Defining who’s a victim – and who isn’t

Ispeak four languages fluently, read a fifth and am learning a sixth. I taught Spanish, French and Italian, and use all three languages on a daily basis in my immigration practice. I say this not to brag as much as to display how important language and its correct usage is to me.

I’ve seen a lot of that dishonesty lately, with people making up words like “Latinx” and using plural pronouns for a single person who might have multiple identities but can only claim one complete set of organs.

Words matter, and have an innate power that can both build bridges and fracture relationships. And they evolve over time, as we’ve seen with terms that were once used innocently with no intent to offend, but are now erased from the lexicon because of different mores and perceptions.

But language can also impact the way we assess people and situations, and one of the most illustrative examples of that happened the other day in Wisconsin. A state court judge primed to preside over the criminal trial of Kyle Rittenhouse made a preliminary ruling that shocked a lot of people and made headlines. Judge Bruce Schroeder held that the term “victim” could not be applied to the persons shot and killed by Rittenhouse last year during Black Lives Matter protests in Kenosha.

The dictionary definition of the term according to Collins is “someone who has been hurt or killed.” However, that’s not the way we tend to view the word in normal conversation. Calling someone a “victim” of anything implies that they have been wronged. It triggers the perception that this is an innocent person who has been persecuted, abused, attacked or otherwise harmed by another person or entity that needs to be punished.

The #MeToo movement paints women as “victims” of abusive men. Young boys were “victims” of predator priests. Native Americans were “victims” of the U.S. government’s aggression. Nicola Sacco and Bartolomeo Vanzetti were “victims” of a corrupt judicial system.

I use this last example on purpose. The Italian anarchists were executed after being tried on trumped up charges of murdering a guard. The prosecution was fueled by anti-immigrant bigotry at the beginning of the last century, and is one of the darkest blotches on America’s criminal justice system. We now know that the men had nothing to do with the crimes they were accused of committing. They were, in fact, true victims.

Rittenhouse poses a different sort of dilemma. Wisconsin law permits a person who “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself ” to shoot in self-defense. Kyle Rittenhouse’s defense will argue that he traveled to Kenosha to protect businesses and business owners from the looting and vandalism that he saw breaking out in the wake of Black Lives Matter protests. That argument may not be successful.

Nevertheless, it is a legitimate argument under state law, and if Rittenhouse can establish that his actions were justified under the color of that law, he did not commit a crime. If there was not crime, there was, in fact, no “victim” as that term is commonly understood. Using it before guilt has been established is prejudicial to the defendant, and the judge was right to bar the use of that word in a court of law.

That doesn’t mean other people can’t use it. Journalists will, supporters of Black Lives Matter surely will and anti-gun activists will, too. The difference is that none of these folks have the power to sentence a man to life in prison. Only a judge a jury can do that, and the odds should not be stacked against the man whose life they weigh because of some rhetorical games.

Some have accused the judge of bias or at the very least inconsistency, because he is going to allow the defense to use the terms “looter” and “rioter” if it can prove that this was the activity in which the people shot by Rittenhouse were engaged when he shot them.

It’s a fair point. But there’s much less wiggle room about whether someone who sets fire to a business or breaks its windows is a “looter” than there is about whether someone who gets shot after threatening someone is a “victim.” One is a question of fact, the other is a question of law.

So I applaud Judge Schroeder for making an extremely unpopular decision in this heated climate, where words matter and using the wrong words can have deadly consequences. Solomon would be proud.