Compensation to Rape Victims

Introduction:

A person who indulges in crime does not think of the punishments which he or she may get after the commission of a crime. No doubt that the primary victim suffers a lot but her family members and society at large are affected by such type of crime. The person committing such a serious crime ought not to be spared after being proved guilty of their offense. Though the investigation lies in the hands of the persons making the investigation, prosecutors but the whole society fights for seeking justice. This article addresses the compensation, its process, and schemes that are granted to rape victims.

Relevance and scope of a victim compensation scheme[1]

Criminal law protects and safeguards every individual who is a victim of a serious offense against him or her. It is mandatory to compensate rape victims because they are affected by tragic incidents. The compensation can help the victims undergo proper treatment and help in supporting their basic livelihood. As per article 21 of the constitution of India, the right to life and personal liberty of a person is being guaranteed and this article covers a right to avail compensation by a rape victim.

Shri Bodhi Sattwa  v. Subhra Chakraborty

The court ordered the accused to payment of interim compensation that is 1,000 rupees per month to a victim. The court opined that a fundamental right of right to life of a person which is mentioned in article 21 of the Indian constitution was being violated by the accused in this case.

History: Legislation

Statute of consent’s age in secular law, 1275 in England was considered as part of rape law.

As per the law of 1576, unlawful abuse of female who is below 10 years of age was considered to create more serious punishment when a girl child was below 10 years while retaining less punishment for unlawful abuse of girl below 10 and 11 years old. The view behind setting an age of consent at 16 years or more did not gain support in the 1930s. In the 1970s, the age for giving consent expanded with the help of reform campaigns of rape laws. The new connection of teenage pregnancy with the law was presaged in the 1990s. Law related to consent age was expanded and comprised same-sex act.  In the 21^st century, the uniform code was adopted by NSW. Rape law was first defined in 1860 in the penal code of India. In India, the age for giving consent has been expanded to 18 years. Thus, any sexual activity despite the consent of a female below 18 years would constitute statutory rape.

The criminal amendment act of 2013 is also passed by Lok Sabha and Rajya Sabha. This act provides for amendments in the evidence act, IPC, and CrPC in relation to laws related to sexual offenses.

Laws Related to Compensation to Rape Victims[2]

Under Section 375 of The Indian Penal Code definition of rape is mentioned. Section 376  mentions the punishment as per which the accused is liable when a woman is raped by a group of people at the same time.

As per Section 357 of Cr.P.C.:

Subsection 1 mentions the punishment. The punishment shall include a fine or a death sentence along with the fine. The order for compensation depends on the discretion of the court. The compensation is not awarded while acquittal of the accused.

As per Sub-section 2 of this section, the amount of fine is not paid before the period allowing presentation of the appeal elapse if the fine is imposed in the case that is subject to an appeal.

The court is empowered to provide compensation as per Sub-section 3 if the loss is suffered by a person. The compensation can be provided by the court even if a fine does not form a part of the sentence that is imposed while punishment.

Section 357A:

As per section 357, compensation is awarded to the victim only when the trial gets over and when the accused is successfully convicted. As per this section, the state is not liable to compensate the victim. Therefore, the amendment of 2009 took place, and thus, section 357A imposed the liability on the state for compensating the victim who is affected due to crime. This section also provides for the rehabilitation of the victim even when the accused is not tried.

Section 357B:

According to this section, the state government shall award the compensation amount to the victim which will be an addition to the fine paid under sections 376D, 376DA, 376DB, 376AB, and 326A of the Indian Penal Code.

Section 357C:

The victim is to be provided with free medical treatment and first aid by all public and private hospitals if the victim has suffered because of an offense which comes under section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and section 376E of IPC. The hospital is required to inform the police about such incidents.

As per section 228A(2) of the penal code of India, a person is not allowed to disclose the name of a victim of rape and if the person discloses the name of the victim, he shall be punished for a term of 2 years along with fine.

As per section 114-A(3) of the Evidence Act of India, the presumption related to an absence of consent can be made in certain rape prosecutions.

As per section 53(1)(4) CrPC, the medical practitioner can request a police officer of the rank of sub-inspector but not below it, for making a necessary examination of an accused to afford the required evidence by using the force which is mandatory for the said purpose.

As per section 164A(5) of CrPC: This section mentions a provision of medical examination of a rape victim.

As per section 327(2)(6) of CrPC, there is in camera trial of a rape victim.

[3]The minimum punishment is being mentioned as per section 376(1) of IPC. Punishment in rape cases is imprisonment of 7 years. Such punishment may be life imprisonment or 10 years. The accused is also be liable for a fine if the woman who is raped is not his wife and not under 12 years. He shall be punished with imprisonment for a term of 2 years or fine or both in such case. The court can at its discretion order a sentence of imprisonment for less than 7 years in case of adequate and special reason which needs to be specified in the judgment.

Punishment for rape of woman who is below 12 years

The punishment is imprisonment of 10 years which may be life imprisonment and the accused is also liable to a fine. The court can at its discretion impose a punishment that can be less than 10 years in special cases.

Punishment in a rape case of a woman, knowing that she is pregnant

The accused is punished with imprisonment of 10 years and which may be life imprisonment and the accused is also liable to a fine. Though the court may think it fit to impose the imprisonment for less than 10 years for adequate and special reasons to be mentioned in the judgment.

Punishment for gang rape as mentioned under section 376 subsection 2g

Where a female is raped by a group of people who act as per their common intention then, every such person of that group shall be guilty of the crime under the meaning of the said sub-section. Punishment is of 10 years and maybe of life imprisonment and the accused is also be liable to a fine. The court may impose imprisonment that is less than 10 years for adequate and special reasons to be mentioned in the judgment.

Punishment in a custodial rape case

Imprisonment of 10 years which may be life imprisonment and the accused is liable to fine.

Victim Compensation Fund Scheme (Central)[4]

This scheme was issued in August 2015. The main object of this scheme was to reduce the inequality in compensation that is granted to the victim by different states. Another objective was the effective implementation of this scheme. This scheme sanctions an amount of rupees 200 as an initial fund for supporting rape victims or victims of acid attacks, women injured in cross-border firing, or human trafficking. The central fund reimburses the expenditure incurred by states. The uniform compensating amount is fixed in all states which comprise of rupees 1 lakh in the rehabilitation of human trafficking victims and 3 lakhs for victims of acid attack. This compensation shall be extended by 50% if the victim is below 14 years. Some states except Assam, Arunachal Pradesh, Himachal Pradesh, Chhattisgarh, Tamil Nadu, Karnataka, and UP.

Compensation Scheme for Sexual Assault Victims and Other Crimes, 2018

On 11^th may, 2018 this scheme was considered by the supreme court. This scheme was framed by NALSA, for compensation to victims of acid attacks and sex assault. This scheme was additional to the compensation scheme of states which already existed. The minimum and maximum amount of compensation that is listed for offenses in the scheme is provided under this scheme. This scheme also serves as a remedy for the victim in serious cases as it provides for instant relief of compensation which ranges from 5000-10,000 rupees. This amount is paid to the victim immediately after receiving the application or when a case is filed for the first hearing. This scheme provides rupees 5-10 lakhs as minimum compensation at the time of loss of life or in gang rape cases and rupees 4-7 lakhs in rape cases or unnatural sexual assault.

This scheme plays a vital role in the rehabilitation of female victims in society.

The following acts govern schemes for victim compensation in different states-

1. Bihar compensation to victim scheme, 2011
2. Delhi compensation to victim scheme, 2011
3. Karnataka compensation to victim scheme, 2011
4. Arunachal Pradesh compensation to victim scheme, 2011
5. Victim compensation scheme, Chattisgarh, 2011
6. Goa compensation to victim scheme, 2012
7. Odisha compensation to victim scheme, 2012
8. Himachal Pradesh compensation scheme, 2012
9. Tamil Nadu compensation to victim scheme, 2013
10. Gujarat victim compensation scheme, 2013
11. Uttar Pradesh victim compensation scheme, 2014
12. Madhya Pradesh crime victim compensation scheme, 2015

Each state consists of different eligibility criteria along with restrictive clauses according to which compensation is granted to the victim of crime. The uniform practice has not complied through such state victim compensation schemes.

Scope of Compensation to Legal Representatives of Victim in Case of Victim’s Death

The interim amount is disbursed in full. 75% of the final compensation amount is put in a fixed deposit for a period of 3 years and the other 25% is available for utilizing the amount and metting the initial expense by representatives of the victim.

In the case of minors, 80% of the awarded amount is deposited in a fixed deposit account. This amount can be drawn when the minor attains the age of majority. It can be drawn before 3 years of deposit. Though the amount can be drawn for medical or educational purposes in exceptional cases. Rupees 5,000 or rupees 10,000 is immediately disbursed to the representatives of the victim through a preloaded cash card by the secretary from a nationalized bank after receiving an application by SLSA or DLSA. An additional amount of rupees 2 lakhs is also awarded to the victim as possible within 2 months after the order for compensation.

Adequacy of Compensation

The criminal amendment act of 2013 was implemented to tackle the issue of inadequate compensation relating to rape or sexual crimes against women and children. Nirbhaya fund was created. A central victim compensation scheme was established as discussed above. But only 36% of the fund was used in the past 7 years and 99% of minor rape victims did not get any compensation. Therefore, Supreme Court was of the view that the national legal services authority should set up a committee for developing model rules related to compensation for the victim of sexual offenses or acid attacks. Thus, the amount of compensation is specified for sexual crimes against women and children as per the compensation scheme of 2018 for women victims. This scheme is applicable across the whole of India.

International Perspective[5]

The UN declaration considers 4 major elements of rights of victims-

1. Restitution
2. Assistance
3. Compensation
4. Fair Treatment

The declaration recommended certain suggestions for addressing the problem of a victim of a crime which is as follows-

1. Treatment of victims with respect and compassion for their dignity.
2. Proper judicial and administrative mechanisms should be set up for enabling the victim to redress their problem through fair and formal procedures.
3. Information about the role, the timing of proceedings, and the disposition of their cases should be given to the victim.
4. Victims should be given chance to present their opinions.
5. Proper assistance must be given to victims throughout legal proceedings.
6. Measures should be taken to reduce the inconvenience to victims, to protect their privacy, and to ensure their safety.

Position in the US

Crime victim fund is base for funding the services of the victim throughout the country. This fund consists of criminal fines, penalty fees, forfeited bail bonds, etc. This amount is charged from the offenders who are convicted of federal crimes and not from the taxpayers. Financial assistance is being provided through this program to the federal and state crime victims. The maximum award maybe $10,000 to $25,000.

Position in the UK

European convention of victim compensation due to violent crime, 1983 grants rights that are recognized under UN declaration. It deals with the effective rehabilitation mechanism with the help of the criminal injuries compensation act, 1995, and thus redresses the problems of victims.

Present Scenario[6]

The principle of victim compensation in our country is recognized under the CrPC, 1973. As per section 250 authority is granted to magistrates for directing the complainant to accused by them without any reasonable cause.

As per section 358, the court has the power to order a person for compensating another person if she or he has caused a police officer to arrest such person wrongfully. A victim’s right for receiving compensation is considered only when the substantive sentence of the fine was imposed and was ltd. to the fine which is realized.

As per section 357(3) of crpc, the victim can receive compensation even when the accused is not sentenced. The allocation of funds for relief and rehabilitation of victims of rape has reduced from rupees 36.2 crores in 2010-11 to 7.5 crore in 2011-12 as shown in the budget outlays. Rupees 25,000 are awarded to the victim suffering bodily injury and rupees 1,00,000 are awarded at the time of death. 154^th law commission report recommended incorporating new section 357A in the code. This section is incorporated for providing the comprehensive scheme for compensation to all the victims adequately and lawfully.

Case Laws

Lillu Alias Rajesh & Another v. State of Haryana[7]

Court held that 2 finger test and its interpretation violate the rape survivor’s right to privacy, mental integrity, and dignity as well. Therefore, this test cannot denote the presumption of consentdespite the report being positive.The court dismissed the appeal due to lack of merit.

Narayanamma v. State of Karnataka[8]

The SC did not agree with the judgment of HC and restored the judgment of Sessions Judge and stated that the sentence which is awarded by session judge is not adequate because it is only of 3 years in the crime of rape. But SC did not wish to extend the punishment and allowed the appeals in the mentioned terms.

Tekan Alias Tekram versus M.P

The supreme court opined that there was a discrepancy in the amount of compensation which is granted in rape cases that were decided by states under schemes of victim compensation. The court compared the compensation amount which was granted by different states to the rape victim. The court found that the scheme for victim’s compensation in Jharkhand provided rupees 20,000 as maximum compensation and goa granted rupees 10 lakhs as maximum compensation. The court pronounced that state has to pay rupees 8,000 compensation per month to the victim till her whole life.

Hari Kishan versus Sukhbir Singh[9]

Apex court ordered subordinate criminal courts to liberally granting compensation so that victims do not have to rush to civil courts for demanding compensation. Section 357 plays a vital role but courts have invoked it rarely.

Conclusion

The court must order an adequate compensation amount for the victim in rape cases. Rape is a serious crime against mankind. It puts psychological pressure on the victim and due to this, the victim should be supported. Article 41(6) and Article 51-A(7) of the Indian Constitution lays down the state’s duty for securing the right to assist the public in disablement cases. The state must focus on developing humanism. The state must implement strict laws against rapists and should immediately impose rigorous punishment on an accused if an accused is proven guilty so that the fear of rigorous immediate punishment in the rapist’s mind can prevent innocent people in society.

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References:

[1] Md Tasnimul Hassant, The Case for Compensation to rape victims, SCCONLINE(June,22, 2020, 19.05), https://www.scconline.com

[2]J. Mary Nisha, Interim Compensation to Rape Victims, Indian Law Portal (June,23, 2020, 19.07), https://indianlawportal.co.in

[3]Akshay Goel , Rape Laws In India- Appropriate or not?, Legal Services India.Com (August, 5, 2020, 19.09), http://www.legalserviceindia.com

[4]J. Mary Nisha, Interim Compensation to Rape Victims, Indian Law Portal (June,23, 2020, 19.07), https://indianlawportal.co.in

[5] Barcelona Panda, Victim’s Right To Rehabilitation, Manupatra (August, 5, 2020, 19.08), http://www.manupatra.com

[6] Barcelona Panda, Victim’s Right To Rehabilitation, Manupatra (August, 5, 2020, 19.08), http://www.manupatra.com

[7]Lillu alias Rajesh & another v. State of Haryana, SCC OnLine 2013, SC 337

[8] Narayanamma v. State of Karnataka, SCC OnLine 1994, SC 728

[9] Hari Kishan versus Sukhbir Singh, SCC OnLine 1988, SC 984