judgement
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This article is written by Arunima who is pursuing a Certificate Course in Criminal Litigation from Lawsikho.

Introduction  

Indian criminal justice system derived from the British system. The worldwide criminal justice system is planned to be at the center-level of the state. The Indian criminal justice system is no exception to this practice. Law and order is considered the primary duty of the state. Every citizen in a welfare state expects his basic human rights. Whenever these rights are violated then human rights violation goes to the core of social work and causes law and order problem. Whenever a citizen is harmed, injured or even killed as a result of a crime, he is often called a “victim”. However, there is an inbuilt mechanism to initiate criminal proceedings against such a criminal, although such victims may seek justice by setting the criminal justice system in motion by themselves, either by their complaint or by informing the police.

The impact of victimization on crime-affected individuals in recent decades has attracted the attention of criminal law courts around the world and they were convinced that victims need to be treated with compassion and that their dignity and fundamental rights are protected and preserved. In this article, On the contest of victimology we are discussing only two kinds of crime i.e Intimate Partner Violence and Sexual Violence/Gender based Violence.

The criminal justice system of Indian is ruled by following laws:

  • The Constitution of India 
  • The Indian Penal Code(‘IPC’)
  • The Code of Criminal Procedure of India(‘CrPC’)  
  • The Indian Evidence Act
  • Corporate crime
  • White Collar Crime

Criminal Justice System In India

The main study of the criminal justice system so far includes criminals, their human rights, arrest, reformation, rehabilitation and convictions. Criminologists and penologists are also mainly concerned with them. Victims of crimes have paid very little attention to them. The increasing trend of crime and violence in society cannot be explained only by concern for criminals. As long as the victims, who are the keystone of the criminal justice system, are not given their due, and are compensated and rehabilitated, society cannot live at peace with itself. It calls for a conversion, as has happened in some countries of the world, in enforcement, sentiment and letters, of existing provisions of law to compensate crimes of victims. It calls some amendments to existing provisions of laws and social engineering.

The “criminal justice delivery system” in India that stems from the Anglo-Saxon system is essentially related to the offender, his activities, his rights, and his reform needs. The purpose of the criminal justice system is, at present, limited to the simple object of ascertaining the guilt or innocence of the accused. Unfortunately, importance not given to rights of the victims of crime. It is necessary to introspect to find out whether the India criminal justice system had so far been efficacious in delivering justice to all stakeholders.

The main components of the criminal justice delivery system are crime, interrogation, prosecution, defense, trial, sentencing, corrections, probation, parole and the like and investigation.

Predominantly, the criminal justice system is comprised by the following procedures:

  1. Investigation;
  2. Prosecution;
  3. Trial.

Victims & Victimology

Within the Indian legal framework, the term victim is defined under Section 2(wa) of the CrPC, 1973 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 includes his or her guardian or legal heir.”

Andrew Karmen defined victimology as:

“relations between victims and perpetrators, relations between victims and the criminal justice system, police and courts, and corrections to officers, and relations between victims and other social groups and institutions, such as the scientific study of media, business, and social movements. “

From this definition, we can see that victimology encompasses the study of 

  1. Victimization; 
  2. Victim-Offender relationships; 
  3. Victim-Criminal Justice System relationships; 
  4. Victims and the Media; 
  5. Victims and the Costs of Crime and 
  6. Victims and Social movements. 

Various Provisions of Indian Legal System

  1. Indian Constitution: In the Indian Constitution of Part III which includes protection of fundamental rights, including the right to life, which is the right to live life with dignity and free from violence.
  2. The Dowry Prohibition Act of 1961 and (Amendment) Act in 1984 and 1986
  3. In Indian Penal Code Section 498A of the Indian Penal Code (1983).In this provision, the husband (or his relatives) can face up to 3 years in jail and fine.
  4. In Indian Penal Code ,1986, was added Section 304B. It holds a husband and his  in-laws responsible for death under reasonable suspicious circumstances within 7 years of marriage.
  5. In 2005, the Protection of Women from Domestic Violence Act passed by Parliament. It allows women to take prohibitory and protective orders. It also introduces criminal provisions for imprisonment and fines, which apply when A criminal violates a civil order. It covers all women in cruel relationships, regardless of the offender’s relationship.
  6. Other act are as follows:
  • Amendments to the Indian Penal Code, 1862 (1986),
  • Indecent Representation of Women (Prohibition) Act (1986),
  • Child Labour (Prohibition and Regulation) Act (1986),
  • The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act (1994),
  • Prohibition of Child Marriage Act(2006) 
  • Information and Technology Act (2008), – 
  • The Protection of Children from Sexual Offences Act (2012), 
  • Criminal Law (Amendment) Act (2013), 
  • Sexual Harassment of Women at Workplace (Prevention Prohibition and 5 Redressal) Act (2013),
  • Child Labour (Prohibition and Regulation) Amendment Act (2016), 
  • Decriminalization of Gay Sex (Section 377-2018),
  • Criminal Law (Amendment) Act (Death penalty for raping a minor- 2018).

The different categories of a crime which affect the victim in the different scenario 

Intimate partner violence

Intimate partner violence (IPV) is defined as any manner within an intimate relationship (live-in, married and, unmarried,) that causes sexual harm, psychological, or physical harm to those in that relationship. This definition includes physical, sexual and psychological assault / abuse or controlling any type of behavior. IPV is different from domestic violence. Domestic violence is defined as the sexual, physical and emotional abuse of a family member. It usually includes all types of family violence such as marital rape, elder and child abuse; However, IPV is restricts to acts of antagonism between intimate partners. Women are more likely to be injured in cases of IPV, male-to-female partner violence has been studied in more detail, although both female-to-male and male-to-female partner violence exist; and the rates of female-to-male partner violence in the general household population are higher than similar or male-to-female partner violence. About 50% of IPVs are bidirectional, and the rest are divided between male-to-female and female-to-male only.

Factors That Extend Intimate Partner Violence

(A) Cultural: Historical and Religious traditions in the past have specifically approved the pursuit and beating of wives under the notion of women’s rights and ownership. This, in turn, vindicates control over women’s sexuality. In various societies, a woman’s sexuality is associated with family honor. Adverse childhood experiences, especially witnessing domestic violence and experiencing sexual and physical abuse, are identified as factors that endanger children. Excess consumption of alcohol and other drugs is also known as a consistent causative phenomenon of Intimate Partner Violence.

(B) Economic: The link between savagery and lack of financial resources and dependence is very clear. Threats of risk and violence prevent women from seeking jobs, and due to lack of financial freedom, they are trapped in an inhuman relationship.

(C) Lawful: Law implementation agencies often reinforce batsmen’s efforts to control and victimize victims. In many cases, despite the enforcement of the law, perpetrators of IPV are dealt with more generously than violators of the same violence with strangers.

(D) Ecclesiastical: There is a wrong perception of the family being private and beyond the control of the state. This problem is from undermining women in power, politics, media and the legal system.

(E) The role of alcohol: There is a strongly prevalent belief in society that alcohol may encourage violent behavior after drinking and alcohol use is increasing as an excuse for violent behavior. Furthermore, it may be that the combination of Intimate Partner Violence and alcohol is more coinciding and an expression of masculinity on behalf of men. Proximal factors, such as the pharmaco-cognitive effects of alcohol, environmental, and social cues, may trigger state anger IPV.

Elements Of Intimate Partner Violence

  1. Health consequences –It lead to far-reaching psychological and physical outcomes, with some fatal consequences. In IPV injuries can range from injuries and fractures to long term disabilities, such as total or partial loss of hearing or vision, and burns may effect from disability. Violence during pregnancy threatens the health of both the unborn child and the mother. Frequent sexual assaults and brutal rapes can lead to unwanted early pregnancies, and dangerous complications that lead to illegal abortions. Girls who have been sexually assaulted or sexually abused in childhood are more likely to engage such as early sexual intercourse and are at greater risk of unexpected and prior pregnancies. Violent woman conditions are capable of using contraception or negotiating safe sex, and therefore, there is a  risk increases of contracting sexually transmitted diseases and AIDS/HIV. In addition, there is a greater incidence of stress and stress related illnesses in victims.
  2. Effect on children: Minors/Children who have witnessed cruelty or were themselves victims suffer adverse consequences. They may find it difficult to form trustworthy bonds, learn violence as a valid way to resolve violence, and accept violence more easily than others.
  3. Socioeconomic cost of violence: This includes both direct and indirect medical, legal and social systems. Prevention, detection and management of IPV.

Sexual violence 

Sexual violence by women and girls is a major problem in India. It is already a challenge for survivors to get justice in the Indian legal system, and people from the country’s marginal communities face even greater hurdles.

Sexual violence is defined as:

Any sexual act, any sexual act, attempt to obtain unwanted sexual comments or advances, or acts for traffic, or otherwise directed, by a person in any setting, regardless of their relationship to the victim Without, using force by any person on any person. Not limited to home and work”.

Forms and contexts of sexual violence

A wide range of sexually violent acts can occur in different situations and settings. These include, for example:

    • Rape within marriage or dating relationships;
    • Rape by strangers;
    • systematic rape during armed conflict;
    • Unwanted sexual advances or sexual harassment, including soliciting sex in exchange for favors;
    • Sexual abuse of mentally or physically disabled people;
    • Sexual abuse of children;
    • Forced marriage or cohabitation including the marriage of children;
    • denial of the right to use contraception or to adopt other measures to protect against sexually transmitted diseases;
    • Forcible abortion;
    • Violent acts against sexual integrity of Women, including female genital mutilation And mandatory oversight for virginity;
    • forced prostitution and trafficking of people For the purpose of sexual abuse.

Types of Sexual Violence

  • Sexual Assault– Sexual assault can take many different forms and can be defined in different ways, but one thing is the same: it is not the victim’s fault.
  • Child sexual abuse– When an offender intentionally harasses a minor with physical, psychological, sexual or neglect acts, the offense is known as child abuse.
  • Sexual abuse of men and boys-Men and boys who have been sexually abused or abused may face some additional challenges due to social attitudes and stereotypes about men and masculinity.
  • Intimate partner sexual violence– A criminal can have any relationship with the victim, and includes the role of an intimate partner.
  • Incest-Regardless of how the law defines incest, unwanted sexual contact with a family member can have a lasting effect on the survivor.
  • Drug-facilitated sexual assault– You may have heard the term “date rape drugs” for substances that can assist a criminal in drug abuse sexual assault.
  • Sexual harassment- You need to be able to feel comfortable in your work or place of learning. If you are being sexually harassed, you can report it to your job, school or local law enforcement officials.
  • Stalking – Learn more about ways to stalking to help you notice them before proceeding – and take steps to protect yourself.
  • Adult Survivors of Child Sexual Abuse – Many perpetrators of sexual abuse are believed or responsible for child care, such as family members, teachers, clergy members, or coaches.
  • Using Technology to Hurt Others – Some people use technology, such as digital photos, videos, apps, and social media, to engage in harassment, unwanted, or non-consensual sexual relationships.
  • Sexual Abuse by Medical Professionals – When you go to a doctor, dentist, hospital or physical therapist, or see other medical professionals, you trust them to care for your health.
  • Sexual abuse with the help of professionals – Sexual abuse by a supportive professional is a serious violation of your trust and, in many cases, the law.
  • Multiple-Perpetrator Sexual Assault – Multiple-peripersonal sexual assault, sometimes referred to as gang rape, occurs when two or more offenders sexually assault the same victim.
  • Elder Abuse – As the number of older adults in the US is increasing, it will become all too important to be aware of signs of elder abuse warning.
  • Sexual Abuse of People with Disabilities – Consent is important when a person engages in sexual activity, but it also plays a larger and more complex role when someone has a disability.
  • Prisoner Rape – If you are an inmate, a former prisoner, or an inmate who has survived sexual assault while in prison, there are resources available to you.
  • Military Sexual Trauma – Military sexual trauma, or MST, is a term used by the Department of Veterans Affairs to describe the effects of sexual violence experienced by a military service member.
  • The legal role of consent – The legal definitions of terms such as rape, sexual harassment, and sexual abuse vary from state to state. Consent often plays an important role in determining whether a law is legally considered a crime.

Sexual violence against men and boys

Sexual violence against men and boys is a significant problem. With the exception of childhood sexual abuse, however, it is one that has been largely neglected in research. Other forms of sexual rape directed against men and boys include homes, workplaces, schools, on the streets, during military and war, as well as in prisons and police custody. 

In prisons, forcible sex can be performed between prisoners to establish a hierarchy of respect and discipline. Sexual violence by prison officers, police and soldiers is also widely reported in many countries. Such violence can take the form of prisoners who are forced to have sex with others as “entertainment”, or provide sex for officers or officers in command. Elsewhere, men who have sex with other men may be “punished” for their behavior by rape, social norms are believed to change.

Consequences of Male sexual violence

As happens with female victims of sexual assault, research suggests that male victims are likely to suffer from a range of psychological consequences, both after and long after the attack. These include guilt, anger, anxiety, depression, traumatic stress disorder, sexual dysfunction, somatic complaints, sleep disturbances, withdrawal from relationships, and suicide attempts. In addition to these responses, a study of adolescent males also found an association between victim rape and substance abuse, violent behavior, theft from school, and absenteeism.

Factors increasing men’s risk of committing rape 

            Individual factors 

        Relationship factors  

    Community factors

        Societal factors

  • Alcohol and drug use 
  • Associate with sexually aggressive and delinquent peers
  • Poverty, mediated through forms of crisis of male identity
  • Societal norms supportive of sexual violence
  • Coercive sexual fantasies and other attitudes and beliefs supportive of sexual violence .
  • Family environment characterized by physical violence and few resources
  • …. Lack of employment opportunities
  • Societal norms supportive of male superiority and sexual entitlement
  • Impulsive and antisocial tendencies
  • .. Strongly patriarchal relationship or family environment
  • Lack of institutional support from police and judicial system
  • Weak laws and policies related to sexual violence
  • Preference for impersonal sex .
  • Emotionally unsupportive family environment
  • General tolerance of sexual assault within the community
  • High levels of crime and other forms of violence
  • Hostility towards women
  • Family honour considered more important than the health and safety of the victim
  • Weak community sanctions against perpetrators of sexual violence
  • Weak laws and policies related to gender equality
  • History of sexual abuse as a child .
     
  • .. Witnessed family violence as a child .
     
       

What can be done to prevent sexual violence?

Individual approaches

  • Psychological care and support- Support group initiatives, Counseling and therapy have been found to be supportive succeeding sexual assaults, specially where there may be muddle factors related to the violence itself or the process of recuperation
  • Life-skills and other educational programmes- In the last few years, various  programmes for sexual and reproductive health promotion, especially those encouraging HIV prevention, have begun to initiate gender issues and to mark the issue of physical and sexual violence against women
  • Programmes for perpetrators- Some programmes aiming perpetrators of sexual violence have normally been targeted at men convicted of assault. They are found mostly in modern countries and have only newly begun to be assessed. One method of reaching this is for programmes that aimed male perpetrators of sexual violence to unite with campaigns against sexual violence as well as with helping services for victims.

Developmental approaches

  • Health care responses – Medico-legal services- In various countries, where sexual violence is reported the health section has the responsibility to collect legal and medical evidence to verify the accounts of the victims or to support in recognize the perpetrator. Research suggests that medico-legal documentation can raise the chance of a perpetrator being charged, arrested or convicted 
  • Training for health care professionals- Issues regarding sexual violence need to be addressed in the andragogy of all health service staff, including counselors and psychiatrists, in fundamental training as well as in specialized postgraduate courses. Such training should, in the initial place, give health care workers greater awareness and knowledge of sexual violence and make them more able to reveal and handle cases of misuse in a sensitive but efficacious way
  • Prophylaxis for HIV infection- The probability of pervasiveness of HIV during rape is a significant reason for concern, specially in countries with a high pervasiveness of HIV infection. The use of antiretroviral drugs ensuing exposure to HIV is known in limited contexts to be rational effectual.
  • Centers providing comprehensive care to victims of sexual assault- As of the dearth of doctors in numerous countries, especially trained nurses have been used in various positions to aid victims of sexual assault. These centers coordinate or provide a extensive of services, including counseling, collecting forensic evidence of assault, community consultation and education ,  legal support, emergency medical care and medical follow-up.

Community-based efforts

  • Prevention campaigns – Endeavour to change public viewpoint towards sexual violence using the media have included advertising on hoardings (‘‘billboards’’) on radio and television and in public transport. Television has been used effectively in many countries.
  • Community activism by men- A foremost factor in preventing physical and sexual violence against women is a collaborative commence by men. Men’s groups against rape and domestic violence. The basic initial point for this type of commencement is that men as independent should take actions to lessen their use of violence. Particular activities include education campaigns and rallies, group discussions, workshops in schools, prisons, workplaces and work with violent men. Measures are recurrently conducted in cooperate with women’s organizations that are involved providing services to abused women and in preventing violence.
  • School-based programmes- Manoeuvre in schools is important for turn down sexual and another form of violence. In few years, though, many countries have introduced laws interdicting sexual relations between pupils and teachers. Such actions are vital in supporting  eliminating sexual harassment in schools. Simultaneously, a extensive of actions is also needed, including changes to recruitment and reforms of curricula and teacher training, so as to transform gender relations in schools.

Legal and policy responses 

  • Reporting and handling cases of sexual violence- Various countries have a system to animate people to file incidents of sexual violence to the police stations and to upgrade the sensitivity and speed of the processing of cases by the courts. Difficulty are sometimes created by the reluctance of medical experts to attend court. The cause for this is often that the court schedules are uncertain, with cases frequently  postponed at short period notice and long  time period waits for witnesses who are to give short testimonies
  • Legal reform- Legal intercessions that have been embraced in various places have included:  
  1. expanding the definition of rape;
  2. improving the admissibility of evidence and rules on sentencing;
  3. Eliminating the prerequisite for victims’ accounts to be verified.
  • International treaties- International treaties are vital as they set norms for national legislation and provide a move for regional groups to campaign for legal reforms. Amidst the pertinent treaties that affect on sexual violence and its precautionary measure include: 
  1. the Convention on the Elimination of All Forms of Discrimination Against Women (1979)
  2. the Convention on the Rights of the Child (1989) and its Optional Protocol on the Sale of   Children
  3. Child Prostitution and Child Pornography (2000)
  4. the Convention Against Transnational Organized Crime (2000) and its supplemental Protocol to Prevent
  5. Suppress and Punish Trafficking in Persons, Especially Women and Children (2000);
  6. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

An enumerate of another international agreement set standard and limits of deportment, including deportment in conflicts, that required provisions in national legislation

Estimates of sexual violence

Victims at the intersection

Victims have been discussed as a relatively equitable group with similar needs and experiences of the criminal justice process. Sometimes, it is increasingly recognized that different victim groups may have very different experiences of the criminal justice system. Contrasting theorists propose that people’s life experiences and social responses to them – based on race, ethnicity, gender, sexuality, nationality, and socioeconomic class, are built on multiple, intersectional and socially constructed identities. This perspective, which emerged from critical social theory, argues that some social groups are less socially privileged within society because of their subordinate social conditions. As a result, their lived experiences (including interactions with the criminal justice system) may differ from the experiences of other more privileged groups. Because of this, intersection theorists argue that dominant modes of thought (which have traditionally emerged from a white, male frame of reference) and one-size-fits-all policies cannot accommodate the experiences, or needs, of marginalized victims groups. Accordingly, they call for closer attention to be paid to the lived experiences of marginalized groups within criminological thinking and policymaking.

For example, 

Victims may be reluctant to report from the police fearing that they would elicit a homophobic response.

Relatedly, there is increasing concern with the needs of ‘vulnerable’ victims. Vulnerability is usually defined according to particular categories of people, e.g. children, the elderly, people with an intellectual disability, and so on. 

Four studies were identified that explored the criminal justice experiences of

    1. migrants and ethnic minorities;
    2. people with mental health issues or disabilities; 
    3. victims of hate crime; and
    4. children and young people.

Case Laws:

Sukhdev Singh vs . State of Punjab (1982 SCC (Cr) 467),   Balraj v. State of U. P. (1994 SCC (Cr) 823),  Giani Ram v. State ofHaryana (AIR 1995 SC 2452),  Baldev Singh vs. State of Punjab (AIR 1996 SC 372). 

Despite the absence of any specific legislation to provide justice to victims in India, the Supreme Court has played an active role and resorted to affirmative action to protect the rights of crime and victims. Since the early 1980s the Court has adopted the concept of restorative justice and raised the amount of compensation or restitution or compensation to victims, as seen in the cases.

Bodhisattwa Gautam v. Subhra Chakraborty (AIR 1996 SC 922)

The Supreme Court held that if the court trying the crime of rape has jurisdiction over the final stage of compensation, then the court also has the right to interim compensation. The court satisfied the accused prima facie and ordered him to pay Rs 1000 every month to the victim as interim compensation along with compensation arrears from the date of complaint.

Tukaram and others vs State of Maharashtra 1979SCR(1)810

Supreme Court held that every person has the right to choose his sexual partner. Here the term each person is used for both men and women. Rape and sexual assault is a global issue and is not only a crime but a serious issue of fundamental rights violations.

State of Punjab v. Ramdev Singh  Appeal (crl.)  547 of 1997

The Supreme Court said that rape is not only a crime against a man or woman but a crime against the whole society. It is a crime against basic human rights and violates the most cherished fundamental right under Article 21 of the Constitution

Rudul Sah v. State of Bihar (AIR 1983 SC 1086)

The Supreme Court asked the Bihar government to pay another amount of Rs 30,000 as compensation to Rudul Sah, who, according to the court, illegally in one case, It was of a “palliative nature”, in addition to an amount of Rs.5,000. Prolonged victim harassment

Mrs. Nalini Bhanot v. Commissioner of Police, Delhi Police (AIR 1990 SC 513)

In Saheli, a Women’s Resource Center through the court gave a sum of Rs 75,000 as state compensation to the victim’s mother, stating that the victim died due to beating by the police.

Conclusion 

The review focuses first on best practices with victims in general, with an exploration of victims’ experiences at each stage of criminal justice Procedure, namely, initial police contact, investigation, prosecution, trial, conviction and parole. Next, best practices for victims with specialist needs and experiences were reviewed with particular focus on victims of various crime types, namely victims of intimate partner violence and sexual violence and specific victim groups, including migrant and ethnic minority groups are, people with mental health issues or disabilities, people who experience hate crime, and children and young people. The conclusion draws various strands to provide an overview of best practices to support victims through the criminal justice system

References

https://www.globalcitizen.org/en/content/sexual-violence-india-2019/

https://theconversation.com/india-has-a-sexual-assault-problem-that-only-women-can-fix-101366

http://www.justice.ie/en/JELR/Pages/PR19000257

https://www.drugsandalcohol.ie/31407/

https://www.gov.ie/en/publication/6e6d52-exploring-victims-interactions-with-the-criminal-justice-system-a-li/


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