challenge to the presumption of innocence and our processes of adjudication. And all often without attention or discussion; all so normalized as to appear to many to be “neutral,” to be just how people talk, to be just a bit of shorthand.471 But we need to be careful, both about what these usages may reveal and about what they may exacerbate.472 “Victims’ rights” are growing in number and in reach; they attach to these language choices; they derogate from defendants’ rights and protections; and they do little to serve the deepest needs of those harmed by crime and of a society harmed by punitivism.