"Invisible Victims"

the title of this post is the title of this intriguing recent paper authored by Mihailis Diamantis that I just found on SSRN.  Here is its abstract:

The halls of justice are forever closed to many who suffer grievous wrong.  They need not have done anything to forfeit their claim.  No matter how certain the evidence is or how eager prosecutors may be, no criminal court will admit them.  These victims are, for all intents and purposes, invisible to the criminal law.

Invisible victims exist because of doctrines that shield certain categories of people from any criminal justice inquiry.  These people include those whose alleged misdeeds occurred long ago, diplomats, legislators, pardon recipients, and the deceased, among many others.  Immunizing 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.  Criminal law should permit courts to try suspects who are immune from punishment.  Trial could memorialize invisible victims’ narratives in the solemn forum of the courtroom.  Where the evidence warrants, juries could validate invisible victims by condemning the wrongs they suffered.  Familiar procedural safeguards could protect unpunishable suspects’ weightiest interests even as invisible victims finally receive the recognition they deserve.