Z.W., Petitioner, v. The Honorable George FOSTER, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Derek R. Achenbach, Real Party in Interest.

CATTANI, Judge:

¶ 1 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 courts 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 Arizonas Victims Bill of Rights.

¶ 2 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, 396 P.3d 608, 610 (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 victims right to be treated with respect and dignity. Accordingly, and for reasons that follow, we deny relief.

¶ 3 Arizonas 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, 95 P.3d 548, 554 (App. 2004).

¶ 4 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 Victims 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 persons 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.

¶ 5 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 victims right to be treated with fairness, respect, and dignity.

¶ 6 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 victims credibility, just as the use of the term defendant or-a more apt comparison-alleged perpetrator is not a comment on a defendants credibility. Instead, such a reference simply avoids prejudging and reserves judgment on credibility issues, which are for the jury alone to decide.

¶ 7 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 victims 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 victims request to be referred to in a specific way against the defendants right to have the court reserve judgment on credibility issues. See State v. Bible , 175 Ariz. 549, 602-03, 858 P.2d 1152, 1205-06 (1993) (the court must balance the victims rights against those of the defendant if the victims rights conflict with the defendants right to a fair trial); see also State ex rel. Romley v. Superior Court (Roper ), 172 Ariz. 232, 236, 836 P.2d 445, 449 (App. 1992) (noting that when the defendants constitutional right to due process conflicts with the Victims 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.

¶ 8 The question of whether using the term alleged victim necessarily violates a victims 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 defendants] 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.

¶ 9 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 victims 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 victims wishes. And nothing prevents the prosecutor from complying with a victims request to be referred to by name rather than as the victim. In short, although the court maintains discretion in determining how to reference a crime victim in court proceedings, the victim maintains the right to be treated with fairness, respect, and dignity.

CONCLUSION

¶ 10 Based on the foregoing, we accept jurisdiction but deny relief.

BEENE, Judge, dissenting:

¶ 11 The Arizona Constitution, through the Victims Bill of Rights and the Victims Rights Implementation Act, affords the designation of victim to all individuals against whom a crime has allegedly been committed, at all stages of a criminal proceeding. Because I do not agree with the majoritys conclusion that referring to Z.W. as an alleged victim is appropriate as a matter of law, I respectfully dissent.

¶ 12 Crime victims rights in Arizona are protected by our constitution, by statute, and by court rule. In 1990, Arizona voters approved an amendment to the state constitution, the Victims Bill of Rights, which gives crime victims a panoply of rights. The year following the adoption of the Victims Bill of Rights, the legislature enacted the Victims Rights Implementation Act, Arizona Revised Statutes (A.R.S.) sections 13-4401 to -4437. 1991 Ariz. Sess. Laws, ch. 229, §§ 1, 7. The Victims Bill of Rights and the Victims Rights Implementation Act define [v]ictim as a person against whom the criminal offense has been committed[.] Ariz. Const. art. 2, § 2.1 (C); A.R.S. § 13-4401(19).

¶ 13 In addition to defining victim, the legislature set forth that the rights and duties that are established by this chapter [victims rights] arise on the arrest or formal charging of the person or persons who are alleged to be responsible for a criminal offense against a victim ... [and] continue to be enforceable ... until the final disposition of the charges[.] A.R.S. § 13-4402(A). Accordingly, we have concluded that [v]ictims rights accrue at the time of arrest or formal charge of the alleged incident and take root as the criminal proceedings progress. State ex rel. Romley v. Dairman , 208 Ariz. 484, 490, ¶ 20, 95 P.3d 548, 554 (App. 2004) (emphasis added); see, e.g., A.R.S. § 13-4405 (requiring law enforcement to notify victim of rights and services); A.R.S § 13-4406 (requiring notification to victim of defendants initial appearance); A.R.S. § 13-4408 (requiring prosecutor to inform victim of rights); A.R.S. § 13-4420 (granting victim to be present at all proceedings in which defendant has a right to be present); A.R.S. § 13-4421 (granting victim right to be heard at defendants initial appearance); A.R.S. § 13-4422 (granting victim right to be hearing at any hearing involving post-arrest release of defendant); A.R.S. § 13-4423 (granting victim right to be heard at any plea negotiation proceeding).

¶ 14 Because a person against whom a crime has allegedly been committed is afforded several, substantive pre-trial rights pursuant to Arizona law, logic dictates this individual is a victim and should be referred to as such. See Knapp v. Martone , 170 Ariz. 237, 239, 823 P.2d 685, 687 (1992) (It is important to emphasize that Arizona courts must follow and apply the plain language of this new amendment [Victims Bill of Rights] to our constitution.); Bilke v. State , 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271 (2003) (in matters of statutory construction, court must assign to each word its usual and commonly understood meaning unless the legislature clearly intended otherwise) (citation omitted). Based upon the language used in the Victims Bill of Rights and Victims Rights Implementation Act, I conclude that the legislature intended courts to refer to individuals such as Z.W. as a victim, even during the pre-trial phase of a criminal proceeding, and the superior court abused its discretion in finding to the contrary.

¶ 15 Deciding that Z.W. has the right to be referred to as a victim throughout the criminal proceeding, however, does not end our inquiry. We have previously held that in some cases some victims rights may be required to give way to a defendants federal constitutional rights. State ex rel. Romley v. Hutt , 195 Ariz. 256, 259, ¶ 7, 987 P.2d 218, 221 (App. 1999). For this to occur, there must be a showing that a defendants due process rights conflict with and override the victims rights. See State v. Connor , 215 Ariz. 553, 558, ¶¶ 10, 11, 161 P.3d 596, 601 (App. 2007). In the instant case, however, no such showing was made. While the superior court found that requiring Z.W. to be referred to as a victim throughout the proceeding would abridge Achenbachs right to a complete defense and his presumption of innocence, nothing in the record supports this conclusion. The superior courts speculative finding that Achenbachs constitutional rights are in jeopardy does not supplant Z.W.s victims rights and the concomitant obligation to refer to her as a victim.

¶ 16 Moreover, applying this appellation to Z.W. would in no way impede Achenbach from asserting a full and complete defense at trial. In fact, at two critical points in the trial-before the presentation of evidence and at the conclusion of the case-the jurors are informed of Achenbachs incontrovertible due process rights. At the beginning of the proceeding, the jury would be advised that Achenbach has a constitutional right not to testify at trial and the exercise of that right cannot be considered in determining whether he is guilty or not guilty. The jurors would also be told Achenbach is presumed by law to be innocent, that they could not think he is guilty because he has been charged with a crime, and that his plea of not guilty means that the State has the burden of proving each element of the charged crime against him beyond a reasonable doubt. Then, after the presentation of evidence, and before their deliberations, jurors would be instructed yet again regarding Achenbachs due process rights. In short, requiring the parties to refer to Z.W. as a victim, in accordance with Arizona law, would not violate Achenbachs due process trial rights. Accordingly, I would accept jurisdiction of Z.W.s petition and grant the requested relief.

Although for the reasons stated above I conclude that Z.W. has a right to be referred to as a victim, I do not believe that she must be referred to as a victim. Defense counsel could call Z.W. by her name if desired, however, it would contravene Arizona law to refer to her as an alleged victim.

Revised Arizona Jury Instructions Preliminary Criminal 18, (4th ed. 2016).

Revised Arizona Jury Instructions Preliminary Criminal 20 and 22, (4th ed. 2016).

Revised Arizona Jury Instructions Standard 5(a), 5(b)(1), and 15 (4th ed. 2016).