Sexual offences affect both – the society and the victim; Society, due to the violation of law and causing of imbalances in social equilibrium and the victim, who is the principal harmed, by a violation of autonomy and integrity over their body, property, or others depending on the violence perpetrated. In India crimes that are sexual, similarly, not just limited to the experiences of the victim but is focused on the harm caused to the society, its values and the public morality with the judiciary time and again either reinforcing it or rising above it by viewing sexual violence as undermining the concepts of human rights and gender equality. The criminal justice system focuses on punishing or reforming the offender, centred on their rights and freedoms, and not considering that of the victim. This is apparent from the lack of infrastructure for the prevention of crimes and from the punishments or lack thereof focused on the offender.
In a society that is caught up in the paradoxical vicious circle of constant victimization as well as attributing the blame to the victim, a justice system that seeks to eliminate the procedural disadvantages becomes all the more crucial to ensure substantive justice. The attrition rate, the cases that are reported to police but not led to a conviction or not being reported at all, can be reduced by practices that promote treating victim-survivors with respect and care and by preventing secondary victimization. It improves the efficacy of the justice system without losing the aim of reform and rehabilitation.
The criminal justice system should provide justice to victims, it aims to hold the offender(s) accountable, reduce impunity, and prevent crimes. India remains and will remain proud of its cultural diversity, and behaviors and actions deep-seated in it. As awareness increases, we realize the problems with such norms and attitudes, that have been propelling toxic behaviors, which we are currently resisting. With constant humiliation and denial of experiences, sometimes of their humanity, the victim-survivors find it hard to report. In worse cases, the victims realize wrongdoings after a lapse of a long duration of time. For social justice in India will take time and consistent efforts, law and legal procedures should not further social ridicule, it should not disadvantage the one who is already harmed. Criminal reforms should present itself as the solution, the harbinger of change and equality.
Victim Centric Criminal Reforms
Criminal (Amendment) Act, 2013, notified after the nationwide uproar for better and effective legal reforms was a watered-down adoption of the Justice Verma Committee Report.
A victim-oriented approach is the one where the procedure is focused on the victims, their rights, and violations thereof, beginning from filing a First Information Report (FIR) which sets the criminal justice in motion. As Justice Verma Committee Report presents, rape is not just a crime of passion, it is an expression of power. Power dynamics cannot be isolated from any kind of violence, hence any sexual assault or outraging the modesty of women should be understood with this lens. Problems with the system in place are numerous. In the pre-trial stage, the victims face obstacles during the registration of FIR, no access to medical and legal counselling, and lack of access to adequate health services. The Criminal Amendment Act, 2013 criminalizes police failure to register a complaint, under section 166A of the Code of Criminal Procedure, however, it is not uncommon that harassment is experienced at this stage usually without any repercussion to the police. Deeming the 2-finger test, which was largely used to determine if the victim was habituated to sexual intercourse, as unscientific, the Ministry of Health and Family Welfare Guidelines and Protocols: medico-legal care for survivors/ victims of sexual violence, 2014 (referred to as the MoHFW guidelines) banned it. MoHFW guidelines also provided for obtaining informed consent of the victim, not noting on the absence of injuries and to dispense prejudicial stereotypes towards the victim, however, these continue up to present. The reforms at pre-trial stage should be focused on better training of the medical and police officers, compulsorily sensitising them and providing legal and medical guidance to the survivor, in addition to free of cost medical treatment that is already mandatory.
At the trial stage, primary witnesses, who are usually the victim themselves, turn hostile due to threat and coercion, or prosecutrix not being shielded out of court, though they may be within the court. This calls for witness protection aimed at guarding the victim /witness from further abuses. The nature of the trial in itself is daunting. Sexually explicit questions may cause deep emotional trouble for the victim. The trials are in-camera and the testimonies are taken from behind the screen. The Apex Court in Sakshi v. Union of India mandated requiring questions in the cross-examination to be passed on through the Presiding Officer, to prevent harassment and intimidation by the Defence Counsel. This has to become an established practice along with training the judges and defence counsel to ask pertinent questions in a victim-friendly manner. Where it is feasible, collecting testimonies should be made possible through video-conferencing from the place comfortable for the victim. Section 309 of the Code of Criminal Procedure mandates rape trials to be completed in two months. The reality is far from this. The timelines are not adhered to, due to reasons like adjournments, non-appearing of the party, increasing caseload on the judiciary, poor forensic science laboratories among others. Day-to-day trial with a minimum lapse of time between registering the case and trial will not just quicken the justice but also negate influence and coercion.
Lack of support services and information is a major setback to access to justice, especially for the victims from marginalised communities. States, in line with the Supreme Court guidelines, have made provision and allocation for victim compensation but this is not availed of due to the infamous red-tapism. Nirbhaya Fund, established by the Central Government in the year 2013 for protection, prevention and rehabilitation of women, by setting up 24- hour women helpline and one-stop crisis centres was started to be utilised three years after it was introduced. The state compensation funds are underutilised as well. District Legal Services Authorities, that carry out grassroots implementation and provides legal services can be given more role to play in ease of access to the compensation. Along with witness protection, it is essential to provide shelter and counselling to combat social stigma. With a patriarchal society that views rape as a fault of women, pressure from within and outside the family and lack of any other viable options may lead the victim to re-locate with the abuser, making them more vulnerable. Providing shelter, therapy and skill-training to them may help them recover and prevent re-victimisation.
In addition to the implementation of policies announced and reforms stated to help the survivors, it is important to educate the public and the courts to move away from the notion that sexual offences harm the family honour and as a societal violation to granting more bodily autonomy and integrity to victim-survivors, considering the crime primarily as individual harm affecting the victim and violating their agency.
It is difficult to adopt a victim-focused approach if the experiences of rape and sexual assaults within marriage is not defined, considered and is actively hid from the eyes of law. Marriage should not be impunity to the offender. The offences have to be defined as a violation of unequivocal consent, irrespective of the institution it occurs within.
Where victim-oriented criminal reforms are implemented, the question of applicability and efficacy of restorative justice remains. Restorative justice aims at repairing the harm done to people and relationships rather than only punishing the offender. It is founded on the notion that violations create an obligation to repair the harm, to listen, find validation, support and ultimately take a step towards healing, as opposed to punitive measures. It is seen as more participative and democratic along with meeting the requirements of justice to be rational, discursive and regarding rights. Restorative and retributive justice, though are different, cannot be dichotomised into opposites as the core elements solve purposes such as punishment, rehabilitation, restitution, repair harm. The differences lie in how and what punishments are part of the system.
The justice systems are not mutually exclusive, can work with each other and be adopted at any stage. It can be implemented as a diversion from formal court proceedings, parallel action to the court, or during pre-sentencing/ sentencing/ at the time of release.
Restorative justice is easier to adopt when the offender admits and takes the responsibility of wrongdoings. This enables the possibility of the offender gaining the sympathy of those in the process. If the focus is on restitution, then the range of punishment is an apology, request for forgiveness, and token compensation. In India, it may lead to formalisation and legalisation of coercion and compromise. It strengthens the internal and external pressure on the survivor, which previously did not have any legal backing, to rebuild trust and relationship with the offender. Given the violent nature of the crime and blame and shame suffered by the victim, any efforts of restorative justice trivialises the experience of the victim and propagate toxicity and rape-culture in the society.
Every gender in a patriarchal society is expected and is trained to fulfil their gender roles. Women are expected to be ‘feminine’, that is express emotions such as sympathy, empathy, caring and understanding and invalidates other valid emotions like anger and aggression even when wronged. When the system is unfair to begin with and does not take any active measure to reduce the disadvantages faced by a particular group, the result cannot be fair.
Restorative justice, though by definition is centred on voices of the victim, offender, and the community, in a community dominant society like that of India, voices of both, the victim and the offender may be lost. More of the victim who is from marginalised and underprivileged communities. Restorative justice, even when more socially conscious, may fail to consider vulnerable voices. It may succumb and be influenced by the power structure it operates within, given that there is no precaution against such influences inbuilt in the system.
Focusing on restoring the offender to the society and setting the society back to equilibrium, is similar to the punitive justice in side-stepping the victim, relegating them to the role of observer and undermine their agency. Raised as compassionate, might be at a disadvantage as the compassion for the offender often upstages the compassion for the victim. In a society where women are taught and socially conditioned to be compassionate, their compassion for offender might overshadow their need. The sentencing circles might mean a lack of privacy, embarrassment and unprofessional conduct. Restorative justice, if applied in India, would not be victim-centric as it is blind to the social and power structures and assumes homogeneity.
This does not mean restorative justice is not applicable in whole. The Indian judiciary has adopted restorative justice playing a proactive role in the restitution of the victim through compensation. The concept has trickled into the centre and state governments allocating funds for the causes identified. Restorative justice might be effective if applied at the time of prison release, without the involvement of the survivor. Being offence centric, it can ensure rehabilitation of the offender, provide them validation, hold them accountable and ensure that the offence is not committed again. It is, however, not victim-focused, even if the victim-centric legal reforms are implemented.
About the Author: Shilpha [2016-21] is pursuing B.A.LL.B (Hons) from Jindal Global Law School