When Should an Appellate Court in a Criminal Case Describe a Victim as the "Alleged Victim"?

In a petition for reconsideration, I ask the Utah Supreme Court to modify a recent opinion to remove the qualifier "alleged" in front of term "victim" in light of the fact that the defendant has been convicted of sexually assaulting the victim.

Last week the Utah Supreme Court released an opinion agreeing with me (and the Utah Crime Victims' Legal Clinic) that a crime victim was entitled to be heard in appellate court proceedings concerning whether to release the victim's mental health counseling records. While the decision was (quite properly, in my view) protective of crime victims' rights, one oddity in the decision was its first sentence—which used the term "alleged" to describe the child sexual assault victim in the case, F.L.  The opinion began: "F.L. is the alleged victim of sex crimes charged against David M. Chadwick." I have filed a petition for reconsideration, asking the Court to remove the term "alleged" from its opinion. At this point in the proceedings, the defendant has been convicted of the crime of child sexual assault against F.L. Accordingly, the term "alleged" is a legally inaccurate description of the victim's status—and inappropriately expresses incredulity about her testimony at trial.

Some quick background about the case: The defendant was charged with sexually assaulting F.L. when she was child. In the trial court, he sought F.L.'s mental health counseling records—a request that was mostly denied by the trial court judge. At trial, F.L. testified that the defendant sexually assaulted her. The jury then convicted the defendant of one count of child sexual assault.

The defendant appealed, asking the Utah Court of Appeals to release F.L.'s records to him for purposes of developing his appellate arguments. F.L. sought to intervene to protect the confidentiality of her records. The Court of Appeals refused to allow intervention and, on review of that refusal, the Utah Supreme Court released its opinion holding that F.L. was entitled to be heard in the Court of Appeals on the release-of-records issue.

In light of this background, to refer to F.L. as the "alleged victim" is inaccurate and inappropriate. Here's part of our argument from our petition for reconsideration:

That term ["alleged"] might be appropriate in a case in which a criminal defendant has yet to stand trial. Cf. State v. Archibeque, 2022 UT 18, ¶ 1 (discussing procedures at a preliminary hearing where a defendant "served his alleged victim" with a subpoena and the victim moved to quash). Here, in contrast, a jury has found beyond a reasonable doubt that Chadwick was guilty of one count of sexual abuse of a child—i.e., of sexually abusing F.L. See Op. at 2. While Chadwick is appealing his conviction, at this time it is plainly inaccurate to refer to F.L. as Chadwick's "alleged" victim—Chadwick's guilt for sexually abusing a child has been proven in a court of law. See BLACK'S LAW DICTIONARY 94 (11th ed. 2019) (defining "alleged" as "[a]ccused but not yet tried <alleged murderer>"(emphasis added)); BRYAN A. GARNER, GARNER'S DICTIONARY OF LEGAL USAGE 44 (3d ed. 2011) ("To allege is formally to state a matter of fact as being true or provable, without yet having proved it" (emphasis added)); Dictionary.Com ("Alleged is most commonly used in a legal context . . . in reports about crime … before it has been proven or before someone has been convicted."), available at https://www.dictionary.com/browse/alleged. In the eyes of the law, F.L. is the proven victim of Chadwick's abuse.

Our petition cites a comprehensive and helpful analysis of these issues by the National Crime Victim's Law Institute. In a review of cases involving whether to refer to a crime "victim," NCVLI explains that after a finding of "victim" status has been made, "[t]he use of 'alleged victim' incorrectly asserts that victim status has not been determined."

This debate about whether the term "alleged" is appropriate is no mere semantic quibble. For sexual assault victims—and particularly child sexual assault victims—one of their greatest fears is that they will not be believed when they come forward to report the abuse. While a defendant is, of course, initially entitled to a presumption of innocence in criminal proceedings, if a guilty verdict results at trial, that presumption no longer exists.

Appellate courts do not commonly refer to "alleged" victims on appeal. Our petition for reconsideration notes that in a number of recent decisions, the Utah Supreme Court does not refer to "alleged" victims in cases where the defendant has been convicted. For example, in State v. Bell, 2020 UT 38, 469 P.3d 929. the Utah Supreme Court's first sentence in its opinion was: "This case concerns a criminal defendant's request to view a sexual abuse victim's privileged mental health therapy records." Id. at ¶ 1 (emphasis added). Similarly, in Michigan v. Bryant, 562 U.S. 344 (2011), the U.S. Supreme Court's first sentence in its opinion was: "At respondent Richard Bryant's trial, the court admitted statements that the victim, Anthony Covington, made to police officers …." Id. at 348 (emphasis added).

I hope the Utah Supreme Court grants our petition for reconsideration and removes the term "alleged" from its recent opinion. Sexual assault victims face considerable headwinds in coming forward to report abuse. They shouldn't also face inaccurate skepticism in criminal appeals where a jury finding of "victim" status has been made by proof beyond a reasonable doubt.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I wonder if the same verdict also referred to the alleged suspect or alleged criminal.

[Noscitur a sociis]

"Alleged suspect" seems like an odd qualifier - there might be a question as to whether the suspect is the actual perpetrator, but it's usually going to be pretty clear that the defendant is the actual suspect.

[YepThatGuy]

Former prosecutor here, so I'm sympathetic to the victim and the argument. However, I had always understood the use of "alleged" to not be in the "he/she might have committed the crime/been victimized" sense, but rather to signify that the person to whom the modifier is attached is the person literally alleged in court documents to have committed the offense/been victimized by the offender.

[Jazzizhep]

IDK, it seems using “alleging victim” would more clearly state your meaning.

[JimM47]

With all due respect to the definitions cited, I am skeptical that the word "alleged" should be limited to cases "before" the defendant "has been convicted," or where the defendant has "not yet" been "tried."

My impression is that it is standard to use the word "victim" in an appellate decision, memo on a post-verdict motion, or memo on post-conviction petition where the relevant court denies relief sought by the defendant.

But my impression is that it is also standard to use the words "alleged victim" in a decision or order that grants a defendant's motion for a new trial. After all, the decision ostensibly puts the defendant back in the position of being presumed innocent.

I haven't observed any clear pattern for the category of cases here: where the defendant's request for a new trial is pending, and the court makes a decision in preliminary or satellite litigation related to that request, without resolving it.

The best practice might be to artfully phrase things to avoid having to pick "victim" or "alleged victim." But if you can't, then I remain unconvinced that "victim" is the proper term. If a new trial is denied, the victim can still get the satisfaction of seeing the word "alleged" dropped in the order that denies the defendant relief. If the new trial is granted, then it is better not to have been too hasty in prior orders. After all, the defendant has more due process rights at stake than the victim.

[Hal Davis]

Would "complainant" cover it?

[JimM47]

I personally disfavor the "complainant" solution. I see two problems with it:

The first issue is that, as one of the links posted by Professor Cassell points out, under state law, a "complainant" may technically mean the person who submits a criminal complaint. The alleged victim is rarely the complainant in that sense. And someone who isn't a victim can technically also be a complainant. You'll sometimes see the word "complainant" used despite that. And sometimes you will see the words "complaining witness" used.

The second and more important issue is the one which that latter construction highlights. You are saying the witness is "complaining." And that word has negative or dismissive connotations that it is hard to keep out of your readers' minds. It sounds like you are calling the (alleged) victim a "complainer." If you can avoid sounding like you are saying that, it is worth trying to do.

This latter issue isn't entirely different from the connotations that the word "alleged" can have. But my perception, rightly or wrongly, is that people have a better sense that "alleged" is a legal word, and are less likely to read into it.

[mse326]

If we take you dichotomy are you going to similarly say there are no victim's rights until a conviction? Because if there is no conviction then there is only an alleged victim. Do you use alleged victim in all of your pre conviction writing? I suspect you think the answer to both is no

[TwelveInchPianist]

Sounds like a basic logic fail. An allegation is still an allegation even after it is proven.

[The Turtle Dove]

So apparently there's an appeal pending at the intermediate appeals court, and this is interlocutory to that. Does this court have enough information in their record to make that finding of fact? (Is the trial court decision even in the record filed with the interlocutory appeal?) Was that finding necessary to the verdict? Was it a special verdict? Can intermediate appellate review in Utah do sua sponte revisiting of both law and fact, and might they then be bound by this bit of dicta? Might they be bound by law of the case even absent the ability to go mucking around in the record on their own?

It just strikes me as odd that someone wants to change the characterization of an element in the record without citing to the record.

Mr. D.

[Cal Cetín]

Am I correct that the guy was convicted and then appealed because he *claimed* he'd received an unfair trial? If his claim is true (which has yet to be decided), that would mean a new trial and the complaining witness would go back to being an alleged victim. If there's no new trial, the complaining witness is established as the victim. So at this stage, the defendant wants the victim to go back to alleged status and we still haven't gotten a ruling on whether that will happen.

[A_Lior]

I think the Utah Supreme Court was right here. While the defendant was convicted of the assault at trial, the proceedings are part of an appeal of his conviction, and so the courts should formally remain open to the possibility that the conviction was in error.

Suppose the supreme court or the court of appeals refers to E.L. categorically as "the victim" in the earlier parts of the proceedings and the court of appeal ultimately refuses to accept the appeal. Reasonable observes could ask whether the courts prejudged the appeal.

[A_Lior]

I agree with above commenters that as part of the final adjudication and when the court is denying relief, there is no reason not to talk categorically about a "victim" (or to describe the crime of conviction). But here the matter is still open.

Suppose that Chadwick dies tomorrow while his appeal is pending. The conviction would then abate, and with it the determination that F.L. is a "victim".

[MatthewSlyfield]

My $0.02:

It depends on whether or not there's already a conviction and whether the validity of the conviction is an issue in the appeal.

[California Dreamer]

I worked on many opinions as a judicial staff attorney, mostly in criminal cases, and I rarely if ever used the word "victim." It's easy to phrase the opinion so as not to use the word, thereby avoiding the problem, and the Utah Supreme Court should have done so here.

[Tempe Jeff]

The words 'alleged victim', imply the person was not proven to be victimized at all. Nothing about who did it.