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.