Victims are only considered witnesses to a crime: The case is typically between the state and the accused.

Indias justice system hardly cares about what the victim wants and this must changeImage for representation.
Voices Opinion Tuesday, April 17, 2018 - 16:03

Two recent incidents have taken centre stage in all discussion this week – rape and murder of an eight-year-old in Kathua, Jammu and Kashmir, and the rape of a teenage girl in Unnao, Uttar Pradesh. In both cases, the concerned authorities demonstrated apathy, and insensitivity till media covered these incidents leading to huge public outcry. Every time a sexual abuse crime is reported, news channels conduct debates/discussions, social media users advocate for prompt investigation and stringent punishment, sometimes people organise marches demanding justice for the victims.

But often, justice is defined from a personal frame of reference of the one demanding it. People demanding justice forget about what justice means to the victims, and the needs of the victims. Even the criminal justice system is more interested in knowing about the nature of offence, who committed the offence, stipulated punishment for the offence, nature of evidence to prove the offence...

Even the National Crime Records Bureau reports, which analyse criminal cases every year, do not have a single variable on the experience of victims with the criminal justice system. No one asks the victims if they, in their opinion, received justice.

Victims are mere witnesses

One of the primary reasons why the justice system displays disinterest in victims is because victims are considered witnesses to a crime. A criminal case is typically between the state and the accused. Any crime committed by a person is considered crime against society. Therefore, the state files the case against the offender to undo the wrong.

Nils Christie, a renowned sociologist and criminologist, explains this by calling conflict as “property of the state.” According to Christie, the state has taken monopoly over conflict and crime. Therefore, while the State is represented by a prosecutor, and the offender is represented by a lawyer, and victims often go unrepresented.

Section 301 of CrPC permits a victim to appoint a lawyer, but they have a very limited role. The lawyer can only act as per the direction of the Public Prosecutor and may submit written arguments, after evidence is closed, with the permission of the court. In other words, how much a victim's lawyer can intervene depends on the judge.

Agencies set up by the government to work with victims do not handhold the victims and their family members till the end of trial. There are very few non-profit organisations whose panelled lawyers represent children, and/or victims of sex trafficking. These NGOs are concentrated in major cities, and only a fraction of victims have access to their services.

Lack of information resulting in helplessness

When an offence is reported, victims play pivotal role at the stage of investigation. Once a victim of sexual abuse reports a crime, for the next 36 hours her life comes to a standstill. She narrates her abuse to various police officials, then she is taken to a hospital for medical examination which takes 4-5 hours (including waiting period). The following day she testifies before a magistrate (her first statement under oath).

After the roller coaster ride of reporting of offence ends, she is suddenly kept in the dark about any progress in her case until the day of her testimony.

Once the police files chargesheet, and the trial begins, the level of victim's participation is negligible. In my experience as a lawyer representing sexually abused children in court, it takes at least a year from date of FIR for the case to reach the stage of victim testimony. Victims are informed of their testimony the evening before the date of hearing, even though the date of hearing is assigned at least 2-3 months in advance. They are expected to cancel any plans they may have – jobs, schools, exams, doctor visits, family function, travel – and attend court hearing.

Until that day they are completely kept in the dark about what is happening in their case, and after that day they will continue to remain in dark. The court system is extremely inaccessible, intimidating, and humiliating for them to track the progress of their case.

Representation of needs and concerns of victims

On the day of testimony, victims are expected to narrate about the abuse in set format. In many cases of sexual abuse, there are many incidents that may have led to the occurrence of the crime. Unless these incidents fit in the narration expected by the legal system, they are deemed unnecessary and victims are encouraged not to speak about them.

A crime is reported when a person gets violated, and autonomy over their person is taken away. Yet, victims are not allowed to narrate their experience freely. The justice system monopolises over the narration of crime by jargonising the incident, thereby leaving the victim completely clueless about what is happening in the case.

The victim's experience of abuse is forced to fit into the legal definition of offences. Additionally, during testimony, the system questions victim's character, life choices, to disprove her experience of abuse. 

Furthermore, the criminal justice system does not allow victims to voice their needs and opinion. Even while sentencing, the voice of the victims are not represented.

For instance, when the victim knows the offender, and has a relationship other than that of abuser-abused, often they only expect to know why they were targeted. They want an apology, and an assurance that they will be safe in future. While there are some victims who will advocate for harsh punishment, and would not want to know anything about the case, there are many who would want other solutions to help them reach a proper closure. 

Need of the hour

While the law mandates reporting of every sexual abuse of a child, the system does not motivate victims to report about abuse. In fact, the fear of being re-victimised and re-traumatised by the system dissuades them from reporting the offence.

What we need today is a paradigm shift – to think out of the box that we have been confined in for so many years, to look beyond retributive justice system, to bring in the elements of restorative justice system.

In order to ensure proper representation of victims, legal representation of victims should be mandatory, not optional. Every victim should have a lawyer who will advocate for their best interest, and this lawyer should be someone other than prosecutor representing the state.

Secondly, along with ensuring that the offence is proved, the system should also focus on what the victim needs and wants. The criminal justice system is set in motion when a victim reports a crime, and the same victim is completely sidetracked during trial. The entire focus is on the crime and the offender, with little or no attention to the emotional needs of the victim.

While it is important to have safeguards to protect the accused from human rights violation, I am sure we can strike a balance and have a system which will protect the human rights of victims as well – one is not mutually exclusive to the other.

Priyangee is an independent Legal Research and Policy Analyst, and a lawyer who represents victims of gender based violence in courts.

Views expressed are the author’s own.

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