Emerging Concern for the Victim of Crime (By- Nishant Kumar)
Emerging Concern for the Victim of Crime
Authored
By- Nishant Kumar
“Of all the persons
involved in the criminal justice system, the VICTIM is the one who has most
often been overlooked”
-
Alfred Cohn and Roy Udolf
Introduction
Victims
of crime are important players in criminal justice administration both as complainant/informant
and as witnesses for the police/prosecution. Despite the criminal justice
system being heavily dependent on the victim, it has however been more
concerned with the offender and his interests almost subordinating or
disregarding the interest of victim. In the civil law system generally the
victims enjoyed a better status in administration of justice. Towards the last
quarter of the twentieth century, the common law realized the adverse
consequences arising from this inequitable situation and enacted laws giving
rights of participation and compensation to the victims. In the Constitution of
many countries, victims’ rights have been recognized by making necessary
changes in criminal justice procedures. Victim’s participation in plea bargain
negotiations has been shown to contain their vengeful instincts, decrease their
assessment of the system being too lenient on criminals and inculcate feeling
of fairness in the whole process. Increased victim satisfaction will in effect
enhance the efficiency of the criminal justice system by ensuring his future
support to the system[1].
In
the context of criminal justice system there are victims of crime and also
victims of abuse of power. These days, the study of criminal law would remain
incomplete without taking into consideration the circumstances and situation of
the victim. The victim is one of the central figures in the criminal process
that deserves the attention of the society. The criminal justice system,
without the cooperation of the victim of crime and victims of abuse of power
cannot work. The victim has due concerns in the administration of criminal
justice. Victim puts forward complaint to competent authority and sets the
criminal law into motion. During trial he provides relevant
evidence
to the court and is principal witness. “Witnesses” as Bentham said “are the
eyes and ears of justice[2]”.
If the victim/witness is incapacitated from acting as the eyes and ears of
justice, the trial gets paralyzed and cannot be called as a fair trial.
Universally
efforts are being made by the States collectively and independently to enhance
the role of the victims in the criminal justice system. Major amendments have
been made in the criminal procedures to advance various rights to such victims
of crime. The involvement of the victims of crime is required for reporting of
crime, investigation of the case, trial of accused, determining the sentencing
and even in aftermath of the sentencing i.e. restoration and rehabilitation of
victim and also the convict. A number of studies have proved that while victims
may prefer not to report the crime, or set the criminal law in motion for some
obvious reasons, there are others who actively participate in the criminal
proceedings against the offender. Globally it is felt that there is a need to
provide victims their participatory rights to secure justice, restitution and
rehabilitation. Many countries have assured to specifically accord
participatory rights to the victims of crime.[3]
Criminology is
the scientific study of crime, including its causes, responses by law
enforcement, and methods of prevention. It is a sub-group of sociology, which
is the scientific study of social behavior. There are many fields of study that
are used in the field of criminology, including biology, statistics,
psychology, psychiatry, economics, and anthropology.[4]
The
word “victimology” has been derived from a Latin word Victima and a Greek word
Logos which means science of victims. The term was developed by a French lawyer
in the middle of twentieth century3. It is basically a study of crime from the
point of view of victims suffering from physical injury or economic loss.
Victimology
is relatively a new study in the field of criminal law. Victimology is
concerned with the role of victims in the criminal justice system, their rights
and deals with protecting their dignity and human values. Victimology is an
academic scientific discipline which studies data that describes phenomena and
causal relationships related to victimizations. This includes events leading to
the victimization, the victim’s experience, its aftermath and the actions taken
by society in response to these victimizations. Therefore, victimology includes
the study of the precursors, vulnerabilities, events, impacts, recoveries, and
responses by people, organizations and cultures related to victimizations.
Interrelationship Of Criminology, Penology And
Victimology
Victimology
is the latest branch of criminology which deals with the study of victims who
suffers at the hands of wrongdoer. Criminology is the study of crime and
criminals. It aims at discovering the
causes of criminality and effective measures to fight against crimes. Penology
is associated with criminal justice policies pertaining to punishments, modes
of punishments, forms of punishments etc. Victimology, according to some
thinkers is a branch of criminology which is concerned with victims of crime.
Though there is an interrelation between criminology, penology and victimology,
yet there is need to give specific attention to study victimology.
As
such, issues in victimology, are central to the victim and is required to be
studied in the wider conspection of criminal justice system along with
criminology and penology. The adjective law of evidence and procedural law
required to respect rights and assure meaningful remedies to the victims in a
dignified manner.
Historical Developments In Victimology
The
European countries suffered countless hardships in the shape of deaths and loss
to property during Second World War. After the end of war some eminent scholars
started exploring the concept of victimology as an independent study other than
criminology. The scientific and technical research pertaining to victimology
can be traced back to 1950. Till then the criminologists were focusing their
attention towards the wrong doers and crimes itself. Then the criminologist
shifted their focus towards the victims of crime and abuse of power. People
like Mendelson and Von Hentig, started the research in that direction and bagan
to study the victims of crime.
In
1960s movements pertaining to victim compensation and rehabilitation started
across the globe. In Europe, the Convention on the Compensation of Victims of
Violent Crimes, 1983 incorporated the essential rights of victims. The Council
of Europe recommended changes and modifications in criminal justice by
incorporating victim’s rights in every stage of criminal proceedings. Following
this recommendation, many countries enacted laws aimed at providing increased
participation of the victims of crime in the criminal justice process. For
example, the Criminal Injuries Compensation Act, 1995 of the U.K., the Victim
and the Witness Protection Act, 1982 of the USA, the Victims’ Rights and
Restitution Act, 1990 of the USA, etc. In an informative report "Criminal
Justice: The Way Ahead" presented to the British Parliament in February
2001, the UK Home Department made the following recommendation for reforms in
the criminal justice system with the observation:
We
will put the needs of victims and witnesses at the heart of the criminal
justice system and ensure they see justice done more often and more quickly. We
will support and inform them, and empower them to give them best evidence in
the most secure environment possible.[5]
National And International Development In Victimology:
During
the past thirty years efforts have been made to initiate victim orientation
schemes by the Western countries for rehabilitation, protection and financial
assistance to the victims of crime and to prevent abuse of power. Only
recently, long after the Second World War as a result of the activities of
certain progressive thinkers and activists in various advanced countries, like
the U.K., Canada, U.S.A., Australia and New-Zealand, the focus has marginally
shifted towards the unfortunate victim, who generally is the most affected
party in the crime and also the party who naturally deserves redress. Just to
take an example: Canada-Manitoba enacted the Justice for the Victims of
Crime Act, 1986. New-Zealand has also enacted the Victims of Offences Act,
1987. In U.K., the Criminal Justice Act, 1988 has made new provisions
for payment of compensation by the Criminal Injuries Compensation Board. In
U.S.A. the Victims of Crime Act, 1984 is made part of the federal law.[6]
The United Nations General Assembly on 29th
November, 1985 made a Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power adopting national and international perspectives
pertaining to the rights of victims of crime and victims of abuse of power. It
was also declared that offenders or third parties responsible for their
behaviour should, where appropriate, make fare restitution to victims, their
families or dependents. This Declaration has been described as ‘Magna Carta’ of
rights of victims’ worldwide.
In
India recently various developments are noticed in the criminal justice system
like Fair Trial, Speedy Justice, Public Interest Litigation, Plea Bargaining,
Witness protection, Free Legal Aid, Judicial Activism etc. speaking about
fairness in the Criminal Justice Process. Most part of the Indian Criminal Law
was codified by the Britishers during colonial rule by enacting three major
criminal law statutes viz: the Indian Evidence Act, 1872, the Indian
Penal Code, 1860, the Codes of Criminal Procedure, 1861, 1872, 1882 and
1898(now the Code of Criminal Procedure, 1973). These laws are amended from
time to time to meet the challenges. There are also Special and Local
laws
which deal with various issues pertaining to victims for example: The
Immoral Traffic (Prevention) Act, 1956, the Dowry Prohibition Act, 1961,
the Indecent Representation of Women (Prohibition) Act, 1986, The
Commission of Sati Prevention Act, 1987, the Protection of Women from
Domestic Violence Act, 2005). The Constitution of India, 1950 guarantees
certain fundamental rights to citizens that are enforceable by the judiciary.
Recently the Criminal Law (Amendment) Act, 2013 has included penal and
procedural provisions keeping in view the need to protect the victims.
Judicial
Trends: In the violation of human rights, the Supreme Court of India has also
emphasised the need for compensation in various judicial pronouncements[7].
The courts in India while Sentencing the accused with imprisonment do impose
fine. But with long term imprisonment the fine was treated to be burden on
convict’s family9. As such there was also a trend to increase fine by reducing
the terms of imprisonment10. Presently with the introduction of Section 357 and
357A in the Code of Criminal Procedure, 1973 new compensatory jurisprudence has
emerged. The apex court has emphasised that trial court must take into account
the need to compensate on the conviction of accused as a mandatory
consideration11. The Supreme Court has specifically issued guidelines for the
awarding of compensation to rape victim. The court issued directions to
constitute Criminal Injuries Compensation Board[8].
Restorative Justice Through Compensation And
Rehabilitation:
Western
countries adopted schemes for payment of victim compensation and enacted laws
on this topic. New-Zealand was the first country to adopt victim compensation
scheme in 1963. United Kingdom followed New-Zealand and introduced Criminal
Injuries Compensation Scheme in 1964 to provide ex-gratia compensation to
victims of specific crimes. The Criminal Injuries Compensation Board was
constituted to administer compensation scheme. In Australia, State of New South
Wales was the first State to enact legislation in this respect, and Queens
Land, South
Australia
and Western Australia followed it in 1968, 1969 and 1970 respectively. The
State of Victoria enacted more comprehensive law in 1972, than the other States
followed. In the USA it was the State of California, in the year 1965, to
legislate on victim compensation; most of the other States also followed California.
The Federal Government of the USA also enacted (1) The Victim and Witness
Protection Act, 1982, (2) The Victims of Crimes Act, 1984 which was
enforceable throughout the country[9].
The Indian
Penal Code, enacted in 1860 as such did not contain any provision for
awarding compensation to the victim. However, under offences against
property, Chapter XVII, the stolen property if recovered is liable
to be returned to the victim/owner. The Code of Criminal Procedure, 1898
contained Sections 545 and 546 which empowered the trial court to award
relief to the victim in the form of compensation to the victims to be paid out
of fine imposed on the accused when he was convicted and sentenced. But the
payment was allowed only when the judgment became final, subject to recovery of
the fine. The Code of Criminal Procedure, 1898 has been thoroughly revised and
re-enacted as the Code of Criminal Procedure, 1973. Provisions of Sections 545
and 546 of the old Code were included as such in the new Code as Sub-Sections (1),
(2) and (5) of Section 357 and Sub-Sections (3) and (4) were newly inserted to
make Section 357 more victim friendly. The new provisions are meant to be dealt
with those offences where, fine is not part of the substantive punishment and
to enhance the discretionary powers of the trial/appellate courts to award
compensation. Section 357-A has been newly inserted by the Code of Criminal
Procedure (Amendment) Act, 2008. This Section provides for a scheme for
providing funds by the State Government in co-ordination with the Central
Government to provide compensation to the victim of crime or his dependents who
have suffered any substantial loss or any injury as a result of an offence.
Further by the Criminal Law (Amendment) Act, 2013, new Sections i.e. Section
357B and 357C have been added. Section 357B provides for compensation to be in
addition to fine under Section 326A or Section 376D of the Indian Penal Code,
1860. Section 357C provides that all hospitals, public or private, whether run
by Central Government, the State Government, local bodies or any other person,
shall immediately, provide the first-aid or medical treatment, free of cost, to
the victims of any offence covered under Section 326A, 376, 376A, 376B, 376C
376D or Section 376E of the Indian Penal Code, 1860 and shall
immediately inform the police of such incident.
Rights Of Victims:
In a criminal justice system like in India,
victims of crime have various rights like right to lodge a complaint, right to
speedy justice, right to be heard, right to fair trial, right to get
information, right to be present in the court at hearing, right to protection
against retaliation, right to address the court, right to consult officials,
cross examining witnesses, right to produce evidence in his favour, right to
incamera proceedings during inquiry and trial of certain cases like rape,
domestic violence, right regarding maintaining of confidentiality of name and
address in prosecution of rape cases, right to prefer an appeal against any
order passed by the court acquitting the accused or convicting for a lesser
offence or imposing inadequate compensation, right not to be asked indecent
questions as to previous immoral character in rape cases etc. There is
inclusion of new Chapter XXI A on plea bargaining which also affords
complainant/victim to be part of mutually satisfactory disposition.
Rights And Remedies For Victims Of Crime:
Remedies
required for victims especially like the identity of the victim to be kept
confidential, trial of certain offences must be to the exclusion of general
public, recording of the statements of victims, use of screen recording of the
statement through video conferencing, crossexamination through Judge, change in
the venue of trial, physical protection to the victim of crime etc. The
important feature of the chapter is regarding discussion about certain rights
to the victims of crime like, right to notice/information, right to be present,
analyzing provisions pertaining to awarding sentence to offender vis a vis
victim rights, right to privacy, right to consult officials, right to
protection, victim-witness rights through assistance programmes, victim
compensation fund and mechanism, right of restitution, right to address the
court etc. that are prevalent in the countries like U.S.A., U.K., New Zealand,
India etc.
In a
recent case Lalit Yadav v. state of Chhatisgarh[10]
the Supreme Court held that as far as possible the court should not disclose
the identity of the victim. It is against the section 228A of IPC which states
as follows:
- Whoever prints or publishes the
name or any matter which may make known the identity of any person against
whom an offence under section 376, section 376A, section 376B, section
376C, section 376D or section 376E1 is alleged or found to
have been committed (hereafter
in
this section referred to as the victim) shall be punished with imprisonment of
either description for a term which may extend to two years and shall also be
liable to fine.
- Nothing in sub-section (1)
extends to any printing or publication of the name or any matter which may
make known the identity of the victim if such printing or publication is
- by or under the order in
writing of the officer-in-charge of the police station or the police
officer making the investigation into such offence acting in good faith
for the purposes of such investigation; or
- by, or with the authorization
in writing of, the victim; or
- where the victim is dead or
minor or of unsound mind, by, or with the authorization in writing of,
the next-of-kin of the victim:
The discloser of
identity of the victim is punishable under this section. Their identity should
be hidden and not be disclosed.
Conclusion:
The
trauma of victimization is a direct reaction to the aftermath of crime. Crime
victims suffer a tremendous amount of physical and psychological trauma. The
primary injuries victims suffer can be grouped into three distinct categories:
physical, financial and emotional. When victims do not reive the appropriate
support and intervention in the aftermath of the crime, they suffer “secondary”
injuries.
The
physical injury suffered by victims maybe as apparent as cuts, bruises, or
broken arms and legs. However, it is not uncommon for the victims to being
fatigued, unable to sleep, or have increased or decreased appetites. Many
victims believe that the stress caused by victimization endangers them to
physical problems later in life. Victims or survivors suffer financially when
their money or jewelry is taken, when their property is damaged, when their insurances
doesn’t cover all expenses, and when they must pay funeral cost.
In
order to have a better understanding of aftermath of criminal victimization, we
must begin to accept the reality that crime is random, senseless and can happen
to anyone regardless of precaution that are taken to prevent being victimized.
We must also understand that victim’s life is turned upside down when he or she
becomes a victim of crime. In order to help victims learn to trust society
again a sense of balance and self- worth, we must educate all those who come in
contact with victims and survivors. With proper training, all professionals
will be better able to assist victims in dealing with aftermath and trauma of
victimization.