Over the past week, the phrase “Kavanaugh’s accuser” has multiplied and mutated like a virus in a sci-fi story: “Second Kavanaugh accuser in standoff. . .” “Third Kavanaugh accuser steps forward.” “Lawyer for Kavanuagh’s second accuser. . . .” The persistence of that headline convention is perplexing, and it’s dangerous. And that’s because “accuser” is the wrong word to begin with.
Try substituting that “accuser” language in discussion 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 roll off the tongue.
As a feminist and former criminal defense attorney, I’m familiar with this syntactical trick. 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. That vocabulary sets sexual assault victims apart from victims of other crimes and supports the long history of patriarchal insistence on control of women. It insinuates that the person who was assaulted is unreliable.
Historically, rape complaints were brought by a girl or woman’s father or husband. When, in the 18th century in Britain and the United States, rape complaints were brought by victims, the victims were called “prosecutrixes.” By 1820, most jurisdictions in the United 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 1980s, however, as did the special elements of rape cases that required proof of “resistance to the utmost” and corroborating evidence such as burns, torn clothing, bruises, blood or broken bones.
Now, in the 21st century, we no longer refer to sexual assault victims as “prosecutrixes,” but our public discourse relies on a new special term: “the accuser.” Just a few days ago, People magazine published a story headlined: “Bill Cosby’s Accusers React as He’s Imprisoned for Sex Assault.” Earlier this year, the women who testified at Larry Nassar’s sentencing hearing about how he abused them were not called witnesses, a term that connotes reliability; the New York Times called them accusers.
Why does “accuser,” for all its shrill, harpyish ring, sound so right in today’s media? Perhaps it’s just easier to link alleged victims to well-known names: Sexual assault cases that make the news are usually those involving high-profile perpetrators. Journalists may also be concerned about liability and assuming guilt. 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. But “accuser” implies uncertainty that any incident occurred at all, a doubt that we don’t extend to other crimes.
The history of rape prosecution shows us that sexual violence became a suspect class of crimes only after women took power over their bodies in the legal system. Today’s jargon echoes that old definition of rape as a property crime against a man: “[Name]’s accuser,” as a construction, frames an alleged assailant as the owner of the alleged victim, and as the only autonomous speaker. That separate terminology also reflects the view that the people who bring charges of sexual violence are uniquely untrustworthy.
We have a bedrock cultural assumption 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 we treat sexual violence as an exceptional category of crime. In other, supposedly straightforward, criminal acts, like missing property or a killing, there’s evidence that something happened, even if the perpetrator and their motives are undetermined. But rape kits and DNA and other documentation are also evidence, of course, and even in cases where it’s available, we still use “accuser.”
According to a legal custom tracing back to 17th-century English common law, judges in sexual assault trials have given juries cautionary instructions much like this one: “Rape is a charge easy to make and difficult to defend, so the law requires that you examine the testimony of the female person named in the information with caution.” In 1975, the California Supreme Court decided that this language was inappropriate. 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.”
Journalists could make a similar move by choosing words with more care. Language can be a key to achieving equity if it’s employed equitably. If one party is referred to by name, the other party should be referred to by name, as well. And if the victim is anonymous, or journalists want to keep names out of headlines, other identifiers can work, too. “Athletes allege sexual assault by doctor,” or “Professor alleges sexual assault by Supreme Court nominee.”
More broadly, media makers and consumers alike should be aware of how language reflects and creates culture. A superficially neutral term such as “accuser” comes freighted with an entire patriarchal history. If we simply accept this headline convention, without probing its deeper implications, we reinforce unequal power dynamics.