Merriam-Webster defines a ‘victim’ as someone who is “injured, destroyed, or sacrificed under any of various conditions” or “one that is subjected to oppression, hardship, or mistreatment.” A victim is subject to more harm with lack of recognition of the crime or the suffering he/she is going through. Having said that, there are certain factors which contribute towards victimhood and the vulnerability it might lead to. This is because of the effect society has on a victim; his surroundings play a crucial role in expanding his viewpoint about the entire incident. Jonathan Doak in ‘Victims’ Rights in Criminal Trials: Prospects for Participation’ highlighted that “Victims have traditionally been forgotten members of the criminal trials.” One of the foundational principles of the criminal justice system is that “no innocent is to be punished”. This principle has given birth to many rights protecting the accused in a criminal trial while the victims are more than often left as forgotten characters of the narrative without many rights accorded to them, and their roles are often limited to being complainants or mere witnesses in most jurisdictions across the globe. This section of the research is written on the backdrop of such forthcoming advances and challenges exploring victim representation of sexual offences in Adversarial and Inquisitorial Systems followed by analysing representation of victims in selected jurisdictions.
Role of Society in Victim Blame and Exploitation
While the rights of accused are created to shield them from hardships at every stage, the system often forgets that the victims also have to go through the same trial without much safeguarding, and relives the traumatic pain throughout the trial. This aspect of the criminal justice system is termed ‘re-victimization’ wherein the victim who has already undergone the hardships of a crime is made to re-suffer the ordeals by the stakeholders of the criminal justice system namely – the police, advocates, court, and others during the course of trial. A criminal offence is an act against a State which it monitors through the criminal justice system through its stakeholders. The major hindrance to access to justice has not been rule or policies but the successful implementation of the same. The focus of the criminal justice system has been predominantly on the accused only. Feeling estranged victims often do not report cases or suffer secondary victimisation in the trial.
The victims withstand a lack of participation during the entire cycle of trial. In most cases, it is noticed that if more emphasis and attention is given to the victims, it becomes easier for them to face their fears. What affects their outlook is that they feel they are not wholly accepted into the system, making them an outcast towards a process of their own justice. However, the accused (because of the nature of crime) becomes central to the entire judicial system. This means that the victims do not, in particular, demand decision-making power, but rather need a say and look out for updated information on the case. Joanna Shapland, in her ‘Victims, the Criminal Justice System and Compensation’ talks about the discrepancy between ‘the victim’s expectations of the system and the system’s assumptions about victim needs.’ The police are usually concerned with what social, psychological, and economic turmoil the victim endures. It tries to appear professional and formal, whereas the victim expects some restoration of faith, consoling and reaffirmation of his/her belief in the system. He/she has a ‘right to know’ or to information associated with the crime, so that he/she is not considered mere evidence. This reduction of the victim to a mere documentation or proof impacts their psyche at large. They fear becoming one in a million evidence/case files— not important enough.
The most important of the criminal procedure, that is, the victim and the accused, are the primary focus of the whole process. There remains an imbalance between the victims being significant as evidence, and the neglect of them as a person. Peter-Alexis Albrecht in ‘The Functionalization of the Victim in the Criminal Justice System’ talks about the role of victim in the constitutional law framework. He suggests that ‘the victim has become an opalescent concept of criminal justice— opalescent because the models and conceptions of the victim in criminal justice depend, to a significant degree, on the perspective of the viewer. This “neutrali[z]ation of the victim” is the consequence and condition of formalised, and therefore, limited execution of power in criminal justice.’ Therefore, a whole (sometimes latent) power-play in the society ends up wounding the victim in various forms.
Judicial View in India
As aforesaid mentioned the victim was not a party traditionally and had no legislative role in the criminal trial other than being a (primary) witness for the prosecution. In this regard, how the Indian legal system has ensured its protection is mostly through judicial precedent as observed hereunder.
The Supreme Court in the case of Ankush Shivaji Gaikwad Vs. State of Maharashtra [2013 (6) SCC 770] has held that the general rule is to award compensation to victims and in cases where the award is refused, cogent reasons must be provided by the court. The court in the case of Ratan Singh v. State of Punjab [1979 (4) SCC 719] observed that “It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislation.” Finally, in the case of Rattiram and Ors. v. State of M.P. [AIR 2012 SC 1485], the Court has supplied emphasis on the victims and their rights observing “Criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. It is the duty of the court to see that the victims’ right is protected.”
There is a need to settle the conflict that is associated with the reason for the crime. If the injustice that the victim suffers from is helped with the conscious effort of being supportive towards him/her, there is a great chance that the crime leaves less negative impact on the individual suffering. There has been a shift in the perception of victims as structural and normative alterations are made to make victims an important part of the criminal justice system.
Authors: Shruti Kirti and Prerna Deep