Consentia on Multidisciplinary Research

VICTIMOLOGY: STUDY OF VICTIMS OF CRIME AND AFTER EFFECTS

INTRODUCTION –

Victimology is the study of victimization; ‘Victimization’ is an asymmetrical interpersonal relationship that is abusive, painful, destructive, parasitical, and unfair. While a crime is in progress, offenders temporarily force their victims to play roles that mimic the dynamics between predator and prey, winner and loser, victor and vanquished and even master and slave. Victimology also deals with the concepts of method of approach, method of attack and risk assessment. If we know details of the victims’ personalities, then we may be able to determine, in conjunction with an analysis of the crime scene, how they were initially approached by the offender. [i]

Various theories of victimology exist, each with the aim of explaining why certain people become victims of crimes, and why others do not. Some people view some theories in a negative light, believing that to conjecture as to the causes of victimisation is tantamount to blaming the victim for crime, at least partly. Some of which are –

  • The interpersonal model describes violence against women as a consequence of individual psychology and abnormal interpersonal relations.
  • The family violence model explains the phenomenon more in terms of socioeconomic and educational factors.
  • The gender-politics model is an attempt to schematize abuse of women as attempts by males in general to maintain their position of power over females.
  • The lifestyle/exposure theory is a model of victimology that posits that the likelihood an individual will suffer a personal victimization depends heavily upon the concept of life style. Lifestyle determines the likelihood of personal victimization through the intervening variables of exposure and association.
  • Psycho-social Coping Theory

  Psycho-social coping is a general theoretical model from which any form of victimological       phenomena can be explained. The model uses behavioural versus legal concepts. Phenomenology, Control Theory, Stress Theory, Symbolic Interactionism and Behaviourism are the primary roots of this theoretical model. The coping process is the dynamic component of the model and is made up of four sequential phases:

• Prevention

• Preparation

• Action, and

• Reappraisal

Restorative justice is a new movement in the fields of victimology. The interventions of restorative justice in the context of the criminal justice are relatively new models of dealing with crime and offending behaviour. So acknowledging that crime causes injury to people and communities, restorative justice insists that justice repair those injuries and that the parties be permitted to participate in that process. Restorative justice programmes, enable the victim, the offender and affected members of the community to be directly involved in responding to the crime.

Victomology also deals with “Victim Offender Mediation” which  is a formal process for face-to-face meetings in the presence of a trained mediator between a victim of a crime and his/her offender who committed that crime. Often the victim and the offender are joined by their respective families and community members or other persons related to the crime event. In these meetings, the offender and the victim talk to each other about the victimization, the effects it had on their lives, and their feelings about it.

Considering the social justice, in terms of criminal justice, basic presumptions of a fair and just punishment is that punishment can be fair and just only if it is based on clear retributive principles. The redistributive concept of social justice and the concept of retributive criminal justice are the two basic foundations which are frequently interrelated.

VICTIMOLOGY WITH REFERENCE TO “RAPE” VICTIM –

Most simple definition of Rape, “A man /boy has sexual intercourse with a female without her consent[ii].”

A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:-

Against her willor Without her consentorWith her consent, when her consent has been obtained by putting her in fear of death, or of hurtor With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully marriedor With or without her consent, when she is under  [sixteen] years of age.[iii]

Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.[iv]

Rape is one of the offences that strike at the heart of the quality of life of the victim more so than other offences receiving considerably higher levels of police attention. Women continue to identify the following reasons as not reporting-

FEAR of not being believed, FEAR of judgements being made about their behavior, FEAR of process, particularly the court adversarial system, Fear of reprisals OR that the parties know each other.

Women who are raped suffer a sense of violation that goes beyond physical injury. They may become distrustful of men and experience feelings of shame, humiliation, and loss of privacy. Victims who suffer rape trauma syndrome experience physical symptoms such as headaches, sleep disturbances, and fatigue. They may also develop psychological disturbances related to the circumstances of the rape, such as intense fears. Fear of being raped has social as well as personal consequences. For example, it may prevent women from socializing or traveling as they wish.

As attitudes about rape have changed, society’s response to rape has also altered. For example, many law enforcement agencies have instituted practices that show greater sensitivity to rape victims. Some cities have formed special units of trained policewomen and counselors. Use of such specialists can help make it less difficult for a rape victim to report an attack. In addition, rape crisis hot lines and clinics have been established to help victims negotiate the legal system and overcome the aftereffects of being victimized.

The Human Rights Act of 1998 is likely to consider this victim protection as damaging the accused rights to a fair trial. Europe has a lot to answer for in the single-minded drafting of this law. The European Court of Human Rights emphasis on the defendant poses a probable threat to woman. It appears that the writers of the legislation approached the subject from one position, in considering the accused, as the victim rather than considering honest victims.

A women’s organization has moved the Bombay high court to seek a state mechanism to help rape victims by setting up a “Victim Compensation Fund”. The PIL,filed by Forum Against oppression of women and activist Meena Gopal in the wake of the Delhi gang rape incident, demanded the implementation of an SC 1995 judgment, which had asked all states to set up a system for a rape victim’s compensation. In 1995, the Supreme Court had directed the government to evolve a scheme for the compensation and rehabilitation of rape victims. “Such a scheme shall be prepared within six months from the date of this judgment,” the SC said. But even 18 years later, the scheme was yet to see the light of day, the PIL stated. Though the state did draft a scheme for the relief and rehabilitation for victims of rape but no Victim Compensation Fund, as required by law, had been formed, in violation of the victims’ rights, it added.[v]

And the Central government has also framed rules for compensation including interim compensation by the Special Court, to be paid by the State Government from the ‘Victim Compensation Fund’ established by it for the purposes of compensating and rehabilitating child victims. The Courts have emphasized time and again the need to deal with rape cases with the utmost sensitivity, to protect the victim by enabling her comfort through an in-camera trial, and to maintain her anonymity and save her further trauma and embarrassment through the non-publication of her name or any other information that would disclose her identity not just in the press, but even in the judgment.

INDIAN PERSPECTIVE AND JUDICIAL APPROACH TOWADRDS VICTIMOLOGY –

The Indian Constitution has several provisions which endorse the principle of victim compensation. The constellation of clauses dealing with Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) laid the foundation for a new social order in which justice, social and economic, would flower in the national life of the country[vi]. Article 41, which has relevance to victimology in a wider perspective, mandates, inter alia, that the state shall make effective provision for “securing public assistance in cases of disablement the guarantee against unjustified deprivation of life and liberty[vii] has in it elements obligating the state to compensate victims of criminal violence[viii].

The Code of Criminal Procedure, 1973 has recognized the principle of victim compensation. Section 250 authorizes magistrates to direct complainants or informants to pay compensation to people accused by them without reasonable cause. Again Section 358 empowers the court to order a person to pay compensation to another person for causing a police officer to arrest such other person wrongfully. Finally, Section 357 enables the court imposing a sentence in a criminal proceeding to grant compensation to the victim and order the payment of costs of the prosecution. In development of modern criminology towards victim rights has been expended in substantive and procedural laws by inserting section 166B In Indian Penal Code,1860and  Section 357A in Code Of Criminal Procedure 1973 have devised new tools to promote a right based remedy. Under this provision, victim needs to be rehabilitated; the victim may request the State or District Legal Services Authority to award him/her compensation.

Also, national crime statistics show a grim picture of women’s status in India, which is driven by social, economic and cultural factors. An analysis of the official statistics for India for the period 1991–2001 shows an overall increase in the crimes committed against women. During the period, there was an increase in the offence of rape committed on women by 5.34 percent, cruelty by husband and relatives by 11.32 percent, and molestation by 6.8 percent[ix]. As per official statistics for the period 2001- 2011, there is hike in crime rate in almost all area and especially offence of rape.

Case Laws Favoring for Victim Justice

The first landmark judgment where compensation to the victim ordered by the Madras High Court and upheld with some modifications by the Supreme Court of India was Palaniappa Gounder v. State of Tamil Nadu[x] where the High Court after commuting the sentence of death on the accused to one of life imprisonment, imposed a fine of Rs.20,000 on the appellant and directed that out of the fine, a sum of Rs.15,000 should be paid to the son and daughters of the deceased under Section 357 (1) (c) of the Code of Criminal Procedure, 1973.

Bhaskaran v. Sankaran Vaidhyan Balan[xi]in which the apex court while considering  the scope of Section 357(3) CrPC laid down that the Magistrate cannot restrict itself in awarding compensation under Section 357(3), since there is no limit in sub-section (3) and therefore the Magistrate can award any sum of compensation. Further, it was also held that while fixing the quantum of compensation, the Magistrate should consider what would be the reasonable amount of compensation payable to the complainant.

 In Hari Krishnan and the State of Haryana v. Sukbir Singh and others[xii], the court held “that the power of imposing fine intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the off ender. It is to some extent a constructive approach to crime and a step forward in a criminal justice system. It is because of this that it was recommended that all criminal courts should exercise this power liberally so as to meet the ends of justice, by cautioning that the amount of compensation to be awarded must be reasonable”. The court held that “in order that collective may not lose faith in criminal adjudication system and the concept of deterrence is not kept at a remote corner we are disposed to enhance the amount of compensation to Rs.30000/-”. The court referred to the case of Sarup Singh v. State of Haryana[xiii], wherein the apex court while reducing the sentence for the period already undergone by the accused under Section 304 IPC, directed to pay a sum of Rs. 20000 by way of compensation. The court further emphasized that the amount of compensation was enhanced taking into consideration the gravity of the injury, the strata to which the accused belongs, the milieu in which the crime has taken place and further keeping in view the cry of the society for the victims at large.

An analysis of the above case laws gives an indication that the courts in India, at least at the higher level, have started realizing the importance of the victim and the necessity to ameliorate the plight of the victim to the extent possible by restitution.

EMERGING TREND OF VICTIMOLOGY- VICTIM COMPENSATION SCHEMES –

Courts must not only convict and punish the guilty in criminal cases but should also award compensation to the victims, the Supreme Court has held.[xiv] 

The CrPC Amendments of 2008 brought along some much required changes into the legal framework after a long wait. The following are just some of the changes that this act made in the lives of the victim. These amendments came into place after a Malimath Committee came into place in order to analyse the need for reforms in our criminal justice system. The Committee has given its anxious consideration to the question as to whether this system is satisfactory or whether we should consider recommending any other system. The Committee examined in particular the inquisitorial system followed in France, Germany and other Continental countries. The Committee on balance felt that, a fair trial and in particular, fairness to the accused, are better protected in the adversarial system. However, the Committee felt that some of the good features of the Inquisitorial System can be adopted to strengthen the Adversarial System and to make it more effective.

The term “victim” is defined as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” also includes his or her guardian or legal heir.[xv]

 Any criminal act is considered as a wrong against the State and hence it is the duty of the State to institute the case on behalf of primary victim. The CrPC provides for the appointment of Public Prosecutor and Assistant Public Prosecutor to represent the case of victim on behalf of the state. The court may permit the victim to engage an advocate of his choice to assist the prosecution.[xvi]

 The 2008 Act added a clause in section 26 of the CrPC that any offence under section 376 and sections376A to 376D[xvii] of the Indian Penal Code shall be tried as far as practicable by a Court presided over by a woman.

The original section 41 of the CrPC gave power to the police to arrest any person without warrant who has been suspected of having committed any cognizable offence or against whom a reasonable complaint has been made.. The 2008Act has inserted new sections 41A, 41B, 41C and 41D, Section 41A requires the police to issue a notice to appear if the arrest of the person is not required under the provisions of 41(1).Section 41B lays down the requirements to be followed by the police-officer while making arrest. Section 41D gives the statutory right to arrested person to meet an advocate of his choice during interrogation.

In relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.[xviii]

 The 2008 Act has inserted a new section 357A which provides the mechanism to provide compensation to the victim. Every state government in consultation with the central government shall prepare a scheme for providing compensation to victim or his dependents who have suffered loss as a result of the crime and who require rehabilitation. The District Legal Service Authority or the State Legal Service Authority shall decide the quantum of compensation after the recommendations made by the court.

 The amendment to Sec.372 provides that the victim shall have a Right to Appeal against any order passed by the court acquitting the accused or convicting the accused.

On the 02.02.2012 In exercise of the powers conferred by section 357 A of the Code of Criminal Procedure,1973, (2 of 1974), the Lt. Governor of National Capital Territory of Delhi has approve the Victim Compensation Scheme for the purpose of providing compensation to the victims or their dependent(s) who have suffered loss or injury or require rehabilitation as a result of the offence.

 

CONCLUSIONS –

In the current decade of victim logical research, there is a substantial interest in the study of impact of crime on victims and ways to assist them. Assistance to victims of crime is of great significance because victims have suffered irreparable damages and harm as a result of crime. The problems of crime victims and the impact of crime on them is varied and complex. Therefore, the agencies of the criminal justice system should be receptive to the needs of the victims of crime and address their issues sincerely and empathetically. Like in the United States, Europe and the other developed countries, both the Government of India and the State Governments should enact exclusive legislations for victims of crime, as the existing provisions in the criminal laws are not sufficient.

No doubt, the social reaction towards victims is still of crucial importance. Victim-orientation includes greater respect and consideration towards victims and their rights in the investigative and prosecution process, provisions for greater choices to victims in trial and disposition of the accused, and a scheme of reparation/compensation particularly for victims of violent crimes. Though there are some provisions under the Indian Constitution and some sections in the Code of Criminal Procedure, 1973 to protect the rights of the victims and for providing compensation, the criminal courts at the lower level in India have ignored those provisions for a long time and not utilized them during their sentencing processes. However, this is on the discretion of the sentencing court and is to be paid out of the fine recovered. But it is heartening to observe that several judgments in both the High Courts and the Supreme Court in the last two decades or so have come to the rescue of victims of not only traditional crimes where the off ender is another citizen but also in cases where the victimization has been caused by the instrumentalities of the state itself. In addition to the existing provisions under the Indian criminal laws, a considerable importance was given in the Report of the Committee on Reforms of Criminal Justice System, headed by Justice V. S. Malimath on the need to provide “justice to victims of crime”. The analysis of the existing legal provisions in India for providing justice to victims of crime shows that there is a long way to go.

[i] Krishna Iyer, V.R. (1999) A Burgeoning Global Jurisprudence of Victimology and Some Compassionate Dimensions of India Justice to Victims of Crime

[ii] United Kingdom legal definition of Rape

[iii] Section 375 of Indian Penal code, 1860

[iv] Explanation to the section 375 of India Penal Code,1860

[v] The Times Of India

[vi] Article 38 of The Constitution Of India

[vii] Article 21 of The Constitution Of India

[viii] D.D Basu, 2003 on Constitution of India

[ix] Srinivasan, 2004, national Crime Bureau Record

[x] AIR 1977 SC 1323

[xi] AIR 1999 SC 3762

[xii] AIR 1988 SC 2127

[xiii] AIR 1995 SC 2452

[xiv] 14th may, 2013

[xv] Amendment Act, 2008 (“2008 Act”)

[xvi] 24(8) of Amendment Act, 2008

[xvii] Offences and punishment of Rape

[xviii]  The 2008 Act ,proviso sub-section (1) of section 157

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