Victims' Rights

In this section, we consider problems that travel in the reverse direction from oppressing defendants: how the criminal justice system treats victims and alleged victims. As a matter of terminology, before a conviction, it is better to avoid the term "victim," since that term often assumes what the jury has yet to decide. Instead, lawyers use the term "complainant," or "complaining witness," or simply "alleged victim." But when we speak in the abstract and assume a person has been harmed by the criminal action of someone, the term "victim" makes sense. (Outside the context of a criminal case, people often also use the term "survivor" for certain crimes). 

In a criminal case, the plaintiff is the government, either a state or the United States. Complainants are not parties but rather simply witnesses. At least traditionally, the prosecutor seeks to vindicate the interests of the government and the community over all, and not those of the individual alleged victim. A conviction similarly punishes for reasons, such as deterrence or retribution, that further the goals of society equally and not the victim in particular. Rather, these principles focus on the defendant. This has been the model for hundreds of years; criminal laws once "kept the King's peace," and even a criminal case from 500 years ago or more would be captioned Rex v. Defendant, or King v. Defendant, or as we saw earlier, Regina v. Dudley & Stephens. By contrast, tort lawsuits vindicate individual interests directly. 

Nevertheless, prosecutors often consult closely with complainants and will sometimes take into account their desires. Sometimes, statutes require such consultation, as we will see below. More generally, the last several decades has seen a growth of the "victims rights movement" that assists complainants and victims in other ways. 

Michael Vitiello's The Victims Rights Movement, published July 2023, contains this summary:

The Victims’ Rights Movement (VRM) has been one of the most meaningful criminal justice reforms in the United States. Every state and the federal government has adopted major VRM laws to enact protections for victims and increase criminal sanctions, and the movement has received support from politicians of all backgrounds. Despite recognition of its excesses, the movement remains an important force in the criminal justice arena.

Below we will read two cases that touch only the very surface of this issue. This issue is more procedural than substantive. After all, substantive law, culpability, and grading, focus on defendants, as they should. I just wanted to give some indication of the role played by victims and alleged victims and, in the case of the Epstein case, how this can become another pathology or weakness in the system. 

But please also consider how the victims' rights model fits in with or conflicts with the model we earlier discussed: retribution, deterrence, and a focus on the culpability of the defendant. Consider what could go wrong with a victim-centered approach, however appealing, in terms of treating different defendants similarly and fairly. 

You will not be responsible for the following material in any depth. Just understand it as background material.