THE MORAL VICTIM: HOW COURTS CONSTRUCT ‘IDEAL’ VICTIMS

Abstract

Victimhood in criminal adjudication is commonly treated as a factual status arising from the commission of an offence. This article challenges that assumption by arguing that victimhood is judicially constructed through credibility assessments shaped by implicit moral reasoning. It contends that courts often evaluate victims not solely on evidentiary grounds, but on conformity with unstated expectations regarding behaviour, emotional response, consistency, and social respectability, thereby producing an “ideal victim.” Deviations from these expectations are frequently translated into legal doubt rather than contextual difference.

Based on a reading of criminal judgments, the article notes how courts refer to aspects of a victim’s conduct—such as delay in reporting, the description of resistance, or demeanour in testimony—when assessing credibility. These references are often treated as neutral observations, yet they rest on assumptions about how a victim ought to behave. Instead of engaging directly with the evidence, courts may rely on these assumptions to explain acceptance or rejection of a victim’s account. The article argues that the absence of clear doctrinal standards allows such reasoning to remain largely unquestioned.

Situating this analysis within principles of equality before law and fair trial, the article contends that moral filtering of victim narratives introduces arbitrariness into criminal adjudication and proposes modest doctrinal restraints to separate evidentiary assessment from moral judgment.

Keywords: Victimhood Construction, Normative Adjudication, Judicial Epistemology, Evidentiary Rationality, Credibility Determination.

Introduction

In criminal trials, victimhood is usually treated as a given. Once harm is alleged, the person claiming to have suffered it is described as the victim, and the court’s task is understood to be the evaluation of evidence against the accused. This approach assumes that victimhood is a factual condition that precedes adjudication. What often goes unnoticed is the extent to which courts themselves shape how victimhood is recognised and accepted through their reasoning[1].

This article argues that courts frequently assess victims through more than evidentiary criteria alone. Judicial assessments of credibility are often influenced by implicit expectations about how a victim ought to behave—how promptly an offence should be reported, how resistance should be described, or how emotion should be expressed in testimony[2]. When a victim’s account fits these expectations, it is more easily accepted as reliable. When it does not, the deviation is often treated as a reason for doubt. In this way, courts tend to construct an “ideal” or moral victim whose conduct aligns with unstated norms of credibility[3].

The problem with this approach is not limited to individual cases. Credibility assessment plays a central role in criminal adjudication, particularly in offences where testimony is decisive and corroboration is limited. When moral assumptions quietly influence this process, they blur the line between assessing evidence and judging character or conduct. This creates the risk that similarly situated victims are treated differently, not because of the strength of the evidence, but because of how closely their behaviour matches judicial expectations[4].

This article examines these concerns through a close reading of criminal judgments, paying attention to how courts describe victim conduct, demeanour, and credibility. Rather than attributing these patterns to judicial bias or bad faith, the analysis treats them as a structural feature of criminal adjudication, made possible by the lack of clear doctrinal guidance on credibility assessment. By focusing on how victimhood is constructed through judicial reasoning, the article seeks to highlight an under-examined aspect of criminal trials and its implications for fairness in adjudication[5].

Victimhood as a Legal Construct

Criminal law generally proceeds on the assumption that victimhood is self-evident. Once harm is alleged, the person claiming to have suffered it is described as the victim, and the court moves on to the task of assessing evidence against the accused. This way of framing the issue suggests that victimhood exists prior to adjudication and merely needs to be confirmed. In practice, however, victimhood acquires legal meaning only through judicial evaluation. Courts do not simply encounter victims; they decide, through their reasoning, whether a claim of harm will be accepted as legally credible[6].

This becomes clearer when attention is paid to how criminal procedure actually operates. Statutes rarely define victimhood in any detailed way[7]. Instead, courts encounter competing narratives and must decide which account of events is reliable enough to ground legal consequences. In doing so, judges evaluate testimony, consistency, corroboration, and demeanour[8]. These evaluations do more than resolve factual disputes; they determine whether a person’s experience of harm is recognised as legally valid. Victimhood, therefore, is not only a description of suffering but a status conferred through adjudication.

The role of credibility assessment is central to this process. Criminal law offers little concrete guidance on how credibility is to be judged beyond broad references to consistency or plausibility[9]. Although framed as neutral standards, these considerations leave considerable room for judgment. In many trials, judges are required to assess whether a witness can be believed in circumstances where there is little by way of independent corroboration[10]. In such cases, credibility becomes the point at which a claim of harm is either accepted or quietly set aside.

Problems tend to arise when courts move beyond the evidence and begin to rely on views about behaviour while assessing credibility. Judges often refer to how a victim reacted at the time of the incident, how long it took to report the offence, or the way testimony was delivered in court[11]. These points are usually mentioned as matters of observation rather than judgment. Still, they depend on assumptions about how a victim is supposed to act after harm. When a victim’s conduct does not fit those assumptions, the difference is commonly treated as casting doubt on the account, instead of being examined in its own context.

This manner of reasoning affects how victimhood is recognised in practice. Victims whose conduct appears calm, consistent, and familiar to the court are more likely to be accepted as reliable. Where there is delay, hesitation, or visible emotional variation, courts tend to respond with greater caution[12]. What is taking place here is not always a clear assessment of truth or falsity. Rather, the court is deciding whether a version of events appears believable within its own frame of reference.

Once this is acknowledged, it becomes difficult to explain different outcomes in similar cases by pointing only to the evidence. In many instances, the result turns on how victim conduct is understood during the trial and the weight given to it. Credibility assessment therefore plays a filtering role. It determines which accounts of harm are taken forward by the law and which fail to receive legal recognition[13].

Judicial Language and Moral Filtering

Judges do not work only with rules and evidence; they also work with words. The way a judgment is written affects how a case is understood. This is clear in criminal trials, where courts spend time describing victims and their conduct. These descriptions may look like simple background or storytelling, but they often influence how a victim’s account is taken. Certain details are emphasised, others are played down, and this shapes how credibility is assessed. In this sense, language is not just used to explain a decision after it is made; it plays a role in how the decision is reached in the first place[14].

This is most visible in how courts describe victim conduct. Judges frequently refer to when a complaint was made, how resistance was offered, or how testimony was given in court[15]. These details are rarely presented as decisive on their own. Instead, they appear as part of the background against which the case is assessed. Yet this background is not neutral. By repeatedly drawing attention to certain aspects of behaviour, courts signal what they consider relevant to judging credibility. Description, in this sense, quietly turns into evaluation.

Delay in reporting is a familiar example. Courts often state that delay should not automatically undermine a prosecution[16]. At the same time, judgments continue to scrutinise such delay and look for explanations. The need for explanation itself suggests that prompt reporting is treated as the expected course of action. Where a victim’s account involves hesitation or delay, the language of the judgment often becomes cautious or doubtful. Prompt reporting, by contrast, is described in terms that reinforce its reliability. Through this contrast, expectations about “normal” behaviour find their way into fact-finding[17].

Similar patterns appear in judicial references to emotion. Courts regularly comment on whether a victim appeared calm, distressed, composed, or inconsistent while testifying. These observations are treated as relevant, even though there is no clear doctrinal basis for assuming that demeanour is a reliable guide to truth[18]. Victims whose emotional responses appear measured and familiar are more easily accepted. Those whose reactions seem uneven or excessive are approached with caution. Behavioural difference is thus translated into doubt.

What matters here is not overt moral judgment. Judges rarely say that a victim is unworthy of belief because of their conduct. Instead, moral assumptions enter through ordinary language—through emphasis, tone, and apparently common-sense descriptions of what is “natural” or “reasonable”[19]. Over the course of a judgment, these choices shape how a victim’s story is received without ever being acknowledged as normative reasoning.

Once this is recognised, credibility assessment can no longer be understood as a purely technical exercise. It is shaped by the way stories are told, framed, and interpreted in court. When judges rely on familiar behavioural expectations, experiences of harm that fall outside those expectations risk being discounted. Judicial language thus becomes a quiet mechanism through which some forms of victimhood are readily recognised, while others struggle to find a place within the legal process[20].

Credibility, Discretion, and Doctrinal Silence

Credibility sits at the heart of criminal trials. Whether a case succeeds or fails often depends on whether a judge believes a witness. Yet, somewhat surprisingly, the law offers very little guidance on how this belief should be formed. Statutes do not set out clear rules for deciding when a witness should be trusted[21]. Instead, courts fall back on familiar ideas like consistency, plausibility, or demeanour[22]. These are treated as natural tools of fact-finding, but in reality, they are vague and open to interpretation. This leaves judges with a great deal of freedom in deciding how much weight to give to a witness’s account[23].

Some level of discretion is inevitable. Criminal trials rarely present neat or complete evidence, and judges are often required to choose between competing versions of events. The real difficulty lies in the absence of clear boundaries on how this discretion is exercised. Because the law does not clearly distinguish between evaluating evidence and making broader judgments, courts end up filling this gap themselves. They do so through experience, intuition, or what is often described as “common sense”[24]. These choices are rarely acknowledged as discretionary, yet they have a powerful impact on outcomes.

This is where the silence of doctrine becomes significant. When the law does not specify which factors are relevant to credibility, it becomes easier for non-evidentiary considerations to shape decisions. Judicial discussions of conduct, delay, or demeanour often reveal underlying expectations about how a person ought to behave[25]. Since the law does not clearly indicate how much importance these factors should carry, their influence goes largely unexamined. Discretion, in this space, operates informally—wide in scope and difficult to clearly identify.

The consequence is inconsistency. Cases with broadly similar evidence can lead to very different results. One victim’s testimony may be accepted, while another’s is doubted—not because the facts meaningfully differ, but because their behaviour is interpreted differently by the court[26]. These differences are difficult to challenge on appeal, as they are framed as routine credibility assessments rather than discretionary judgments[27].

This is not to suggest that judges act in bad faith. Most decisions fall well within what the law currently permits. The problem is structural rather than personal. When credibility assessment is left largely unguided, it becomes a space where value judgments can quietly influence fact-finding. Doctrinal silence does not eliminate discretion; it hides it. And as long as the law remains unclear about how credibility should be assessed, this hidden form of reasoning will continue to shape outcomes while largely escaping scrutiny[28].

Constitutional Implications

The concerns raised in the preceding sections are not confined to questions of evidentiary technique or judicial style. They have direct constitutional implications, particularly for the guarantees of equality before law and fair trial. When credibility assessment operates through open-ended discretion shaped by moral expectations, it affects how these guarantees function in practice, even if courts continue to affirm them in principle[29].

At the level of equality, the problem lies in uneven treatment. Criminal adjudication assumes that similarly placed individuals will be treated alike unless a legally relevant distinction justifies differential treatment. Where credibility turns on how closely a victim’s behaviour aligns with judicial expectations, this assumption becomes fragile. Two victims may present broadly comparable evidence, yet receive different treatment because one appears more “legible” to the court than the other. The resulting inequality is subtle. It does not take the form of explicit discrimination, but it produces unequal outcomes through differences in evaluation rather than differences in proof[30].

Fair trial concerns arise in a related but distinct way. Credibility assessment is central to fact-finding, particularly in cases where testimony carries decisive weight. When assumptions about behaviour quietly shape this process, the line between evaluating evidence and making broader judgments becomes blurred. Decisions may appear to rest on the record, while in reality being influenced by expectations that have little formal grounding in law. For the accused, this raises questions about arbitrariness. For victims, it creates uncertainty about when and on what terms their testimony will be believed[31].

These concerns are intensified by the nature of appellate review. Appellate review makes these concerns more pronounced. Courts of appeal are usually hesitant to disturb findings on credibility, on the ground that the trial judge has had the advantage of seeing and hearing the witnesses. That hesitation is understandable. At the same time, it has practical limits. Where credibility assessments turn on tone, emphasis, or unstated assumptions rather than on reasons that are clearly set out, there is often very little for an appellate court to engage with. In such cases, the reasoning that matters most tends to remain unspoken, and therefore difficult to scrutinise on review[32].

It is also necessary to be clear about what this argument does not claim. The concern is not that judges routinely ignore constitutional guarantees or act in bad faith. In most cases, trial courts are acting well within the space allowed by existing law. The difficulty lies elsewhere. When wide discretion in assessing credibility operates alongside limited doctrinal guidance, judgments about value and behaviour can influence fact-finding without being openly acknowledged or constrained. Over time, this shapes how constitutional principles are worked out in everyday practice[33].

Looked at in this way, the constitutional implications arise less from dramatic departures from legal doctrine and more from ordinary habits of adjudication. Where credibility assessment is left largely unguided, commitments to equality and fair trial end up depending on how individual judges read conduct and testimony in particular cases. Drawing attention to this does not require a radical overhaul of procedure. It requires closer attention to how routine reasoning practices affect the day-to-day operation of constitutional guarantees in criminal trials[34].

Towards Neutral Credibility Assessment

Acknowledging the role that moral expectations play in credibility assessment does not mean that criminal procedure needs to be overhauled[35]. It also does not imply that judges can avoid making judgment calls altogether. Trials, particularly those that rely heavily on testimony, inevitably require evaluation in situations where evidence is incomplete or contested[36]. The concern, therefore, is not the existence of discretion, but the way it quietly operates and the lack of attention paid to how it shapes outcomes[37].

One place to begin is with how courts speak about victim conduct. References to delay, emotional response, or demeanour appear frequently in judgments[38], even where these matters are not central to the legal issues at hand. Often, they are included almost as a matter of habit. While such observations may seem harmless, they can influence how testimony is read and remembered[39]. Greater care in deciding when these details are truly relevant, and when they are not, would reduce the scope for moral expectations to enter credibility assessment unchecked.

Another issue lies in how credibility findings are explained. Courts commonly state that a witness is “reliable” or “unreliable” without setting out, in clear terms, why that conclusion has been reached[40]. This makes it difficult to tell whether doubts arise from problems in the evidence itself or from reactions to behaviour that does not fit familiar patterns. More careful explanation would not remove discretion, but it would make the reasoning behind credibility assessments easier to see and evaluate[41].

There is also a need to separate questions of conduct from questions of proof. Behaviour such as hesitation in reporting or variability in emotional expression is often treated as relevant to credibility[42], even though it does not form part of what the prosecution is required to establish. Allowing these factors to carry significant weight risks shifting attention away from whether the offence has been proved and towards how a victim has behaved more generally.

These suggestions are deliberately limited in scope. They do not seek to introduce new rules or rigid standards, and they do not deny the realities of trial adjudication. Their aim is more modest: to narrow the space in which unexamined assumptions influence fact-finding[43]. Small changes in how credibility is discussed and justified can make a meaningful difference.

Seen in this way, neutrality in credibility assessment is less about formal reform and more about everyday judicial practice. Paying closer attention to how credibility decisions are reached and explained offers one way of ensuring that they rest on evidence, rather than on expectations about how a victim ought to appear[44].

Conclusion

Credibility decides a lot in criminal trials. Often there is not much to go on beyond what people say happened. Judges still have to choose which version they accept. The law expects them to do this, but gives almost no real guidance on how credibility should be worked out. It is treated as something obvious, almost instinctive, even though it can decide the entire case.

What follows from this is that victimhood is not simply taken for granted. It is shaped during the trial itself. Courts look closely at behaviour—how quickly someone reported, how they acted, how they appeared while testifying. These points are usually described as ordinary observations. But they often depend on ideas about how a victim is meant to behave. When someone does not fit those ideas, doubts creep in, even if their account does not actually fall apart.

This is not about blaming judges. Most are acting within the space the law gives them. The problem is that the space is very open. Credibility assessments involve discretion, but that discretion is rarely acknowledged. It sits quietly in the background, shaping how facts are understood without being named or questioned.

The effects can be uneven. Two cases that look similar on paper can end very differently. Small differences in behaviour, or how those differences are read, can change the outcome. Because these decisions are framed as simple findings of fact, they are hard to challenge later.

None of this calls for dramatic reform. What matters more is attention to how credibility is explained. Saying more clearly why a witness is believed, and being careful about what is inferred from conduct alone, would make these decisions easier to examine. The way courts speak about credibility matters. It shapes whose stories are accepted, and what the law is willing to treat as real harm.

References

[1] Lucia Zedner, Victims (OUP 2002) 19–23.

[2] John Jackson, ‘Managing Uncertainty and Finality: The Function of the Criminal Trial’ (1998) 51 Current Legal Problems 101, 115–118.

[3] State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.

[4] State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71.

[5] Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence and Proof 241, 252–254.

[6] Lucia Zedner, Victims (OUP 2002) 19–23.

[7] Andrew Ashworth, The Criminal Process (4th edn, OUP 2010) 303–305.

[8] John Jackson, ‘Managing Uncertainty and Finality: The Function of the Criminal Trial’ (1998) 51 Current Legal Problems 101, 115–118.

[9] Tapas Kumar Kundu v. State of West Bengal, (2015) 2 SCC 271.

[10] Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence and Proof 241, 252–254.

[11] State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71.

[12] State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.

[13] Mirjan Damaška, Evidence Law Adrift (Yale University Press 1997) 78–82.

[14] Lawrence M Solan, The Language of Judges (University of Chicago Press 1993) 5–9.

[15] State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.

[16] State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71.

[17] Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (OUP 2014) 112–118.

[18] John Jackson and Sarah Summers, The Internationalisation of Criminal Evidence (CUP 2012) 256–258.

[19] Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart 1998) 98–101.

[20] Mirjan Damaška, Evidence Law Adrift (Yale University Press 1997) 78–82.

[21] Andrew Ashworth, The Criminal Process (4th edn, OUP 2010) 303–305.

[22] John Jackson, ‘Managing Uncertainty and Finality: The Function of the Criminal Trial’ (1998) 51 Current Legal Problems 101, 115–118.

[23] Mirjan Damaška, Evidence Law Adrift (Yale University Press 1997) 78–82.

[24] Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart 1998) 96–99.

[25] State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71.

[26] Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (OUP 2014) 112–118.

[27] State of Punjab v Gurmit Singh, (1996) 2 SCC 384.

[28] Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence and Proof 241, 252–254.

[29] Article 14 and Article 21, Constitution of India; Andrew Ashworth, The Criminal Process (4th edn, OUP 2010) 303–308.

[30] Tarunabh Khaitan, A Theory of Discrimination Law (OUP 2015) 42–45.

[31] Mirjan Damaška, Evidence Law Adrift (Yale University Press 1997) 78–82.

[32] State of Punjab v. Gurmit Singh (1996) 2 SCC 384.

[33] Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart 1998) 96–101.

[34] John Jackson, ‘Managing Uncertainty and Finality: The Function of the Criminal Trial’ (1998) 51 Current Legal Problems 101, 115–118.

[35] Mirjan Damaška, Evidence Law Adrift (Yale University Press 1997) 78–80.

[36] John Jackson, ‘Managing Uncertainty and Finality: The Function of the Criminal Trial’ (1998) 51 Current Legal Problems 101, 108–110.

[37] Andrew Ashworth, The Criminal Process (4th edn, OUP 2010) 303–305.

[38] State of Punjab v. Gurmit Singh (1996) 2 SCC 384.

[39] Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (OUP 2014) 112–115.

[40] State of Himachal Pradesh v. Gian Chand (2001) 6 SCC 71.

[41] Mirjan Damaška, ‘Free Proof and Its Detractors’ (1995) 43 American Journal of Comparative Law 343, 356–358.

[42] State of Rajasthan v. Om Prakash (2002) 5 SCC 745.

[43] Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart 1998) 96–101.

[44] John Jackson and Sarah Summers, The Internationalisation of Criminal Evidence (CUP 2012) 254–258.