Open Access Research Article
A COMPARATIVE OVERVIEW ON RIGHT TO PRIVACY OF HEINOUS CRIME VICTIMS
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Article Details
A COMPARATIVE OVERVIEW ON RIGHT
TO PRIVACY OF HEINOUS CRIME VICTIMS
AUTHORED BY
- DHANA VARSHA S,
Advocate,
Madras High Court
CO-AUTHOR - NANCHIL J DEEKSHITH,
Advocate, Supreme Court of India
ABSTRACT
This
paper presents a comparative analysis of the right to privacy of victims of
heinous crimes, with a focus on the affirmative actions taken in India and
analogous measures in other countries. If heinous acts such as rape are made
public, the victim’s dignity and right to privacy are compromised. The law also
penalises anyone who discloses the victims’ identities to the public. The legal
regulations governing such horrible acts around the world clearly state that
the victims’ identities must be protected. There are, however, exceptions to
this provision, which stipulate that if the officer in charge, the victim, or
the victim’s next of kin provide written agreement, the victim’s identity may
be made public. The study examines the legal frameworks, policies, and
practices in place to protect the privacy and dignity of victims, while also
ensuring the pursuit of justice. By drawing comparisons with international
standards and best practices, this research aims to identify areas of
convergence and divergence and provide recommendations for strengthening the
protection of victims’ privacy rights in India and beyond.
Introduction:
“What’s
in a name?”[1]
Shakespeare through one
of his characters in a play says the quote and intends to convey that naming
things is irrelevant. In its basic sense, the said phrase suggests that what
really matters is the essential qualities of the substance and the fundamental
characteristics of an entity but not the name by which it or a person is
called. It is understood that the name may be a convenient concept for
identification but the essence behind the same is the core of identity.
In another leg, this
identity being pivotal to one’s life, confers freedom of living, as a facet of
life, expresses genuine desire to have it. In fact, the Supreme Court of India
emphasizes that “Identity is equivalent to divinity”[2].
Whereas, a ‘victim’, who has been characterised as a person who individually or
collectively, have suffered harm, including physical or mental injury,
emotional suffering, economic loss, or substantial impairment of their
fundamental rights, through acts or omissions that are in violation of criminal
laws[3],
also has an identity upon which they bestow honour on it. In a patriarchal
society, the repercussions and aftermath are not always in the favour of the
victim. Most rape victims in any patriarchal society are looked upon in a
denigrating way and there is a tendency to boycott them. This poses a key
dilemma in the context of crimes involving rape and trafficking as to whether
the victim's name should be made public due to public interest or kept secret
to guarantee a fair trial. Apart from the issues of fair trial and media
trials, this is likely one of the main obstacles keeping rape victims and their
families from speaking out against this heinous crime. This is also the main
factor in why the victims ultimately commit suicide. Furthermore, this is
common in conservative families with rape victims because the goal is to marry
the woman, but once she has experienced sexual assault or rape, it is seen as a
bad omen.
The brain experiencing
embarrassment and mental distress does not discriminate between modern and
conservative societies. The victims facing harm to their reputations is par
equal to of any developing societies but the way in which these injuries
materialize differ from one and other.
Victims have a range of
protection needs. The United Nations 1985 Declaration calls on States to
implement measures to “minimize the inconvenience for victims” in the judicial
and administrative process, to “protect their privacy, when necessary, and
ensure their safety, as well as that of their families and witnesses on their
behalf, from intimidation and retaliation”.[4]
Every single right comes
with a corresponding obligation and here in this case, the victim has the right
and control over their privacy, which is their right, and the State on the
other hand has a duty to protect those rights so that their rights are not
infringed.[5]
Affirmative Action in India:
Indian Law defines the
term ‘Victim’ as an individual who has endured any loss or injury brought about
by reason of the act or omission for which the blamed individual has been
charged and the expression ‘victim’ includes his or her guardian or legal heir.[6]
The victim undergoes pain and suffering at different points of the event. The
primary form of victimisation occurs when the victim directly suffers as a
result of the perpetrator committing the crime. It is also important to take
into account how society as a whole contributes to the victim and its family’s
denigration. The secondary victimisation occurs post the crime where the victim
suffers injustice by the hands of the authorities who fail to protect the
victims’ rights. The protection of individual life, freedom, and property is
without a doubt the primary goal of a criminal justice system. The goal of
contemporary criminal law should be to punish and rehabilitate criminals in
society while also speaking for the broader public and advocating for their
needs and aspirations.[7]
Thus, the victim is
granted certain rights under section 228A of the Indian Penal Code of 1860 which
is then replaced by section 72 of the Bharatiya Nyaya Sanhita. It defends the
victims’ rights. Everyone is forbidden from printing or publishing the name of
the victim of sexual offences. It is illegal to print or publish the name of
the victim. If the victim has given permission to print or publish his or her
name, it may do so in a newspaper or other print or electronic publication.
According to the old section 228A of the Indian Penal Code, the victim must
first give their consent before any photographs or other personal information
about them may be published, the same is carried over to section 72 of the Bharatiya
Nyaaya Sanhita.
This
provision plays a major role to hide the identity of the victim. If the victims’
identity is not kept secret, their social life will be extremely challenging.
It also aids in safeguarding the victims’ family. The Indian penal code’s
section 228A does not apply when the victim’s name is published in the ruling
of the illustrious Supreme Court or High Court of India. The issue that needed
to be addressed was that the victims’ name was mentioned in the judgments of
the Trial Court and High Court, which was against section 228A of the Indian
penal code. The Supreme Court then emphasised that when stating that the courts
should use every effort to avoid disclosing the victims’ identity.[8]
The
right to privacy is protected as an intrinsic part of the right to life and
personal liberty under Article 21 and as a part of the freedoms guaranteed by
Part III of the Constitution.[9]
The Indian Judiciary in many similar aspects have upheld the right to privacy
of victims. In the case of Nipun Saxena v. Union of India[10],
the Court noted two ideal points that the identities of adult victims of rape
and child victims of sexual abuse need to be protected so that they are not
subjected to unnecessary ridicule, social ostracism and harassment, and issues
related to non-disclosure of the victims’ name and identity fall within this
scope under the POCSO (Protection of Children from Sexual Offenses) Act, 2012.
The Court further stated that “victim of a sexual offence, especially a victim
of rape, is treated worse than the perpetrator of the crime.” and issued
directions that “no person can print or publish in print, electronic, social
media, etc. the name of the victim or even in a remote manner disclose any
facts which can lead to the victim being identified and which should make her
identity known to the public at large”.
In
the case of Bhupinder Sharma v. State of Himachal Pradesh[11],
the Supreme Court clearly refusing to propose the name of the victim and
keeping in view the social objects of dispensing social victimisation or
shunning of the victims of heinous crime section 228A has been enacted and
suggested the use of the word ‘victim’ instead of the name in the course of
judgments. Further, in the case of State of Karnataka v. Puttaraja[12],
the Supreme Court had reinforced that the restriction under 228A IPC was
intended to ensure that the disclosure of identity of the victim involved in
certain types of offences is punishable, thereby protecting the divinity as to
say that of the victims.
Safeguards in the United Kingdom:
Similar
to that of India, in the United Kingdom, it is illegal to publish any detail
likely to identify someone as being such a victim/alleged victim. The
transmission of indecent images of the child victim of sexual exploitation are
also prohibited. The police might give some information about the crime to the
media to help with the investigation with victim’s permission. Further, under
the Police, Crime, Sentencing and Courts (PCSC) Act, it is illegal for police
to place “undue pressure” on a victim to agree to their phone being searched.
Victims must be told what information is being sought and what “reasonable”
line of inquiry officers are pursuing so that they can provide informed
consent.[13]
The landmark case of Osborne v. R.[14]
is a landmark case which cannot be overlooked while discussing this topic as it
dealt with the application of the Sexual Offences (Amendment) Act, 1992 regarding
the victim privacy in such heinous offenses.
Further,
in Northern Ireland, the new Justice (Sexual Offences and Trafficking Victims)
Act (Northern Ireland) 2022 provides for anonymity for 25 years after their
death will apply to all living victims or complainants of sexual offences
regardless of when the sexual offence took place; where a sexual offence case
is tried on indictment in the Crown Court, only certain persons are allowed to
remain in the court, this exclusion was further to the appeal court in certain
instances.[15]
Crime Victims’ Rights in USA:
In
the United States of America, the Crime Victims’ Rights Act (CVRA), enacted
within the framework of the Justice for All Act of 2004, establishes the rights
of crime victims in federal criminal justice proceedings, provides mechanisms
for victims to enforce those rights, and gives victims and prosecutors standing
to assert victims’ rights. Thereby, the criminal justice system in the United
States of America provides various rights exclusive to the victims; especially
in the privacy sphere, where the fear of harassment or retaliation from
offenders who may learn their names and find out where they live through public
records or court testimony deters victims from seeking justice is immense. This
also includes witness protection programs.[16]
Victims
have the right to protect the privacy of personal information, such as their
name or identity, address, phone number, and place of employment contained in
criminal justice documents, compensation records, and court testimony, as well
as contact information provided for notification purposes. Thus, enhancing the
safety of the victim which may be at stake if this personal information is made
public. Some states in the US extend this protection to witnesses or the
immediate family members of the victim. Certain special victim populations,
such as children, victims of sexual assault, domestic violence, stalking, or
human trafficking, the elderly, and other vulnerable adults have additional
confidentiality rights that address their unique privacy concerns.
The
following are the broad types of statutory safeguards for a victim's right to
privacy in relation to data found in criminal justice records: 1) prohibition
against compelling testimony relating to personal information in open court; 2)
exclusion or limited disclosure of victim identifying information in criminal
justice records, including law enforcement reports, court materials, and
prosecution documents; and 3) protection from release of addresses and/or phone
numbers provided for notice purposes.[17]
The Canadian Victims Bill of Rights:
Between
the constitutional heritage of the United States and the common law tradition
of Britain and other Commonwealth nations like Australia and New Zealand stands
Canada. Legislative changes are made in commonwealth jurisdictions without a
system of constitutional rights. Legislation has changed the traditional view
that privacy was not a legitimate justification for excluding something from
openness. Changes to the Criminal Code of Canada that deal with victim
anonymity, as well as privacy and secrecy in sexual assault procedures, can
therefore be found elsewhere, albeit with regional variances.
The
Canadian Victims Bill of Rights, which came into effect in 2015, is a federal
law that outlines the rights of victims of crime in Canada. It includes several
provisions related to privacy, such as: Right to Information, where the victims
have the right to information about the criminal justice system, including
information about the progress of the case and the offender's release from
custody; Right to Protection, where the victims have the right to have their
security and privacy considered throughout the criminal justice process; and
exclusive Right to Privacy where victims have the right to have their privacy
considered by criminal justice professionals and to request that their identity
be protected in court proceedings.[18]
The
Canadian courts can issue various orders to protect the privacy of victims,
including: Publication Bans, where Courts can issue publication bans to
prohibit the publication of information that could identify a victim or
witness; Sealing Orders, where the Courts may order that certain court records
or documents be sealed to prevent public access to sensitive information;
Testimonial Aids, where the victims, especially vulnerable or traumatized ones,
may be allowed to testify behind screens or via closed-circuit television to protect
their privacy. One good example would be when victims of sexual offences, the
victim of any offence (not just sexual offences) who is a minor must be
informed of their right to apply, and the court must grant the request when it
is made. This procedure was modified for
certain offences like voyeurism, child pornography, etc., are now mandatory
without the need for an application, and. In order to preserve the security of
a victim or witness, a similar innovation was finally adopted in 2015: the
option to testify under a pseudonym.[19]
The
Privacy laws in Canada, such as the federal Personal Information Protection and
Electronic Documents Act (PIPEDA) and provincial privacy laws, govern the
collection, use, and disclosure of personal information, including that of
victims.[20]
Further,
the victims have the opportunity to provide victim impact statements to the
court during sentencing hearings. These statements allow victims to express the
impact of the crime on their lives while maintaining their privacy. And in
certain cases, victims or witnesses may apply for non-disclosure orders to
protect their personal information from being shared with the accused or the
public.
It's
important to note that while there are strong protections for victim privacy in
Canada, there are also considerations of open court principles and the right to
a fair trial.[21]
Balancing these rights can sometimes be complex, and courts aim to strike an
appropriate balance between privacy rights and the principles of justice.
Privacy Laws for Victims in Australia:
In
Australia, the privacy of victims of crimes is protected by various legal
provisions at both the federal and state/territory levels. These provisions are
designed to safeguard the personal information and well-being of individuals who
have been victimized. While privacy laws in Australia primarily focus on the
protection of personal information, there are specific legal provisions and
guidelines that address victim privacy in the context of criminal justice.
Privacy
laws in Australia, such as the Privacy Act 1988[22]
(at the federal level) and similar laws in each state and territory, regulate
the handling of personal information by government agencies and private sector
organizations. These laws set out principles and standards for the collection,
use, and disclosure of personal information, which can include information
about victims.
Similar
to that of in Canada, in many Australian jurisdictions, victims have the
opportunity to prepare victim impact statements, which can be presented to the
court during sentencing proceedings. These statements allow victims to describe
the impact of the crime on their lives while maintaining their privacy.
In
cases where a victim may be at risk due to their involvement in a criminal
matter, witness protection programs may be available. These programs include
measures to protect the identity and privacy of individuals who are assisting
law enforcement. In cases involving institutional child sexual abuse, the
National Redress Scheme provides compensation and support to survivors. The
scheme includes provisions to protect the privacy of survivors.[23]
Likewise
in other Common-law Countries, Courts in Australia can issue suppression orders
or non-publication orders to protect the privacy of victims, witnesses, or
other parties involved in legal proceedings. These orders can prohibit the
publication of information that could identify individuals.
Conclusion:
Every
person has the right to a life that is worthy of respect, which includes the
right to one in which their privacy is not arbitrarily invaded. Victims of
heinous crimes like rape and sexual assault experience trauma and pain,
which may last for the rest of their life. Women are particularly affected by
such horrible situations because, despite the fact that they are the victims of
these crimes, their honour and dignity have been shattered. Therefore, if their
identify is revealed by the police or media authorities without their consent,
it would only increase their anguish, shame, and grief.
The
reason why so many heinous acts go unreported is because victims of sexual
abuse have always been treated differently where victims of rape have been
stigmatised for their behaviour. The State must ensure that their right to
privacy is safeguarded if it is to be guaranteed that victims of crimes have
confidence in those in positions of authority and come forward to report crimes
without fear of having their identities revealed. The authorities who reveal
the identities and personal information of victims without first receiving
consent from those victims should face severe penalties. While publicising the
case may be vital to inform the public about the seriousness of the crimes that
occur in the nation, the same can be accomplished without revealing the victims’
identity. What’s in a name if identity is not divinity?
[1] William
[2] Navtej Singh Johar & Ors v.
Union of India, AIR 2018 SC 4321
[3] Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power, available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-basic-principles-justice-victims-crime-and-abuse (last visited on March 1, 2025)
[4] Ibid
[5] Sucheta Dasgupta, To name the
rape survivor or not? How IPC’s Section 228A is often misread, The Wire, 2018
[6] The Criminal Procedure Code,
1973, s. 2(wa) and The Bharatiya Nagarik Suraksha Sanhita, 2023, s. 2(y).
[7] Stalin Arnold and Arnav Khanna,
A Critical Analysis of the Right to Privacy of Victims in Heinous Offences, 4
(2) IJLMH Page 2589 - 2598 (2021)
[8] State of Punjab v. Ramdev Singh,
(2004) 1 SCC 421
[9] Justice K. S. Puttaswamy (Retd.)
& Anr. vs. Union Of India & Ors., (2017) 10 SCC 1
[10] (2019) 2 SCC 703
[11] 2003 INSC 495
[12] 2003 (8) 2 SCC 364
[13] After a crime: your rights,
available at: https://www.gov.uk/your-rights-after-crime (last visited on March 7, 2025)
[14] [2024] EWCA Crim 1720
[15] Victim Charter, available at: https://www.justice-ni.gov.uk/publications/victim-charter (last visited on March 7, 2025)
[16] The Crime Victims’ Rights Act of
2004 and the Federal Courts Federal Judicial Center, available at: https://www.uscourts.gov/sites/default/files/cvra0001.pdf (last visited on March 8, 2025)
[17] About Victims’ Rights, available
at: https://www.victimlaw.org/victimlaw/pages/victimsRight.jsp (last visited on March 8, 2025)
[18] The Canadian Victims Bill of
Rights, available at: https://www.victimsfirst.gc.ca/serv/vrc-dvc.html (last visited on March 8, 2025)
[19] SS. 486.4 – 486.6 of Criminal
Code (R.S.C., 1985, c. C-46)
[20] The Personal Information
Protection and Electronic Documents Act (PIPEDA), available at: https://www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/the-personal-information-protection-and-electronic-documents-act-pipeda/ (last visited on March 8, 2025)
[21] Victim Privacy and the Open
Court Principle, available at: https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr03_vic1/p6.html (last visited on March 8, 2025)
[22] Privacy, available at: https://www.ag.gov.au/rights-and-protections/privacy (last visited on March 9, 2025)
[23] About the National Redress
Scheme, available at: https://www.nationalredress.gov.au/about/about-scheme (last visited on March 9, 2025)
Article Information
A COMPARATIVE OVERVIEW ON RIGHT TO PRIVACY OF HEINOUS CRIME VICTIMS
Authors: DHANA VARSHA S, NANCHIL J DEEKSHITH
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/29
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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