“Who’s a Victim? Who’s An ‘Accuser’? The Loaded Language of Sexual Assault.”
by Michele Sharpe
The Washington Post, September 27, 2018
Dear Ms. Rogers,
Why are sexual assault victims called “accusers” by the media when victims of other crimes are simply referred to by name, or as “alleged victim” or as “witness”?
The 734-word piece attached and pasted in below explains this odd language via a short history of rape prosecution. As a former trial attorney with two graduate degrees in English, I’m in a unique position to analyze legal history and how language reflects and reinforces power structures.
I’ve written on the language of rape and misogyny elsewhere, most recently in this piece on Medium. Other recent articles include:
O, The Oprah Magazine, “Cardinals.” personal essay
Poets & Writers, “Outsiders as Insiders,” 3500-word reported piece
Shondaland, “The Elvis Tapestry,” personal essay
I’m in the process of changing my last name from “Leavitt” to “Sharpe,” so some of these clips are publihsed under “Leavitt.”
Many thanks for considering,
Enough with the Accuser Jargon
The phrase “Kavanugh’s Accuser” splashes across headlines and ledes this month, as if journalists have a hard time finding a way to refer to Dr. Ford that doesn’t make her sound like a pair of Judge Kavanaugh’s dirty socks.
Try rolling an accuser phrase off your tongue when speaking of any category of crime other than sexual assault: “Fred, the accuser in a recent burglary case . . .” or “Miriam, the accuser in a bank robbery case. . .” It just doesn’t quite roll.
As a feminist and former criminal defense attorney, this syntactical trick is too familiar. “Accuser” is the current iteration of old jargon. It sets sexual assault victims apart from victims of other crimes. It supports the long history of patriarchal insistence on control of women. It insinuates that the person who was assaulted is unreliable. In this latest incarnation, it frames an alleged rapist as the owner of the alleged victim, and as the only autonomous speaker.
American law has never had special terms for victims of crimes other than rape: we have only the generic terms victim or witness, as in murder victim and robbery witness. But victims of the crime of rape have had an entire lexicon of specialness foisted upon them.
A bedrock cultural assumption in Western societies is that no one consents to violence or the theft of property. We assume that thieves and robbers and murderers and destroyers of property act against the wishes of their victims. A bank robber defendant who testified that a teller “wanted it” or “led me on” would probably be laughed out of the witness box. But rape defendants routinely testify that “no” really meant “yes.”
Historically, rape complaints were brought by victims, and the victims were called “prosecutrixes” in common law. By 1820, most states had delegated the role of prosecuting criminal offenses to public prosecutors, and the old common law language was codified in new statutes. The term “prosecutrix” survived into the 1980’s, however, as did the special elements of rape that required “resistance to the utmost” and corroborating evidence like burns, torn clothing, bruises, blood, or broken bones.
Now, in the twenty-first century, we no longer refer to sexual assault victims as “prosecutrixes,” but there’s a new special term: rape victims are commonly referred to in the media as “the accuser.”
Why does “the accuser in the rape case” sound so right to today’s journalists and editors? Maybe they believe that “Rape is a charge easy to make and difficult to defend,” a cautionary instruction given in rape prosecutions until the California Supreme Court struck it down in People v. Rincon-Pineda, (14 Cal 3d 864, 538 P 2d 247, 1975), a case decided in 1975.
That court reasoned that the credibility of witnesses in rape cases should be judged by the same standard as the credibility of witnesses in any case. In a radical move, it disposed of the idea that “those who claim to be victims of sexual offenses are presumptively entitled to less credence than those who testify as the alleged victims of other crimes.”
Some folks have had difficulty understanding that ruling, as well as the abolition of statutes that permitted rape within a marriage. In July of 2015, Michael Cohen, Donald Trump’s attorney, assured reporters that Trump hadn’t raped his wife Ivana, and that, moreover, “You cannot rape your spouse. There’s very clear case law.”
Cohen wasn’t up to speed. New York’s marital rape exemption was struck down in 1984. Decades of feminist action to change rape laws had lobbed right through his brain without stopping, just as the words “no” and “stop” must lob through the brains of rapists.
As a former public defender, I’m well aware of the presumption of innocence. I’m well aware that any accusation can cost a great deal in terms of reputation, not to mention legal fees. Luckily, there’s a protocol already in place for how journalists should refer to alleged rapists or attempted rapists: by using the term “alleged.”
Journalism must hold itself to a higher standard than using the knee-jerk, self-serving language of rape culture. Writers and editors can take a simpler approach: in a pending case, simply refer to the parties by their names. That is the default for alleged rapists; make it the default for alleged victims as well. Equal protection under the law is, after all, the law of this land.