Introduction
A “victim” is defined as someone who has experienced suffering, physical or mental injury, emotional distress, monetary disruption, or the violation of fundamental rights as a result of acts or omissions that breach criminal laws in existence within a State, irrespective of whether the perpetrator has been traced, detained, tried, or condemned, and devoid of any family ties between the perpetrator and the “victim”.[1] It would be more than reasonable to progress forward in a positive direction rather than stay still or, worse, regress in the case of victimology and the rights of victims, both of which are burgeoning disciplines of jurisprudence. The legislature and the judiciary have granted the victims of crime a perspective, and if it isn’t already being acknowledged, it needs to be amplified so that it is plainly understood.
Victimization of the victim of a crime transpires simultaneously as well during the trial. The rights of the accused and those of the victim must always be reconciled. The rights of victims have indeed been addressed by the legislature and the judiciary. Nevertheless, there is still much to be accomplished. Whatever happens next in a trial is typically additional victimisation caused by repeated court appearances in a hostile or semi-hostile setting. In several ways today, the rights of an alleged perpetrator substantially surpass those of the victim. The victim has received generous reparation from the courts as consolation. But that is insufficient. The legal system has done and is still doing its utmost to help crime victims.
Founding Principles of Justice
The foundation of the criminal trial system was the state’s exercise of authority and the increasing alienation of victims, who were perceived to be driven by a desire for vengeance. But over the past thirty years, there’s been a considerable amount of effort to reconsider the position of crime victims. By putting in place procedural, monetary, and psychological relief programmes, a variety of initiatives have attempted to improve how victims are dealt.[2] Others have focused more intensively on the attribute of victims in criminal prosecutions. New channels have been opened up for victims to speak up during proceedings, take part in criminal prosecutions, and be represented. In order to combat arbitrariness and ensure that everybody is treated in accordance with the rule, rationality is regarded as a critical tool.
Thereby also, several of the Supreme Court justices’ arguments against victim impact proclamations and in pursuit of the jury are being advised to disregard “sentiment, sympathy, or passion”[3] when making a decision, regardless of whether these emotions were directed toward the appellant or the alleged perpetrator, were based on the Rule of Law model. Some jurists have suggested rethinking the significance of feelings, sympathy, and narrative in the penal system in juxtaposition to the demands of this model. These professionals have created a different, “broadening” definition of neutrality.[4] These academics contend that the Rule of Law approach is fundamentally flawed. Whether a jurist likes it or not, sentiments always have an impact on their work. Therefore, it is preferable to incorporate the emotional aspect into the decision-making of criminal proceedings. Nevertheless, a judge can perceive the feelings of multiple individuals and the whole intricacy of their experiences without even being emotionally touched owing to the power of imagination. Accordingly, his/her decision could be “emotionally sympathetic and, in the truest sense of the word, neutral.”[5]
Victimology
Jurists have explored the prerequisites for establishing and upholding equity between both sides engaged in criminal prosecution in light of the increasing influence of victims in the penal system. In the dichotomous paradigm of defence and prosecution, judges have discussed equity. According to a few scholars, the increased representation of victims in the process is a necessary component of equitable resource allocation among petitioners and the alleged perpetrator. From their point of view, there has always been a disparity, whether it is in terms of the rights accorded to each party, their ability to act, or the attention they have gotten. It was judged troublesome because offenders were “active” while victims were compelled to remain “passive.”[6] Other jurists defended the required disparity of the responsibilities in the system of criminal justice in opposition to the idea of a new resource allocation between victims and the accused. They believe that victims cannot be considered the same as offenders and should not, therefore, be given the chance to give testimony. In actuality, the accused’ fundamental rights are primarily created to protect them from potential abuses in the government’s use of its authority.
Victims cannot legitimately ask for “equal” procedural safeguards because they are not in this peril. The jurisprudential discourse has meanwhile advocated reassessing the role of victims when it comes to considering the balance between prosecution and victims. Particularly, the administration has come under scrutiny for robbing victims of their right to self-defence and legal recourse. In parallel to these various approaches to examining equity amongst parties, few jurists have sought to see all three entities’ prosecution, the defence, and the victims—symmetrically, albeit this has been done less frequently. In this case, the courtroom is no longer regarded as the scene of a conflict between two adversaries but as a place that encourages the application of an “interactional” discourse. As a result of this phenomenon, jurists advocate greater rights for victims, but for distinct causes. Each side in a trial is viewed as engaging in an overall endeavour to elucidate the legal truth, bringing their own perspectives to the process.
The impact of criminal proceedings on victims’ “capacity to assume accountability” and “capacity to experience in charge” in the midst of difficulty has been studied by certain jurists from a critical perspective. According to jurists who take this stance, the increasing representation of victims in the judicial process is superficial in comparison to what is needed for actual empowerment.[7] Such specialists are particularly concerned about the consequences of these people’s participation as victims in the penal system, even while they affirm the significance for people choosing to be “engaged” when faced with the misfortune that befalls them. This level of commitment is viewed as putting more of an emphasis on history than on the future. The prosecution’s fundamental rationale would compel these people to put the blame upon another, to downplay their own capacity to act at the time of the incident, and to disregard their duties in the future.
Concluding Remarks
There is still disagreement on the best efficient and fair method of reintegrating the victim into the trial proceeding, despite the fact that it has long been agreed that crime victims have been unfairly isolated from it. Although much has been accomplished in the pursuit of this objective, it looks like we have come to a fork in the road. The question now is whether we are happy to keep the status of victims’ rights at this ideological level in the hopes that symbolic acknowledgement would eventually result in a changed prosecutorial mentality in which victims’ interests and requirements are particularly taken care of by state authorities. The rights of victims are too significant to be reduced to merely speculative declarations of concept, and now is the time to turn symbolic acknowledgement into a useful and significant legislative reform agenda. Victims’ rights are frequently linked to a conservative and anti-crime stance.[8] Nevertheless, this deterioration is completely preventable and is neither inherent nor inexorable. Given how the public now feels about the legal system, politicians should seriously explore making structural changes that will give crime victims greater involvement in the process.[9] The credibility dilemma that now afflicts criminal justice can be fought by giving the sentencing procedure a human face.
Author(s) Name: Anshika Srivastava (Rajiv Gandhi National University of Law)
References:
[1]B Indulia, ‘Victimology revisited by Lakhimpur Kheri’ (SCC Blog, 2022) <https://www.scconline.com/blog/post/2022/08/29/victimology-revisited-by-lakhimpur-kheri/> accessed 23 February 2023
[2]‘The Role of the Victim in the Criminal Process: A Literature Review – 1989 to 1999’ (Justice GC) <https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr00_vic20/p2.html> accessed 23 February 2023
[3] ‘Victims Still: The Political Manipulation of Crime Victims’ (1993) 31 Choice Reviews Online 31 <http://dx.doi.org/10.5860/choice.31-1817 > accessed 23 February 2023
[4] ‘Contacting Victims of Life Sentence Crime’ (1994) 41 Probation Journal 212 <http://dx.doi.org/10.1177/026455059404100406> accessed 23 February 2023
[5] M Joutsen, ‘Report on the Ancillary Meeting on the ‘Implementation of the Basic Principles Embodied in the United Nations Declaration on Victims’ Held in Connection with the Eighth United Congress, 27 August – 7 September 1990’ (1991) 2 International Review of Victimology 65 <http://dx.doi.org/10.1177/026975809100200105> accessed 23 February 2023
[6] I Melup, ‘United Nations: Victims of Crime’ (1991) 2 International Review of Victimology 29 <http://dx.doi.org/10.1177/026975809100200103> accessed 23 February 2023
[7]S Hiskey, ‘Book Review: Crime, Victims and Justice: Essays on Principles and Practice’ (2005) 12 International Review of Victimology 111 <http://dx.doi.org/10.1177/026975800501200110> accessed 23 February 2023
[8] Ten Boom A and K. F. Kuijpers, ‘Victims’ Needs as Basic Human Needs’ (2012) 18 International Review of Victimology 155 <http://dx.doi.org/10.1177/0269758011432060> accessed 23 February 2023
[9] The Role of the Victim in the Criminal Process: A Literature Review – 1989 to 1999 (n 2)
