Allen v. State

¶1concurring.

¶2My, oh, my, how Judge Miller does fulminate over Presiding Judge Onion’s use in his majority opinion of the age-old legal word “prosecutrix”. And yet, the Dallas Court of Appeals escapes Judge Miller’s censure, even though that court openly used the word “complainant”, a synonym for “prosecutrix”, when it referred to the *933female person that the jury found had been raped by the appellant.

¶3I am deeply concerned that to make of this cause a feminist issue will seriously detract from the importance of what is before us. Nevertheless, so that I will not be considered a sexist person, I must also write.

¶4First, however, I would like to point out that this Court granted the petition for discretionary review that was filed on behalf of Virgil Dean Allen, appellant, not so that this Court’s members could become engaged in a legal debate over the word “prosecutrix”, but, instead, it was granted in order to consider whether the Dallas Court of Appeals correctly overruled appellant’s contention that, because the female person who the jury found had been raped by the appellant left a false impression before the jury, the trial court erred in not permitting him to present evidence of her prior sexual activity, namely, her previously having had sexual relations with her, boyfriend. Although I agree with appellant, that the female person did leave a false impression before the jury, I am unable to agree with him that such is sufficient to warrant reversing this cause. Whether the female person was or was not a virgin is not an element of the offense; her virginity or her no longer being a virgin was not relevant to any material element of the offense; her virginity or her no longer being a virgin does not in the least tend to make it possible that she consented to having sexual intercourse with the appellant; and, to me at least, I am unable to agree that such would have been of any or at least very little interest to any rational juror in deciding appellant’s guilt. If there was error in excluding the evidence, it was certainly harmless beyond a reasonable doubt.

¶5I believe that if no one else does, at least Mary-Claire Van Leunen, one of the most delightful and incisive expositors (generic) of scholarly writing, will enjoy Judge Miller’s concurring opinion. Van Leunen once wrote:

My expository style relies heavily on the exemplary singular, and the construction “everybody ... his” therefore comes up frequently. This ‘his’ is generic, not gendered. “His or her” becomes clumsy with repetition and suggests that “his” alone elsewhere is masculine, which it isn’t. “Her” alone draws attention to itself and distracts from the topic at hand. ‘Their’ solves the problem neatly but substitutes another. ‘Ter’ is bolder than I am ready for. ‘One’s’ defeats the purpose of the construction, which is meant to be vivid and particular. “It’s” is too harsh a joke. Rather than play hob with the language, we feminists might adopt the position of pitying men for being forced to share their pronouns around. Van Leunen, A Handbook for Scholars, pp. 4-5 (Alfred A. Knopf, 1978).

¶6I am in agreement with the stylistic changes Judge Miller advocates; however, I find myself dramatically at odds with the reasons he gives for such changes. I therefore write separately, not only to encourage a modernization of our terminology, but also to expressly disassociate myself from Judge Miller’s analysis of the problem.

¶7Members of this Court have for many, many years referred to the victim of a sexual assault as “the prosecutrix”, if such person was the complainant in a criminal prosecution. And such usage has always been understandable by most rational persons because in point of semantical fact, it is not erroneous to call the female victim of a sexual assault “the prosecutrix” in a criminal proceeding if she has, indeed, appeared as the chief witness for the State. That is precisely what the word “prosecu-trix” means according to all of the authorities. In Arnold v. State, 148 Tex.Cr.R. 310, 186 S.W.2d 995, 997 (Tex.Cr.App.1945), this Court defined “a private prosecutor” as “one who prefers an accusation against a party whom he suspects to be guilty.” Also see Williams v. State, 321 S.W.2d 72 (Tex.Cr.App.1958).

¶8*934“Prosecutrix” is an agent noun, which is a noun denoting the performer of an action, as confirmed by the etymological notes that appear both in Webster’s New International Dictionary of the English Language and the Oxford English Dictionary. The word “prosecutrix” is derived through Middle English, from a feminine ending in Latin for agent nouns, where the current masculine or generic ending is “-or”; “- tress” is the feminine ending usually associated with the masculine or generic ending “-er”, taken in this instance from Old English, which evidently received it from Greek through late Latin.

¶9Thus, but as easily observed, the word “prosecutrix” nicely fits into the meaning of an agent noun, just as the word “prosecutor” does. Further, because the word “prosecutrix” is formed by appending a gender-specific suffix to the verb “prosecute,” the resulting ■ construction is necessarily feminine. Likewise, “prosecutor” is masculine, although not necessarily so, since it also serves a generic function; the context will determine in which sense the word is to be understood.

¶10Until recent times, the terms “prosecutor” and “prosecutrix” were universally understood to be roughly synonymous with “complaining witness” or “complainant”, which words are derived from a participle of the verb “complaint”, not from the addition of an agent noun suffix to it, and so do not exist in separate masculine and feminine forms. Although such usage may sound slightly odd to those citizens who reside in Dallas County, I find that Webster’s does not yet report that the word “prosecutrix” is either archaic or regional, let alone rare or obsolete. It is therefore patently false to maintain that the word “prosecutrix” does not have the above meaning, even if it has others as well.

¶11Therefore, Judge Miller’s assertion that the word “prosecutrix” should not be used when referring to a victim because it does not mean “victim” is an especially unconvincing non sequitur. To be sure, however, “prosecutrix” is not synonymous with “victim”, but then neither is “complainant”.

¶12In answer to Judge Miller’s rhetorical question, see footnote 2 of his opinion, the term “prosecutor” would, of course, be appropriate for a male victim of a sexual assault, so long as he appeared as chief witness for the State. Especially is this so since the recent changes made in Chapter 22 of the Penal Code. To say that the language has never been used in this way is not only false, but recklessly so, since the usage is supported by centuries of judicial and vernacular history. To note but a single example from the authority upon which no less than Judge Miller himself relies most heavily, the Oxford English Dictionary reports that in 1769 the immortal Blackstone himself commented that, “[o]n a conviction of larceny in particular, the prosecutor shall have restitution of his goods.” Surely, the great Blackstone did not mean to suggest by this statement that the King’s lawyer was entitled to receive the stolen property as booty for a job well done.

¶13Thus, Judge Miller’s first reason for condemning the usage of the word “prosecu-trix” fails utterly.

¶14As for his remaining reasons, one is at once alerted to suspect some wayward form of feminist politics, or so it would seem from his characterization of the term as “blatantly sexist.” The word “sexist” is not reported by the Oxford English Dictionary. Webster’s now has the word “sexism” nestled comfortably in its addenda section between “sexidecimal” and “sex kitten”, where it is given to mean “prejudice or discrimination based on sex; esp: discrimination against women”, and “behavior, conditions, or attitudes that foster stereotypes of social roles based on sex.” “Sexist” is its adjective, and may also be used to describe one who is. I believe that Judge Miller intended it in this latter sense.

¶15The word “prosecutrix” is inherently sexist only insofar as it discriminates between men and women, boys and girls. That is to say, it “mark[s] or perceive[s] the distin*935guishing or peculiar feature of” gender. It is not, however, intrinsically sexist in the sense that it “make[s] a difference in treatment or favor on a basis other than individual merit.” The Oxford English Dictionary also reports these various senses of “discriminate”.

¶16The word “prosecutor”, however, at least surface wise, neither discriminates between the sexes nor does it discriminate against either one. It can be either a generic or a masculine term, depending upon the context in which it is used. While its etymology would seem to preclude reference to a specific female as a prosecutor, the word “prosecutor” may be used to refer to prosecutors in general, including both men and women without distinction.

¶17Judge Miller posits that “If there are victims of murders, kidnappings, robberies, assaults, and burglaries, why can there not be victims of sexual assault?” The short answer to his query lies in the fact that there can be, under either the former Penal Code or the present Penal Code. I am unable to understand how Judge Miller can state that “Use of an aggressive word such as ‘prosecutrix’ gives rise to an inference that victims of sexual assault are not really ‘victims’ and such use may unfairly diminish the degree of harm actually suffered.” I should like to go on record that I cannot find anywhere that makes it readily and immediately apparent in the etymology of the words “prosecutrix” or “prosecutor” that might suggest that any pejorative connotation should be, or ever was, attached to these words. The reason for marking a distinction in the first place, perhaps soon after the dawn of human speech occurred, is unclear, but it almost certainly was never intended to slight either sex. Therefore, Presiding Judge Onion will no doubt be surprised to learn that his use of the word “prosecutrix” in this Court’s majority opinion diminishes the harm suffered by the female person who the jury found had been raped by the appellant or the interest of the State in defending her rights during appellant’s trial.

¶18Having said my piece, I concur in the judgment of the Court.

¶19concurring.

¶20The majority disposes of appellant’s contentions in an acceptable manner. I take issue only with the majority’s improper use of the term “prosecutrix” instead of the proper term “victim,” when referring to the person appellant sexually assaulted (formerly denominated as “raped”).

¶21Black’s Law Dictionary 1100 (5th ed. 1979) defines “prosecutrix” as “a female prosecutor.” Both the third and fourth editions of that dictionary restrict the term to criminal law. “Prosecutor” is defined as one who prosecutes another for a crime in the name of the government. Id. at 1099. The Oxford English Dictionary, Oxford University Press, 1971, page 1490, also defines the term as “a female prosecutor.” The term does not appear in Webster’s New Collegiate Dictionary, G. & C. Merriam Co., 1981. A cursory review of the Texas cases using the term reveals no definition, but indicates that “prosecutrix” has been used to refer to the victim of a rape since at least 1911. See Ross v. State, 132 S.W. 793 (Tex.Cr.App.1911). Even then it was an incorrect use of the term according to Black’s Law Dictionary 959 (2d ed. 1910) which gave the definition as: “In criminal law. A female prosecutor.”

¶22In the majority opinion, the term is also used without a specific definition, but clearly refers to the victim of the sexual assault.1 The use of this term in this manner is improper for at least three reasons.

¶23First, use of the term in this manner is inconsistent with its definitions found in the preceding source materials. None of the definitions of “prosecutrix” make reference to the victim of a sexual assault. Since “prosecutrix” does not mean “victim” *936in this sense it should not be used when referring to a sexual assault victim.2

¶24Second, use of the term is blatantly sexist. Initially, there is no reason why we would need to specify the gender of the State’s attorney in any case. Thus, reference to a prosecutrix instead of a prosecutor would be unnecessary and would thus appear patronizing and demeaning. Moreover, if the term is used to refer to those who initiate criminal actions, its use has been restricted to sexual- assault cases, where the overwhelming number of victims have been women. Such gender distinction is unnecessary. Also, if the term is used to imply that the woman who was sexually assaulted is actually prosecuting the case, then its use implies that in sexual assault cases, the State does not pursue the prosecution; rather, the woman-victim of the assault does. All other crime victims are represented by the State’s attorney. See Art. 2.01, V.A.C.C.P. “Prosecutrix” therefore implies that the rights of the women involved in sexual assault cases are not defended by the State and the women must fend for themselves.

¶25Third, use of the term “prosecutrix” rather than “victim” is prejudicial to the victim since it implies that there is no victim in a sexual assault case. If there are victims of murders, kidnappings, robberies, assaults, and burglaries, why can there not be victims of sexual assault? Use of an aggressive word such as “prosecutrix” gives rise to an inference that victims of sexual assault are not really “victims”, and such use may unfairly diminish the degree of harm actually suffered.

¶26The improper use of the term for the preceding three reasons should sufficiently justify using the term “victim” rather than “prosecutrix.” Another independent reason may be found in the acts of the 1983 Legislature. That year, the Penal Code and Code of Criminal Procedure were amended to classify rape and sexual abuse as assaultive offenses, since they are acts of violence and not sex crimes. Also, offenses were defined in gender neutral terms so that both men and women could file charges. See House Study Group, Daily Floor Report, May 11, 1983, C.S.H.B. 2008, page 29-30. [attached as Appendix A for conference purposes only] Although we are not required to adopt legislative policy changes in the language of our opinions, this Court would do well to adopt the spirit of those changes when appropriate. The Legislature has moved ahead by addressing the problems generated by unnecessary gender descriptions; we should follow its lead and discontinue our improper use of such language.

¶27In sum, the term “prosecutrix” should be relegated to the attic trunk, along with corsets and pantaloons, and the term “victim” placed in its stead.

¶28In this posture, I concur in the majority’s holding.3

¶29APPENDIX A

¶30HOUSE STUDY GROUP bill analysis

¶315/11/83

¶32HB 2008

¶33C. Evans

¶34(CSHB 2008 by Danburg)

¶35SUBJECT: Redefinition of criminal sexual offenses

¶36COMMITTEE: Criminal Jurisprudence: committee substitute recommended

¶37VOTE: 8 ayes — Peveto, T. Smith, Waldrop, Burnett, Danburg, Granoff, Hernandez, S. Hudson

¶38*9370 nays

¶391 absent — Hury

WITNESSES: None

DIGEST: This bill replaces “he” and “his” with gender-neutral terms in sections of the Penal Code dealing with assault and aggravated assault. New gender-neutral offenses are also created for “sexual assault” and “aggravated sexual assault” in place of existing offenses for rape, aggravated rape, sexual abuse, aggravated sexual abuse, rape of a child, and indecency with a child.

The “sexual assault” provision covers acts defined currently as rape, sexual abuse, rape of a child, and indecency with a child. Language is changed to specify precisely the offensive conduct involved in this second-degree felony and to define consent. Existing defenses are preserved and a new defense is added regarding the offense of assault on a child for conduct that is a part of medical care.

The “aggravated assault”.provision incorporates the illegal acts currently defined as aggravated rape and aggravated sexual abuse. The criminal penalty, a first-degree felony, and the defenses and affirmative defense to prosecution are carried over from current law. The defense for medical care to a child is also added.

Other revisions are made throughout the Penal Code and Code of Criminal Procedure to conform to the substantive changes made in this bill.

SUPPORTERS SAY: This bill makes several improvements in existing law. The major change is to reclassify rape and sexual abuse as assault, an act of violence rather than a sex crime. This would help eliminate the stigma that causes one out of ten rapes to go unreported to the police. Secondly, this bill removes references to gender in the law so both men and women can file charges. In particular, this change will allow for the prosecution of homosexual assaults, but it would also cover cases in which women attack men or assist in male attacks on women. This bill clarifies the types of assaultive actions that have in the past been the basis for convictions for sexual offenses. And it makes clear that a marriage license is not a license to commit sexual assault in cases where spouses are separated or divorced, by excluding from the definition of spouse married persons who are living apart or who have a court action pending for divorce or separate maintenance.

OPPONENTS SAY: This bill should be amended to permit prosecution of all those who sexually assault their spouses. A spouse would not be prosecuted unless the other spouse doesn’t consent to the act. This would more adequately address the serious problem of rape within marriage.

OTHER OPPONENTS SAY: The existing offenses for rape and sexual abuse should stay the same. Juries will usually assess a much stiffer penalty for rape than they will for some type of assault. Rape is already perceived by most people as the ultimate assault.

NOTES: CSHB 2008 is essentially the same as CSHB 1730, by Danburg, except that CSHB 1730 eliminates any exception for nonconsensual conduct between spouses. CSHB 1730 has been reported favorably by the Criminal Jurisprudence Committee. A committee substitute for SB 966, by Whit-mire, companion to HB 1730, has been reported by the Senate Jurisprudence Committee.