Petition for Special Action from the Superior Court in
Maricopa County No. CR2017-104244-001 The Honorable George H.
Balson, Attorney at Law, Sun City By Jamie Balson Counsel for
Office of David Michael Cantor PC, Phoenix By Joey N. Hamby
Law Office of Brent E. Graham PLLC, Glendale By Brent E.
Graham Co-Counsel for Real Party in Interest
Kent E. Cattani delivered the opinion of the Court, in which
Judge Peter B. Swann joined. Presiding Judge James P. Beene
The State of Arizona has charged real party in interest Derek
Achenbach with one count of child molestation and two counts
of sexual abuse, alleging that he committed these offenses
against Z.W. In this special action proceeding, Z.W.
challenges the superior court's ruling denying her
request to preclude reference to her as the "alleged
victim." She argues that allowing defense counsel to
refer to her in that manner, rather than simply as the
"victim, " necessarily violates her statutory and
constitutional rights under Arizona's Victims' Bill
We accept jurisdiction because Z.W. has no adequate remedy by
appeal to cure an asserted violation of her pretrial rights.
See Ariz. R.P. Spec. Act. 1(a); State v.
Wein, 242 Ariz. 372, 374, ¶ 6 (App. 2017). We
conclude, however, that the constitutional protections
afforded crime victims do not mandate that a specific term be
used in referring to victims during court proceedings.
Instead, the superior court retains discretion to address-on
a case-by-case basis - whether using a particular term to
refer to a victim violates the victim's right to be
treated with respect and dignity. Accordingly, and for
reasons that follow, we deny relief.
Arizona's Victims' Bill of Rights secures crime
victims' rights to justice and due process throughout
criminal proceedings. Ariz. Const. art. 2, § 2.1(A);
Ariz. Rev. Stat. ("A.R.S.") §§ 13-4401 to
-4442. These important rights attach when a defendant is
arrested or formally charged, and continue during trial and
through the final disposition of the charges. A.R.S. §
13-4402(A); State ex rel. Romley v. Dairman, 208
Ariz. 484, 490, ¶ 20 (App. 2004).
As Z.W. acknowledges, the Victims' Bill of Rights does
not specify how a victim should be referred to in court
proceedings, and it does not explicitly prohibit the use of
the term "alleged victim." See Ariz.
Const. art. 2, § 2.1(A)(1)-(12). Nevertheless, Z.W.
asserts that because the Victims' Bill of Rights only
uses the term "victim" to refer to the crime
victim, there is an implicit right to be referred to as such
throughout the proceedings. But in context, the use of the
term "victim" in the Victim's Bill of Rights
simply confers unequivocally the status of victim
and all its attendant rights to those defined as crime
victims; the use of that term does not require that any
particular appellation be used in referencing a victim in
court proceedings. Moreover, we note that the Victims'
Bill of Rights defines the word victim to include not only
the "person against whom the criminal offense has been
committed, " but also that person's "spouse,
parent, child or other lawful representative" if that
person is killed or incapacitated. Ariz. Const. art. 2,
§ 2.1(C). Interpreting the Victims' Bill of Rights
as Z.W. urges to require that all victims be
referred to as they are in the constitutional provision would
be confusing and impractical in court proceedings. Thus, we
do not read the language of the constitutional provision to
require that a specific appellation be used.
Notwithstanding the absence of an explicit or implicit right
to be referred to in any particular manner, the Victims'
Bill of Rights confirms that every crime victim in Arizona
has the right to be treated throughout the criminal justice
process with "fairness, respect, and dignity, and to be
free from intimidation, harassment, or abuse." Ariz.
Const. art. 2, § 2.1(A)(1). Z.W. argues that the term
"alleged victim" necessarily (and as a matter of
law) violates this right because it calls into question
whether a crime was committed and whether someone is in fact
a victim. But the term "alleged victim" simply
reflects the procedural posture of a case such as this in
which the defendant disputes that any crime occurred.
Although "alleged victim" connotes some degree of
uncertainty as to whether a crime occurred, until a defendant
has been convicted of a charged offense, the case involves an
alleged criminal act against an alleged victim.
Characterizing the proceedings in this manner thus accurately
conveys the procedural posture of the case and does not
inherently violate a victim's right to be treated with
fairness, respect, and dignity.
Z.W. also asserts that the term "alleged victim"
improperly suggests she is untrustworthy. But the use of that
term is not a comment on the victim's credibility, just
as the use of the term "defendant" or-a more apt
comparison-"alleged perpetrator" is not a comment
on a defendant's credibility. Instead, such a reference
simply avoids prejudging and reserves judgment on credibility
issues, which are for the jury alone to decide.
That is not to say that using the term "alleged
victim" is always appropriate. Rather, the superior
court retains discretion to assess-on a case-by-case basis -
whether a particular reference to a victim undermines the
victim's right to be treated with fairness, respect, and
dignity under the particular circumstances presented. When,
for example, the proceedings involve circumstances in which
there is no question that a crime has been perpetrated on the
victim, and the defendant has only challenged who
committed the crime, the superior court could reasonably
conclude that referring to the crime victim as an
"alleged victim" would mischaracterize the nature
of the proceedings and be disrespectful to the victim. But in
circumstances such as those presented here, where the core
issue in dispute is whether any crime occurred, the superior
court does not abuse its discretion by accurately conveying
the nature of the proceedings, and by weighing the
victim's request to be referred to in a specific way
against the defendant's right to have the court reserve
judgment on credibility issues. See State v. Bible,
175 Ariz. 549, 602-03 (1993) (the court must balance the
victim's rights against those of the defendant if the
victim's rights conflict with the defendant's right
to a fair trial); see also State ex rel. Romley v.
Superior Court (Roper), 172 Ariz. 232, 236 (App. 1992)
(noting that "when the defendant's constitutional
right to due process conflicts with the Victim's Bill of
Rights in a direct manner . . . then due process is the
superior right"). Accordingly, the superior court did
not abuse its discretion by denying Z.W.'s motion to
preclude use of the term "alleged victim" on the
basis that "nothing gives the victim the right to say a
crime has been committed as a matter of law."
The question of whether using the term "alleged
victim" necessarily violates a victim's rights is an
issue of first impression in Arizona. But courts in other
jurisdictions that have addressed similar arguments have
likewise concluded that trial courts should have flexibility
in determining how to refer to crime victims during criminal
proceedings. See Jackson v. State, 600 A.2d 21, 24
(Del. 1991) ("The term 'victim' is used
appropriately during trial when there is no doubt that a
crime was committed and simply the identity of the
perpetrator is in issue. We agree with defendant that the
word 'victim' should not be used in a case where the
commission of a crime is in dispute."); Veteto v.
State, 8 S.W.3d 805, 816 (Tex. Ct. App. 2000) ("The
sole issue of [the defendant's] case was whether he
committed the various assaults on [the child]. Referring to
[the child] as the victim instead of the alleged victim lends
credence to her testimony that the assaults occurred and that
she was, indeed, a victim."), abrogated in part on
other grounds by State v. Crook, 248 S.W.3d 172 (Tex.
Crim. App. 2008). We are unaware of any decisions that have
reached a contrary conclusion.
Finally, we note that our holding that the superior court
does not abuse its discretion by permitting reference to an
"alleged victim" in a case such as this does not
obviate the need to consider the victim's right to be
referred to in a respectful manner. If, as Z.W. posits, a
defendant refers to a victim-whether as "the
victim" or "the alleged victim"-with a
sarcastic or insulting intonation, the superior court is
empowered to prohibit such intonation as disrespectful.
Moreover, if a victim requests that a particular name or part
of a name be used or not be used when being
referenced in court proceedings, great deference should be
accorded to the victim's wishes. And nothing prevents the
prosecutor from complying with a victim's request to be
referred to by name rather than as "the victim." In