Victims, Accusers and the Presumption of Innocence

Call someone a victim, and they are at once framed in a sympathetic light. Bad things happen to victims, we are drawn to them, wanting to help them in any way we can. It is horrible to be a victim.

We don’t feel the same way about accusers. These folks are suspect. They point a finger, whether with justification or not lies in the proof. An accuser might be entitled to our sympathy, but they might just as easily merit our scorn if it turns out that their accusations are false.

To a victim goes immediate sympathy and support; to the accuser, a cautious ear. A victim has suffered gratuitously, an accuser may have so suffered, but, without proof, there is no way of saying whether the accuser is the cause of gratuitous harm to another.

There should therefore be no victims in the criminal justice system until after a verdict or plea of guilty. At least there would not be if we were truly serious about the presumption of innocence. Instead, our courts are awash in a cult of victimhood. I say banish the term victim from our lexicon. Substitute it with accuser, a term that is as existentially suspect as the term defendant, the person who is, after all, merely accused: put the accused and the accuser on a level playing field.

Juries are charged daily in this country that an accused person is presumed innocent: unless and until the state proves guilt beyond a reasonable doubt, the law requires jurors to regard a person as not guilty. Yet our language gives this presumption away every time we refer to the accuser as a victim: the victim has suffered gratuitous harm, after all. Who other than the defendant could have caused it?

We throw the presumption of innocence to the wolves when it comes to our treatment of accusers. We have laws giving rights to "victims" at all stages of the criminal proceeding. A person raising an accusation gets input into all phases of a prosecution before there is even a finding of guilt, yet they are not even a party to the litigation. We treat their accusations as truth long before a fact finder tells us the accuser is not really a victimizer.

We have victim’s advocates attending pre-trials. Indeed, we use the term victim to describe accusers, doing so without even stopping to consider that calling someone a victim before there is a finding of guilt makes a mockery of the criminal justice system. Calling an accuser a victim before the consummation of a prosecution is much like calling a man with mere lust in his heart a father.

If we were serious about the presumption of innocence we would banish the word victim from our vocabulary until such time as a jury returns a guilty verdict or a defendant enters a plea. Let the complaining witness, or, more aptly put, the accuser, stand in the same suspect netherworld defendants inhabit. Why give a privileged position to the accuser by calling them a victim? This simple act of framing the complaining witness as a victim carries enormous rhetorical and emotional consequences, consequences that rebound to the detriment of the accused.

There are cases in which defendants are wrongfully accused, in which they are themselves the victim. Sometimes defendants are the victims of simple mistake; sometimes defendants are the victims of malicious accusers. Let’s dispense with the false sanctimony attending anyone the state seeks to represent as a victim.

A simple start: Let’s change the title of those representing complaining witnesses from Victim’s Advocates to Accuser’s Advocates. Sure, they will object and feel indignant. But feelings are indignation are the lot of the accused, the man or woman cloaked, we say, in the presumption of innocence. Or don’t we really care about the presumption of innocence?


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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