In recent years, the phenomenon of ‘victims’ rights’ has been catapulted to the forefront of policymaking on both domestic and international platforms. While the criminal justice system has traditionally been conceptualized as a mechanism for the state to resolve its grievances against suspect, defendants and offenders, it’s now broadly accepted that justice cannot be administered effectively without due recognition of the rights and interests of other parties affected by criminal action.
International Perspective
According to the 1993 Vienna World Conference on Human Rights, all forms of violence against women are human right violations and it obligates State to a due diligence obligation to prevent such violence, to protect victims, punish perpetrators and provide compensation to those who have suffered from it.
Spurred by the Vienna Conference, in 1993, the UN General Assembly adopted the Declaration on the Elimination of Violence against Women (DEVAW), which is the first international declaration to hold the State responsible and accountable for atrocities committed against women. The DEVAW defines violence as:
Any gender-based violence that results in, or is likely to result in, physical, sexual or harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in the family, such as battering, sexual abuse or female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.
The convention on the Elimination of All forms of Discrimination against Women (CEDAW) prohibits violence affected upon a woman by reason of her being a woman. It requires state to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based in the idea of inferiority or the superiority of either of the sexes or on stereotyped roles of men and women. This ambitious provision seeks to achieve a utopian state of affairs.
The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN General Assembly, 1985), considered the ‘magna carta ‘ for victims, provides the basic framework of principles which in the last two decades have been vociferously debated and converted as victims’ rights by some of the developed countries.
The Basic Principles included in the UN Declaration for Victims are :
1. Access to justice and fair treatment: This right includes access to the mechanisms of justice and to prompt redress, right to be informed of victim’s rights, right to proper assistance throughout the legal process, and right to protection of privacy and safety.
2. Restitution: Such restitution should include payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights. Government should review their practices and regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal Sanction.
3. Compensation: when compensation is not fully available from the offender or other sources, State should provide financial compensation at least in violent crimes, resulting in bodily injury for which national funds should be established.
4. Assistance: victims should receive the necessary material, medical, psychological, and social assistance through governmental, voluntary, and community-based means. Police, justice, health, and social service personnel should receive training in this regard. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.
With regard to the restitution and compensation in the above Declaration, it is stated that offenders should make a fair restitution to victims or their families; restitution should be part of the sentencing in criminal cases; and when compensation is not fully available from the offender, the state should provide monetary compensation to victims who suffered serious physical or mental injury for which a national fund should be set up (United Nations, 1985). The demand of justice is that a person who has suffered must be compensated.
The responsibility to compensate lies on two agencies: (a) Accused, (b) State
The accused must be made responsible for victim reparation. It might be that the accused is too poor to compensate. In such cases the State which fails in its duty to protect the life, liberty, and property of its citizens should compensate the victim for loss and suffering. Thus, even when the State has no responsibility under the international or national law to pay compensation, Article 13 provides that the establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Article 14 provides that ‘victims should receive necessary material, psychological and social assistance through governmental, voluntary, community based and indegenious means. It alludes to the idea that victims should be empowered to resume their lives to as full an extent as possible, and thus incorporates the range of measures that may be therapeutic or material.
Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) guarantees the right to physical health, including sexual and reproductive health, and mental health. Issuing an authoritative interpretation of Article 12, the Committee on Economic, Social and Cultural Rights, its treaty-monitoring body, said that a state’s obligation to protect women’s rights includes health in the context of gender-based violence. Health services’preventive, curative, and rehabilitative’should be physically and economically accessible. Hence India has an obligation to make such services available to survivors of sexual violence.
Why some victims are unwilling to report the crime to the police, and why police fail to obtain statements of true feelings from victims; and secondly, is it the responsibility of the criminal justice system to find the truth with regard to an offence in order to establish peace in society, or to deal with matters relating to the welfare of victims?
There may be number of reasons as to why victims do not come or at least hesitate to come to the police with a complaint. These are: 1. victim is apprehensive of unfriendly behavior by the police; 2. fear of reprisals by a powerful offender who maintains a good relationship with the police officers; 3. apprehension of being despised and socially ostracized in sex offence cases; and 4. to avoid an anticipated increase in financial burden; 5. lack of confidence in the efficacy of police actions.
With regard to the second issue it is opined that the purpose of criminal justice does not end in convicting the offender. A crime creates social imbalance in that victims of offences suffer economic, financial, and physical impairment. Until and unless these losses are made good justice cannot be said to have been done. This is the essence of criminal justice. The criminal justice system cannot avoid this reality if it wants to establish peace in society. It should be the responsibility of the criminal justice system to ensure complete restoration and rehabilitation of victims of crime. According to them justice is not established in full with the punishment of the offender, the victims’ plight must also be addressed by the criminal justice system
The police are not temperamentally suited to jobs relating to the welfare of a crime victim. He does not deny the necessity of victimology, but feels that some department other than the police can undertake jobs relating to the welfare of victims. The group got divided over this issue. It has been decided that these issues may be taken to the plenary session for a greater audience.
Crime and the Cost
To study the costs related to the crime and criminal law then we need to look into the theory of ‘transaction cost by Ronald H.Coase. Transaction cost means the cost incurred in the maintenance and protection of the rights. Criminal law aims at protecting and maintaining the liberties and rights of the civilians and thus the cost incurred by the State on the maintenance of Police, Jails, and Compensations etc are all included in the transaction cost.
Comparing Rape and Acid Attack
Rape is one of the most heinous crimes against mankind. No other crime includes all the costs i.e. transaction cost + social cost + psychological cost in one. A victim of rape suffers social stigma as well as psychological trauma. There has been a growing trend to award compensation to rape victims.
The victims of acid attacks are overwhelmingly women and children; however men and the elderly are also attacked. Many bystanders are accidently burned as well. The high number of accidental burn is due to the fact that acid is thrown at the individuals, and since it’s a liquid substance, it tends to bounce off the intended victim and moves out of the way and hits someone else.
Rape is coercive sexual assault without the consent of the victim, and it leads to severe traumatization of the victim, often resulting in psychological disorders for the victim. An acid attack, as stated earlier, has effects, both physiological and psychological, on the victim. In fact, it affects the physical being of the victim more than rape does, as it usually results in erosion of the skin, dysfunction of vital organs and loss of life or limb. Also, acid attacks scar the victim’s psyche more violently than rape. While the effects of rape can be hidden by the victim from the world at large, the same cannot be said for acid attacks. Acid leaves blemishes which can neither be removed nor concealed, and the victim thus has to carry the social stigma for the rest of her days.
Consequences of Victimization
Victimization is a highly complex process encompassing a number of possible elements. The first element (often referred to as ‘primary victimization’) comprises whatever interaction may have taken place between offender and ‘victim’ during the commission of the offence, plus any after effects arising from this interaction or from the offence itself. The second element encompasses ‘the victim’s’ reaction to the offence, including any change in self-perception that may result from it, plus any formal response that s/he may choose to make to it. The third element consists of any further interactions that may take place between ‘the victim’ and others, including the various criminal justice agencies with whom s/he may come into contact as a result of this response. Where this interaction has a further negative impact on the victim, it is often referred to as ‘secondary victimization’.
Primary Victimization: Primary victimization refers to the direct impact that a crime has on the Victim. Of course, at an individual level, the impact may vary with the nature of the crime, from physical injury to loss of earnings as a result of the required involvement in the criminal justice process.
a) Physical Consequences:
Acid Attack: The physical disfigurement from acid burning is important. Victims usually do not die, the aim of nearly all acid attacks is not to kill but to injure or disfigure. Physically, acid has devastating effect on the human body, it causes skin tissue to melt exposing bones and, in severe cases, even dissolve bones. The severity of injury results from variety of factors, including the type of acid used and for how long it touched the skin. Victims sustain variety of injuries, including melting of nose, closing of nostrils, shriveling of the ears, and burning goof the eyelids and lips. Many victims are left blind. Because it is thrown at the face, the victim’s hands usually sustain damage because they try to block the substance flying at their face. The most salient danger for the victim is that inhaling the acid vapors will result in breathing problem or even complete failure. Survivors wearing the scars of their attack are further violated through ostracism and shame within their community and vulnerable to further violent attacks.
Rape: in forced or violent rapes, the victim may suffer severe injuries over her body. Recovery from the deep-seated problem involves long-term treatment involving lacs of rupees. Unwanted pregnancies and sexually transmitted diseases such as HIV/AIDS are also not unknown of. In fact, in a tradition bound conservative society, as in India, the consequences of rape range much wider than mere physical and psychological trauma at the individual level.
b) Psychological consequences:
in the case of acid attacks, the psychological scars may be less visible but they are just as traumatic and long- lasting as the physical ailments. It has been reported that survivors suffer from depression, insomnia, nightmares, and fear that the offender might harm them again. Many Survivors deal with severe isolation as they ostracized from their communities and families.
c) Socio and economic consequences: From the social standpoint, survivors often become forlorn and ashamed because the community may stare at them and blame them for what happened. They may not want to go outside their homes because of the stigma attached to these attacks, leaving them helpless and dependent on others. Many lose the ability to earn a living and the independence they once had, which causes additional struggle. Due to these adverse psychological effects such as depression and low self-esteem lead to many people decide not to work.
Due to disfigurement, disability, and social stigma associated with acid injuries, many survivors have lost employment. The financial consequences are even more overwhelming when the survivor is the wage earner. Once the acid attack happens, survivors usually have to spend weeks or months in hospital, until their wound begin to heal and the risk of infection is gone. Survivors often have to pay for their medical treatment and need multiple surgical operations and treatments lasting for years to come. They quality of the treatment they receive depend may depend upon how much money they have and where they are located. In sum survivors of acid attack face a long road of recovery, not just from the physical damage but from the resulting societal response to their disfigurement.
Secondary Victimization
Secondary victimization occurs due to the failure of those who are entrusted with the duty of taking care of the crime victim. The police officer, the prosecutor, court personnel, the doctor, the near relatives and neighbours often fail to respond sympathetically to a crime victim.
Two finger test!
Many doctors still perform the archaic ‘two-finger-test’, which involves the insertion of two fingers into the vaginal opening to determine the presence of absence of hymen, the laxity of vagina or anus by extension, the survivor’s virginity or habituation to sex, this is, without doubt, an intrusive procedure of which the supreme court has been critical and that has been proved unscientific and even more crucially, in determining whether rape or sexual assault has occurred.
Inserting fingers into the vaginal or anal orifice of an adult or child survivor of sexual violence can cause additional trauma, as it not only mimics penile penetration but can also be painful. In their June 2010 letter to the Indian government, Indian women’s rights activists drew the government’s attention ‘to the existence of tests like the two-finger test, which further aggravate women’s experience of assault.
India is party to several international treaties that obligate its government to ensure that all forensic procedures and criminal justice processes respect survivors’ physical and mental integrity and dignity. Guidelines issued by the World Health Organization (WHO) for examining survivors of sexual violence state that forensic examinations must be minimally invasive and that even a purely clinical procedure such as a bimanual examination is rarely medically necessary after sexual assault. In the case of prepubescent girls and boys who are victims of sexual abuse, the WHO guidelines say that ‘most examinations’ should be ‘noninvasive and should not cause pain,’ and that ‘speculums or anoscopes and digital or bimanual examinations do not need to be used in child sexual abuse examinations unless medically indicated.’ The guidelines further caution: ‘consider a digital rectal examination only if medically indicated, as the invasive examination may mimic the abuse.’ All of this demoralizes the survivor, lead to enormous delays, re-victimizes the survivor and also impact the conviction rates.
Within India, the Mumbai-based nongovernmental organization Centre for Enquiry Into Health and Allied Themes (CEHAT) has developed a detailed forensic examination protocol accompanied by an instruction manual, currently used in two Mumbai hospitals, that explicitly states that the two-finger test should not be conducted. The document clearly indicates to doctors what information is relevant for such an examination, outlines situations in which it is appropriate to note injuries to the hymen, and describes how these must be recorded’directives that show doctors how to conduct examinations in a manner that respects a survivor’s privacy and dignity. The instruction manual also explains that the two-finger test is no longer admissible in court, and that doctors should not use the test to assert findings or render medico-legal opinions. In Delhi, the government is also slowly beginning to pay greater attention to the health needs of and forensic examination protocols for rape survivors: 2009 High Court guidelines, for example, outline what different actors, including police officers, prosecutors, and doctors, should do to assist survivors of sexual violence. The High Court has also formed a committee headed by Justice Gita Mittal to oversee the implementation of all guidelines related to sexual violence against adults and children.
Victims are often interrogated without taking into consideration the plight of the victim caused by repeated interrogation. Rape and abduction victims are often despised and socially ostracized as a result of which some such victims commit suicide. The investigation officer does not give sufficient time to hear or to respond to the needs of the victim. Doctors treat victims mechanically. The psychological aspect of the injury is overlooked. The victim’s plight reaches a climax when courts fail to do justice to the victim, when the victim’s plea is not heard or overlooked. To minimize the plight of victims, investigation officers and others need to be sympathetic and friendly to victims. They should not be looked down upon or ostracized.
Another area that requires a significant amount of focused attention is the medical sector. Due to a lack of medical training pertaining specifically to acid violence, many doctors are unable to identify acid bums, and they subsequently fail to correctly register the necessary information on medical certificates The information in medical certificates is unclear and lacking vital information which can raise problems, such as evidentiary issues, during legal proceedings. Doctors are key actors in the fight against acid violence, however, as of yet, many doctors are reluctant to come to court and provide testimony.
The police play a pivotal role in victim assistance as it is the first agency victims come into contact with after being victimized by a crime. The attitude of the victims towards the entire CJS will be based on the kind of treatment the victims get from the police whom they first encounter. Unfortunately, in India the police are still not oriented to meet the expectations of the victims as per the UN Handbook on Justice for Victims. The police at the field level who are in actual contact with the victims in day’to-day crime situations are blissfully ignorant of the international developments in the field of Victimology and the better treatment victims deserve from the police. The treatment of victims by the police also forms the basis for a negative perception of the CJS, more particularly, the police, because the ‘treatment with compassion and respect for their dignity’, emphasized by the UN Declaration, is missing completely.
State Compensation Schemes
According to Black’s Law Dictionary, restitution/reparation is an ‘Act of restoring; restoring to its rightful owner; the act of making good or giving equivalent for any loss, damage or injury; and indemnification’. The concept of reparative justice is based on the premise that a crime represents a debt owed not only to the state, but to the victim, the victim’s family and to the community as a whole.
In 1951, English Activist Margaret Fry represented the argument that the state should provide some degree of compensation to the personal injuries suffered by victims as a result of violent crime. Victim compensation is one of the pillars of victim assistance as it serves as the primary means of financial aid.
a) Compensation As A Matter Of Right:
Payment of compensation should be a matter of right. It should not be linked with the status of the offender. Whether he is convicted or acquitted, whether he is in a position to pay or not should be done away with i.e. payment of compensation should be independent of all such restrictions. The goal of victim compensation and restitution is to acknowledge and validate the losses of victims through a system of compensation by the State or by the offender.
b) Treatment Of Victims With Respect And Recognition
When a victim reports an offence to the police or any other agency like Non Governmental Organization etc, it is to be ascertained whether the report of the victim is valid or not and if it is valid, to identify the accused and bring him to justice. The process can be a long and difficult one and from the legal point of view the victim is only an alleged victim. This should not prevent all those who come into contact with victims from treating them with the respect and recognition that all persons deserve.