Mihailis E. Diamantis, Invisible Victims, 2022 Wis. L. Rev. 1 (2022).
Abstract
The criminal courtroom is closed to invisible victims. They did nothing
to forfeit their claims to justice. However heinous the wrongs they suffered,
however certain their evidence, however eager the prosecutors on their cases,
no criminal tribunal will ever see them.
Invisible victims exist because of doctrines that immunize certain people
from any criminal inquiry and punishment. These people include suspects
whose alleged misdeeds occurred long ago, diplomats, legislators, pardon
recipients, and the deceased, among many others. Shielding such individuals
from criminal sanction often makes sound policy sense, but criminal law has
yet to reckon with the moral cost of deferring unconditionally to their interests.
This Article offers a more balanced approach by disentangling the
possibility of trial from the availability of punishment. In other words, criminal
law should permit courts to hold trials of suspects who are otherwise immune
from punishment. Even if sentencing will not follow, trials give victims a voice
and juries an opportunity to recognize and condemn wrongdoing. Familiar
procedural safeguards can protect unpunishable criminals' weightiest interests,
even as invisible victims receive the recognition they deserve.