Victims of Crimes: A Need for Justice

1. Introduction

2. Brent Turvey
- The case of Payne v. Tennessee

3. Victims
- High Risk Victims
- Moderate Risk Victims
- Low Risk Victims

4. Victim Oriented Legislation

5. The Criminal Procedure Code, 1973

6. Concluding Remarks
- The proposed institutionalized payment of compensation would do away with ad hoc and arbitrary ex gratia payment of compensation by the state to the victims of violence.

Introduction

"In the rush to examine a criminal's behaviour, it is not difficult to become distracted by the dangling carrot of that criminal's potential characteristics and forget about the value of understanding his victims"

Brent Turvey

She was a gifted 14-year-old tennis player who idolized Steffi Graf and hoped to turn pro. He was a senior police official and president of the state lawn tennis club. He lured her to his office with a promise of special coaching that could make her tennis dreams come true, then groped her. This encounter set in motion a saga that has taken almost 20 years to unfold. The family of the girl, Ruchika Girotra, threatened to press charges. Shambhu Pratap Singh Rathore, a senior officer in the Haryana State Police, then waged a campaign of harassment and intimidation against Ruchika so severe that she eventually committed suicide. Her brother, Ashu, was falsely accused of stealing cars, and said he had been beaten and tortured in custody. All the while Mr. Rathore, a flamboyant, mustachioed presence with deep ties to many of the state’s top politicians, rose through the ranks, retiring in 2002 as a state police chief. Ruchika Girotra’s ordeal is hardly unique. Girls are molested all the time in India; powerful officials often abuse their office to avoid criminal prosecution; sclerotic courts are painfully slow and often corrupt. But the case is emblematic of the way India’s growing middle class, egged on by a lively news media hungry for sensational stories, is increasingly unwilling to accept these seemingly immutable truths and willing to fight back. Victims' voice is becoming more and more feeble and justice to them weaker and weaker.

Victimology is a young discipline. Although it's origin can be traced back to the 1940s, it was the feminist movement, civil rights movement and victim's rights movements which actually gave it its depth.[1] Victimology is the scientific study of victimization, including the relationships between victims and offenders, the interactions between victims and the criminal justice system — that is, the police and courts, and corrections officials — and the connections between victims and other social groups and institutions, such as the media, businesses, and social movements.[2] In criminology and criminal law, a victim of a crime is an identifiable person who has been harmed individually and directly by the perpetrator, rather than merely the society as a whole. However, this may not always be the case, as with victims of white collar crime, who may not be clearly identifiable or directly linked to the crime.

Victims are a forgotten party in the Criminal Justice system. While the accused is protected with all the resources available at the expenditure of the State, the victim is left to fend for himself with little or no support from the State machinery. India, at the present times, is faced with a situation where respect for criminal law has reduced to the minimum, one crucial reason being the hapless condition of its victims. The article seeks to revisit the situation prevalent in the subcontinent, highlighting the attempts of the judiciary to fill the gaps and the need to bring statutory changes to prevent the imbalance created.[3] The Supreme Court of the United States first recognized the rights of crime victims to make a victim impact statement in the sentencing phase of a criminal trial in the case of Payne v. Tennessee.[4]

The study of criminal victimization has developed to the stage where by Victimology is now regarded as a central component to the study of crime and criminology in India. This focus of concern has been matched by the growth and development of support services for the victim of crime alongside increasing political concern with similar issues. Among many reforms canvassed for improving Criminal Justice is one that advocates a victim orientation to criminal justice orientation. Victim orientation includes greater respect and consideration towards victims and their rights in the investigative and prosecution processes, provision for greater choices to victims in trial and disposition of the accused, and a scheme of reparation/compensation particularly for victims of violent crimes.[5]

Victims

An important aspect of investigating a violent crime is an understanding of the victim and the relation that their lifestyle or personality characteristics may have contributed to the offender choosing them as a victim. Victims are classified during an investigation in three general categories that describe the level of risk their lifestyle represents in relation to the violent crime that has been committed. 

High Risk Victims - Victims in this group have a lifestyle that makes them a higher risk for being a victim of a violent crime.  The most obvious high risk victim is the prostitute.  Prostitutes place themselves at risk every single time they go to work.  Prostitutes are high risk because they will get into a stranger's car, go to secluded areas with strangers, and for the most part attempt to conceal their actions for legal reasons.  Offenders often rely on all these factors and specifically target prostitutes because it lowers their chances of becoming a suspect in the crime.  Therefore, in this example, the prostitute is a high risk victim creating a lower risk to the offender.

Moderate Risk Victims - Victims that fall into this category are lower risk victims, but for some reason were in a situation that placed them in a greater level of risk.  A person that is stranded on a dark, secluded highway due to a flat tire, that accepts a ride from a stranger and is then victimized would be a good example of this type of victim level risk. 

Low Risk Victims - The lifestyle of these individuals would normally not place them in any degree of risk for becoming a victim of a violent crime.  These individuals stay out of trouble, do not have peers that are criminal, are aware of their surroundings and attempt to take precautions to not become a victim.  They lock the doors, do not use drugs, and do not go into areas that are dark and secluded.[6]

Victim Oriented Legislation

Justice requires that a person who has suffered must be compensated. Basically, the accused is responsible for the reparation of any harm caused to the victim. We have five statutes, under which compensation may be awarded to the victims of crime.

1. The Fatal Accidents Act, 1855

2. The Motor vehicles Act, 1988

3. The Criminal Procedure Code, 1973

4. The Constitutional Remedies for Human Rights Violation

5. The Probation of Offenders Act, 1958

The Criminal Procedure Code, 1973

If we focus on the provisions of Criminal Procedure Code, 1973

1. Section 250 authorizes Magistrate to direct complaints or informants to pay compensation to people accused by them without reasonable cause.

2. Section 358 empowers the court to order a person to pay compensation to another person for causing police officer to such other person wrongfully.

3. Section 357 enables the court imposing a sentence in criminal proceedings to grant compensation to the victim and to order the payment of cost to the prosecution. Though the principles underlying section 357 of the Cr. P. C. is very much the same sought to be achieved by the UN basic principles of Justice for Victims of Crime, its scope is extremely limited in as much as:

1. the section applies only when the accused is convicted;

2. is subject to recovery of fine from the accused when fine is part of sentence

3. When fine not part of sentence, a magistrate is may order any amount to be paid by way of compensation for any loss of injury by reason of the act for which the accused person has been sentenced.

4. In awarding the compensation, the magistrate to consider the capacity of the accused to pay.

Apart from invoking section 357 of the Cr. P.C., the victim may approach a higher court under section 482, Cr. P. C. to claim compensation, which empowers a higher court to exercise its inherent power in the interest of justice. The higher judiciary has applied this principle in the cases of Bodhisattwa Gautam[7],Delhi Domestic Working Women’s Case[8], Chandrima Das[9] andNilabati Behera.[10]

Apart from the Criminal procedure Code, Section 5 of the Probation of Offenders Act, 1958 gives limited discretionary power to the court to order reasonable compensation for loss or injury in cases where the accused is let off with admonition or released on probation.[11] In addition to this, The Motor Vehicles Act and the Fatal Accidents Acts are however beneficial legislations for compensating victims of certain types of acts resulting in criminal justice.

Victims' Justice

United Nations General Assembly in 1985 adopted a Declaration of the Basic Principles of justice for the victims of crime and Abuse of Power’. The declaration envisages the basic norms to be adhered to for the recognition of victim’s rights like right to information; treatment, restitution and compensation. This declaration was complemented in 2006 providing Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law and by the Guidelines for Child Victims and Witnesses.[12]

After realizing the gravity of the problem the United Nations General Assembly adopted a “Declaration of the Basic Principles of Justice for the victims of Crime and abuse of Power”. The Declaration envisages the basic norms to be adhered to for the recognition of victims’ rights to information, treatment, restitution, and compensation. Among the basic principles are:

1. Victims to be entitled to the mechanisms of justice and prompt redress for the harm suffered.

2. Victims to be informed of their rights in seeking redress through such mechanism.

3. Informal mechanisms for the resolution of disputes to be utilized to facilitate conciliated redressal of victims’ grievances.

4. Offenders should make fair restitution to victims and restitution should be part of the sentencing in criminal cases.

5. When compensation is not fully available from the offender or other sources, State should provide monetary compensation to victims who suffered serious physical or mental injury for which national Fund should be set up.

Our criminal justice system is not very well disposed towards the victims of crimes. In our Court room we have seen Judge has place to sit, Lawyers have place to sit, the accused has specific place and witness has witness box; but unfortunately the victim does not have any place inside the Court room, though we all are meant for victim’s plight. The present criminal justice system is accused oriented system.[13] Until recently the victims’ perspective was perceived as a complication, an inconvenience and a phenomenon that is marginal and avoidable. Post-Best Bakery case, a discussion has ensued on how rights and interests of victims and witnesses needs to be incorporated and institutionalized within the Indian legal system in order to ensure that the ends of justice are served.

Notwithstanding this glaring shortcoming, some legal provisions do exist in this regard. For example, rules of evidence protect victims and witnesses from being asked indecent, scandalous, offensive questions, and questions intended to annoy or insult them.[14] Criminal courts are also obliged to order payment of reasonable expenses incurred by the witness or complainant for attending the court.[15] Apart from these provisions, because of judicial activism, some basic protective measures for victims and witnesses are now being provided during trial. These measures include holding an in camera trial- procedure that is prescribed by the criminal law, Though in camera trials do not guarantee that the dignity of the victim / witness will be protected. In Bhanwari Devi’s case, the court had ordered an in camera trial to prosecute accused persons for gang-raping the victim. The trial resulted in isolating the victim behind closed doors, facilitating further victimization by the defense lawyers, their assistants and accomplices, with the male judge and Policemen being mute spectators. This is a provision which might be useful at times when the testimony of the witness / victim may be otherwise vitiated by a hostile court atmosphere. In addition, courts sometimes order suppression of the identity of a victim or witness from all official documents in order to protect her privacy.

Recently, the apex court has also made a move towards recording of evidence by way of video conferencing. The Supreme Court has stated that recording of evidence by way of video conferencing is permissible, provided it is recorded in the presence of the accused, and that such evidence would be as per procedure established by law.[16] Ultimately the extent to which the dignity, privacy and other interests of the victim / witness are protected in court, depend on the judge’s discretion and whether she wishes to be proactive. However, no specific legal provision exists for protective measures to victims and witnesses either before or after trial. A perspective on rights and interests of victims and witnesses includes three key issues: protection of victims and witnesses; victim participation in the proceedings; and the right to  reparations. The Best Bakery case rocked the conscience of the civil society with a total absence of protective measures for victims and witnesses even in important cases involving heinous crimes.

The Malimmath Committee in its recommendation perceived that ‘justice to victims’ is one of the inseparable imperatives of the criminal justice system in India. It argues for the holistic justice to victims of crime by allowing them, as a matter of right, in criminal proceedings as well as to seek compensation for loss or injury. The Malimath Committee can be credited with at least accurately stating the obvious – that the absence of a law on witness protection has resulted in a growing trend of hostile witnesses.

The entire criminal legal system functions primarily and substantially to provide justice to the victim. Giving the victims and witnesses a voice to testify in court without fear, participate in the court proceedings and have their rights and interests protected is of utmost importance for the legitimacy of the justice delivery system. Moreover, the present day understanding of justice necessarily includes accessibility to courts of law. Unless the judicial system is accessible to the people who demand justice, the system would exist only in name and not in substance. Needless to say, victims and witnesses would be amenable to accessing the system and give truthful testimonies only if the system guaranteed a protection of their and their families’ Privacy, security, identity and dignity.

Justice traditionally has been understood to involve prosecution, conviction and punishment of guilty in order to restore public order, security and respect for rule of law. The victims, survivors and witnesses go to the altar of the court for a variety of reasons: the desire for the truth to be known, to speak for the dead, to demand accountability and to demand justice.[17]Some years ago, Justice Albie Sachs, a member of the Supreme Court of South Africa said: Justice is not only in the end result; it is also in the process.[18] These words spell out the expanded meaning of justice in the present day’s context. The preoccupation of the justice delivery system ought to be not only with whether a conviction or acquittal was secured, but whether the judicial system was able to inspire the confidence of victims and witnesses to truthfully testify before it in order to ensure conviction of the guilty.

It is a fact that in India, thousands of violent offences go unreported. The effects of crime, evaluated in terms of the psychological and physical damage caused to hundreds of thousands of Indians every year, can be devastating. However, it is a fact that the victims and relatives are reluctant to divulge any information concerning heinous offences, due to fear of victimization by and reprisals from the perpetrators. Given this state of affairs, crime detection (especially in heinous offences) and crime prevention can become arduous jobs for the police. Undoubtedly, the role of witnesses in assisting police investigations and giving evidence in court is crucial to the success of criminal prosecutions.

Concluding Remarks

Protection of victims and witnesses is a very complicated issue; hence it requires serious thought, a thorough discussion, meticulous planning and committed implementation against potential miscarriages of justice. The programmes are designed to serve the interests of key individuals who can provide essential evidence, victims of crime and innocent bystanders. Victim and Witness Protection Programme necessarily involves coordination between a number of agencies and including the police, prosecutors and courts, a large financial allocation, several buildings and human power among other resources. Due to the heavy expenses involved, the programme is usually restricted to cases of very serious crimes, and is resorted to only in extreme situations. All such programmes have faced difficulties and setbacks; none have had a hundred percent success. Most programmes are more successful in ensuring the physical safety of witnesses, than in their and their family members. Individuals who live under witness protection programmes usually experience a total disruption of their and their family members. Some witnesses get frustrated with the confinement, which is necessary to protect the witness from intimidation; most witnesses face difficulties in rebuilding their lives in a new community; some find the pressures of concealment and pretence too great, leading to problems of mental illness and even suicide. Police and prosecuting authorities are deeply concerned that if the life of the victim / witness improves, even marginally, as a result of the programme, that gives scope to the court to see their evidence as bought or tainted.

A careful peep into the Indian Criminal justice Delivery System reveals that victims of crime in India are either compensated comprehensively nor allowed to participate effectively in the investigatory, prosecutory and sentencing process. In the background of the proposals for reform suggested by the law Commission as well as the Malimath Committee and relevant statutory provisions and schemes satisfactorily operating in other countries, It is high time to review the present law governing payment of compensation to victims of crime in India and to evolve in India an effective system of reparation of victims of crime. It is also imperative to create an institutionalized system of payment of compensation by creating ‘Victim compensation Fund’. The proposed institutionalized payment of compensation would do away with ad hoc and arbitrary ex gratia payment of compensation by the state to the victims of violence.

Dr. J. S. Patil**

* A Paper presented at the Karnataka State Prosecuting Officers IX State Level Conference held on March 6 & 7, 2010 at Bangalore

** Vice Chancellor, Karnataka State Law University, Hubli

[1] http://www.lycos.com/info/victimology.html

[2] Andrew Karmen, 2003, Crime Victims: An Introduction to Victimology, WadsworthPublishing, ISBN 9780534616328.

[3] Dipa Dubey, Compensating Victims - The Need for Legislative Intervention, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=979453 logged on March 2, 2010

[4] 501 U.S. 808 (1991).

[5] N. R. Madhav Menon, “Victim Compensation Law and Criminal justice: A plea for a Victim Orientation in Criminal justice” in Criminal Justice by K. I. Vibhute, Eastern Book Co., Lucknow, 2004

[6] http://www.deviantcrimes.com/victimology.htm

[7] Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty 1995 INDLAW SC 1920

[8] Delhi Domestic Working Women's Forum vs Union of India 1994 INDLAW SC 1120

[9] Chairman, Railway Board vs Chandrima Das 2000 INDLAW SC 600

[10] Nilabati Behera vs State of Orissa 1993 INDLAW SC 999

[11] Sec 5 of the Probation of Offenders Act, 1958: Power of the court to require released offenders to pay compensation and cost.

[12] Dr. Purvi Pokhariyal, “Post U.N. Declaration on Victims” scenario in India – Assessment of

victim’s position in India, http://www.indlawnews.com/Newsdisplay, logged on 4-3-2010.

[13] Sri D.K.Deb Roy, Indian Society of Victimology,  http://kamrupjudiciary.gov.in/documents logged on 4-3-2010.

[14] Sections 151 & 152, Indian Evidence Act, 1872

[15] Section 312, Code of Criminal Procedure, 1973

[16] 2003 INDLAW SC 320

[17] Vahida Nainar, Giving Victims a Voice, UN CHRONICLE No. 4, 1999

[18] Statement delivered at the University of Toronto, Faculty of Law, October 1999.