Dateline: May, 2021, Issue 1

Does calling an accuser a ‘complaining witness’ or ‘victim’ matter?

A court's decision about allowing the use of the term ‘victim’ versus ‘complaining witness’ may seem trivial, and yet language is known to have powerful effects.

The term ‘victim’ can be argued to presuppose what a trial is meant to determine and therefore deny defendants' right to the presumption of innocence (no different than if a defendant is called a ‘criminal’ prior to a jury verdict). On the other hand, ‘victim’ is used in statutes and does not necessarily presuppose criminal activity by the defendant and ‘complaining witness’ might lead jurors to assume an accuser is making a trivial or annoying complaint.

Modern case law on the issue varies. The general principle is that it is acceptable to use the term ‘victim’ in cases where there is an undisputed injured party. In cases where the determination of whether the accuser was harmed at all is to be adjudicated, the use of the term ‘victim’ sometimes has been held to be improper, most frequently in sexual assault cases (see, for review, Conklin, 2020).

Conklin (2020) studied whether the use of the terms ‘victim’ or ‘complaining witness’ affected verdicts in criminal trials. A survey was constructed consisting of background questions (age, gender, political affiliation) and a written summary of an assault case involving one person who allegedly punched another person in the ribs. Four different versions of this case summary were constructed by varying (a) the gender of the accuser (the person punched in the ribs) and (b) whether the person punched in the ribs was referred to as a ‘victim’ or ‘complaining witness’. The resulting four versions of the case summary referred to the person punched in the ribs as either a: (1) female victim, (2) female complaining witness, (3) male victim, or (4) male complaining witness. Survey respondents reported on a 0 to 100 point scale the extent to which they believed the defendant hit the [victim or complaining witness] with 0 meaning absolutely not, 50 meaning too close to say, and 100 meaning absolutely yes.

The gender of the accuser mattered. A female accuser - regardless if referred to as a victim or complaining witness - led to a greater belief in the defendant's guilt (65.1%) than did a male accuser (59.2%). This result did not depend on the age, gender or political affiliation of survey respondents.

The use of the terms ‘victim’ or ‘complaining witness’ also mattered for both female and male accusers, though differently.

These reactions to male and female accusers referred to as a victim or complaining witness also showed uniformity across the age, gender and political affiliation of the survey respondents.

Conklin's research shows the powerful role that language choice can have on the outcome of a case. Conklin encouraged investigation into, and considertion of, other terms that might be used for an accuser other than ‘victim’ (e.g., complainant, alleged victim, aggrieved party, deceased, etc.).

Source Conklin, M. (2020). Victim or complaining witness: The difference between guilty and not guilty. San Diego Law Review, 57, pp. 423-432.