Criminal sexual conduct (CSC) cases are extremely serious felony criminal charges in Michigan, especially given the mandatory sex offender registration that accompanies most CSC convictions. CSC allegations involve penetration or sexual contact, or touching, and the majority of such cases involve a female complaining witness (complainant) and a male defendant.
One common scenario that can complicate a successful defense in such matters is the fact that the disclosure of the claimed sexual abuse can be months, or even years, after it allegedly occurred, otherwise known as “delayed disclosure.” This can frustrate a defendant’s ability to present an alibi defense, or otherwise promptly obtain exculpatory evidence, such as DNA, to prove his innocence.
In some CSC cases, a delayed disclosure by a complainant deemed credible by the prosecutor will be sufficient evidence for a prosecutor to bring charges. It can cause a defendant to be put in jeopardy at trial solely on the basis of the testimony of a complainant who did not come forward when the crimes supposedly happened. In those cases, there is often no additional evidence one way or another as to guilt or innocence. This is a “he said, she said” situation, a credibility contest between the defendant and his accuser, which involves juror assessment of the believability of her claims and his denials.
In all such cases the judges routinely allow the government to address the complainant as the “victim.” In many cases that is fair and appropriate, because there is no question that a crime occurred against the complainant. Some CSC claims, however, become a dispute as to whether any crime even happened- for example, whether sexual penetration or contact was agreed-upon, and thus consensual, or when a defendant claims the complainant is lying and the allegations are untrue and never happened.
Under these circumstances, a criminal defendant charged with CSC has a right to a fair trial by an unbiased jury. This right is guaranteed under the Sixth Amendment of the US Constitution and the related Michigan constitutional provision. There is a very real impediment to a fair trial for the defendant in cases where the government and the Judge refer to the complaining witness a victim, because to be properly labeled a victim, one has to first have been victimized.
The Michigan Criminal Jury Instructions state that “A person accused of a crime is presumed to be innocent. This means that you must start with the presumption that the defendant is innocent. This presumption continues throughout the trial and entitles the defendant to a verdict of not guilty unless you are satisfied beyond a reasonable doubt that [he/she] is guilty.”
Because a Defendant is presumed innocent, the burden is on the Prosecutor to prove guilt, and in doing so, prove there is in fact a victim of the crimes alleged. The complaining witness is not properly characterized as a victim in a “he said, she said” CSC case unless and until the Defendant is first proven guilty beyond a reasonable doubt. A defendant in these circumstances will be prejudiced by the Prosecutor’s use of the term “victim,” because the purpose of a trial is to determine if a crime has been committed (with a corresponding victim).
If reference is made to the complaining witness as a “victim” during trial, there exists a very real risk that jurors may interpret the characterization, made by a Prosecutor (who the jury probably think knows more about the case than they do), as confirmation that the complainant is truthful and the Defendant is guilty of committing the charged offense(s). In this situation, use of the term “victim” is contrary to the presumption of innocence, and will mislead the jury into the assumption that a crime has been committed against the complainant, the very issue the jury is being called upon to decide.
Additionally, use of the term “victim” should be disallowed because the probative, or evidentiary, value of such a characterization (little or no probative value) is greatly outweighed by the prejudicial and inflammatory harm it causes to Defendant (juror assumption of guilt).
Juror assumption of a defendant’s guilt produces, in effect, a juror who is biased against the defendant. A prosecutor may not appeal to the jury to sympathize with the complainant by referring to her as a victim in these types of cases.
Because fundamental rights under the Sixth Amendment and Const 1963, art 1, sec20 to trial by a fair and impartial jury and the presumption of innocence are implicated, anything that undermines these rights is what is called a “structural error” in the underlying criminal trial that should require reversal. Reference to the complainant as a victim by the court in jury instructions also amounts to the court improperly commenting on the importance the jury should attach to the evidence, which invades the fact-finding province that belongs solely to the jury.
To address an accuser as a “victim” undermines basic constitutional protections, including the presumption of innocence and the requirement that the Government prove a defendant’s guilt beyond a reasonable doubt. The constitutional right to a fair trial entitles the accused to have guilt or innocence determined by unbiased jurors solely on the basis of the evidence introduced at trial.
The word ‘victim’ should not be used in a case where the commission of a crime is in dispute because the defense is consensual sexual penetration or contact occurred or when the defense is asserting that the accuser is fabricating the claims. The prosecutor and her witnesses should always be instructed before trial to use neutral terms such as “complaining witness” or “complainant” when referring to the accuser. This would not undermine the prosecution’s ability to prove a case. On the other hand, anything less would undermine a defendant’s ability to get a fair trial.