Thursday, May 25, 2006

Sexually abused child cannot be called "the victim"

State v. Devey, 2006 UT App 219

According to the court of appeals, when a defendant claims that no crime was committed, as in a rape case where the rapist claims it was consensual or that there was no intercourse, the State cannot refer to the complaining witness as "the victim." It violates the defendant's right to a presumption of innocence.


The State is entitled to present a theory of the case that is consistent with the evidence. This includes calling a complaining witness "the victim," and calling the defendant "a rapist," "a murder," or "a child molester."

The court of appeal's rule is absurd. The State presented evidence that Devey touched his daughters genitals, showed her pornography, had vaginal and anal intercourse with her, and inserted a vibrator in her vagina. But when it called his daughter "a victim," it infringed on the presumption of innocence? Gimmee a break. The State's job is to overcome the presumption of innocence, not abide by it.

In fairness, I think the rule has merit as applied to the court. A judge is supposed to be a neutral party. Where the defendant claims no crime was committed, it would be best if the court refrained from calling anyone a victim, just as it should not call the defendant a murder, rapist, or child molester. But prohibiting the prosecution from telling the jury how they see it infringes on the State's right to present its case.


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