An Appeal for Victim Impact Assessment

By Sanyukta Biswas

victim-impact

As is the case with most jurisdictions around the globe, victims of crime were lost in judicial oblivion for a really long time in India as well. The framers of the Constitution dedicated two long well drafted articles for the well-being of the accused, namely, Article 20 and 22, whereas their victims were left to fend for themselves under no specific fundamental rights as such. Time and again, the higher judiciary has come to the rescue of rape victims, for instance, by holding that right to privacy is available even to a sex worker, and that the two finger test is in violation of the right to privacy, which is a facet of the right to life. The original text of the Criminal Procedure Code, 1973 envisaged the role of a victim as little more than that of a spectator who assists the state in a criminal trial as a witness. At the international front, the UN 1985 Declaration of Basis Principles of Justice for Victims of Crime and Abuse of Power initiated a movement for empowering victims around the world. The Malimath Committee Report and Justice Verma Committee Report addressed the lacunae in the criminal justice system with regards to safeguarding the interests of victims and made recommendations for the same. For the first time in 2008, and then in 2013, provisions were incorporated which defined a victim, provided for victim compensation by the state, victim’s right to engage an advocate of his/her choice, victim’s right to appeal and specific directions to be followed in rape trial, etc. Over the years, the Apex Court has delivered the following landmark judgments that went a long way in empowering victims:

Around the 13th Century, when civil torts and criminal actions first became distinguished in England, VIS were permitted, as the Crown stood in the shoes of the victim of the offense in English adversarial proceedings. VIS comprises of written or oral statements by crime victims, describing how the crime has impacted them. Family members are allowed to make such statements as well under certain circumstances. These statements provide information about the damage caused to victims by the crime, in their own words.

The United States Supreme Court ended up striking down statutes allowing VIS in Booth v. Maryland and South Carolina v. Gathers on the basis that a more impactful VIS would result in an enhanced punishment and would be in violation of Eighth Amendment that provides protection against “excessively cruel and unusual punishments”. The VIS were eventually upheld to be constitutional in Payne v. Tennessee with the application of Doctrine of Proportionality  in a favorable manner. It was further explained that if VIS is prejudicial to the point that it renders a capital defendant’s trial fundamentally unfair, the Fourteenth Amendment’s Due Process Clause provides a basis for its exclusion. The introduction of “good character” evidence regarding the victims in these three cases was sharply contested on the basis that it did not play any role in the committal of the crime and considering such evidence would amount to placing greater value on some lives than others.

Under the Indian Penal Code, 1860, there is a scale of punishment and the court decides the quantum of punishment according to this scale.  The Apex Court has held in Bachan Singh  v. State of  Punjab,  that death penalty, as an alternative punishment for murder is not unreasonable and hence not in violation of articles 14, 19 and 21  of  the  Constitution and  also  enunciated the  principle  of  awarding  death penalty only in the ‘rarest of rare cases’. The Supreme Court further laid down the broad outlines of the circumstances when death sentence should be imposed in Machhi Singh v State of Punjab. In light of these judgments, if VIS is indeed introduced in India through legislative measures, it should be able to withstand any challenge made on the ground of constitutional validity.

Introduction of VIS to be heard by the bench during sentencing is essential for the well-being of victims of crime as it has been found that victims who chose to make VIS are reportedly more satisfied with the sentencing. Therefore, they would go a long way in restoring the faith of public, especially during the trial of heinous crimes such as the Delhi rape case dated December 16th, 2012 and Ajmal Kasab who was involved in Mumbai terrorist attack on November 26th, 2008. Victims subjected to bodily harm, threat of violence or actual violence, motor vehicles accidents and sexual abuse should be eligible to make VIS. In case the victim is below the age of 12 or mentally unsound or incapacitated or dead because of the crime, a family member should be allowed to make VIS on behalf of the victim. VIS can be inclusive of the physical injury faced, details of medical fees, emotional distress, psychological impact, loss of earning and how has the crime impacted the victim’s relationship with his/her family and standing in the society.

VIS should be optional as is the case in Ireland and not making a VIS should not be prejudicial to the interest of the victim. Any disputed material upon which the victim does not wish to be cross-examined should not be put to the sentencing court. Discretion should not vest in the public prosecutor discretion to use or discard any parts of the statement provided by the victim without explicit written permission.

Certain procedural safeguards regarding the usage of VIS present in Canada can also be followed in India, such as it being mandatory upon courts to inquire of the prosecutor whether the victim has been advised of the opportunity to prepare a statement, adjourning proceedings to permit the victim to prepare a statement and considering VIS compulsorily if it has been submitted to the Court. The Victim Impact Statement is shared with the defense and when the statement has been entered into court it becomes a matter of public record in Canada and South Australia. In Queensland, permission needs to be sought from the court to keep VIS confidential. In order to encourage victims to file VIS, unique legislative measures should be introduced in India owing to the extremely personal nature of VIS, such as the not letting VIS to be open to cross examination and holding in camera trial proceedings when VIS is being considered to avoid media circus. Factors such as gender, caste and religion of the victim should be taken into consideration only when they bear a direct relevance to the factual matrix of the case to ensure that higher value is not placed on some lives than others. Introduction of victim impact evidence should not relieve the state of its burden to prove beyond a reasonable doubt the existence of a statutory aggravating circumstance. Victims should not be permitted to make suggestions as to the type or length of sentence which should be imposed because a victim is not legally qualified: and is unfamiliar with the rules of evidence, the common law, sentencing guidelines, the purposes of sentencing, and is unlikely to be impartial.

Victim Impact Reports (hereinafter referred to as VIR) are prepared following a request by the court for a professional assessment, and are prepared by professionals such as a psychologist or psychiatrist providing specialist opinion on the traumatic impact of the crime on the victim. Similar to VIS, the Reports do not include comments about the offender or what a sentence should be and are not used until after a conviction has taken place. In India, the government needs to allocate funds for training professionals such as doctors, psychologists, psychiatrists and financial institutions in order to enable them to provide victims assistance in writing VIS and VIR.

[The author has completed her graduation from Gujarat National Law University and post-graduation from Tata Institute of Social Sciences. She has a keen interest in writing about social welfare laws and issues regarding human rights.]

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