Court decides judges can refer to ‘alleged’ victims

The Arizona Court of Appeals on Thursday ruled that judges had discretion during trial to use the term “alleged victim” to refer to people who accuse another of a crime, because just calling them “victims” would unfairly imply guilt.

It was a case of victim’s rights versus defendant’s rights, the dignity of the person making the accusation against a defendant who professes innocence. And in this case, the court ruled that the defendant’s rights prevailed.

Derek Achenbach was going through a divorce in January 2017 when a 14year-old girl accused him of fondling her on two occasions more than a year earlier.

Achenbach was charged in Maricopa County Superior Court on one count of child molestation and two counts of sexual abuse. He was charged separately in Coconino County, where one incident was suspected of taking place.

The girl had retained a victim-rights attorney named Jamie Balson, a former deputy Maricopa County attorney who won a national award for victim advocacy.

In March 2017, Balson filed a motion in Superior Court Judge George Foster’s court because Achenbach’s attorney repeatedly referred to the girl as the “alleged” victim. She asked that Foster refer to her client as the “victim,” because otherwise it minimized her accusations and made her seem “untrustworthy.”

“Defendant’s use of the term ‘alleged victim’ incorrectly characterizes (the teen) in a manner that violates her right to be treated with fairness, respect, and dignity and to be free from intimidation, harassment, and abuse throughout the criminal justice process,” she wrote.

Balson asked Foster to preclude the term “alleged victim” from the trial because it violated the girl’s state constitutional rights under the Arizona Victim’s Bill of Rights.

Foster pondered the matter for three months and then ruled that to call her “the victim” would compromise Achenbach’s right to a presumption of innocence.

“This Court is of the belief and so holds that the conflict between Victim’s Rights and the Defendant’s right to Due Process is in direct confrontation and under the law the Defendant’s due process rights prevail,” he wrote.

Balson filed a petition for special action — an expedited appeal during trial — with the Arizona Court of Appeals, and the court accepted jurisdiction.

Meanwhile, the case got transferred to another judge’s court.

A jury found Achenbach guilty of the two sexual-abuse charges but not guilty of the even more serious child-molestation charge.

He was sentenced to six months in jail and lifetime probation. He has yet to go to trial in Flagstaff on the Coconino County case.

On Thursday, in a 3-2 decision, the Court of Appeals sided with Foster’s ruling.

Balson could not be reached for comment.