Introduction
In any criminal justice administration, the victim[i] constitutes the most important entity. The offences are seen as crimes against society rather than the violations of the victim’s rights. Generally, it is said that victim suffers victimization at 2 level- primary and secondary.[ii] According to Conklin, crime is the first form of victimization and fear of crime is the second.[iii]
Primary victimization happens when initial interaction between victim and the offender happens at the time of committing the offence. Primary victimization is caused by the offence against the society at large. This is the immediate consequence of the offender’s, the person who caused harm to the victim’s, action.
On the other hand, secondary victimization takes place when a victim’s family speaks out about it and is re-victimized through the words or actions of service providers, family, “friends” or other members of the public i.e., by the institutions and agencies of society. This happens in many ways, such as blaming the victim, etc. Sometimes, secondary victimization can be more excruciating than the primary, as at the secondary stage the victim is questioned by state many times and the victim constantly keeps thinking about how he suffered primary victimization.
The article focuses on secondary victimization. Part 2 explains the process of how the secondary victimization takes place unintentionally by the state during the criminal proceedings. Part III focuses on how the judiciary has looked at the issue of secondary victimization in cases. Part IV concludes the article with author’s analysis and suggestions.
Secondary Victimization from The Criminal Justice System: Meaning and Content
According to U.N., Secondary victimization refers to the victimization that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim. Secondary victimization is also sometimes referred to as Post Crime Victimization or double victimization, i.e., which is not direct result of crime but through the victim’s reaction to the offence by change in perception.
Secondary victimization happens during the proceedings or state interaction with the victim. Although victim’s participation in the criminal proceedings can be beneficial to the victim,[iv] for some it can cause secondary victimization.[v] Secondary victimization might end up with traumatic stress to the victim and alienation from the society. This might reduce victim’s faith in legal system.[vi]
With respect to the criminal justice system, criminal proceedings are initiated by giving information to the police followed by investigation. What follows in a trial is often secondary victimisation through repeated appearances in Court in a hostile or semi-hostile environment in the courtroom.[vii] As compared to accused’s participation in the criminal proceedings, victim has not been given such protection so as to avoid secondary victimization whereas for instance, accused has rights such as presumption of innocence, etc.
Historical Overview: Committees and Reports
The Committee on Reforms of Criminal Justice System was constituted by Government of India, Ministry of Home Affairs to consider measures for revamping the Criminal Justice System. In this connection, for providing justice to victims of crime, Committee made its recommendation as follows:
“(vi) Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization”.
Most famously in the case of Smt. N. Nagamma v. The Registrar (Admn.)[viii] the court, even describing the petitioner herein as a victim, has paved the way for the admonition of her conduct and the initiation of disciplinary proceedings against the victim. The judgement herein talks about the Chapter I of the Hand Book[ix].
The Government of India, following the Nirbhaya case[x], constituted a committee which was headed by former Chief Justice of India, J. S. Verma. Professor Sandra Fredman FBA QC (hon), on the invitation of Verma Committee, with the assistance of members of Oxford Pro Bono Publico. The committee had prepared a report titled “Reform of India’s Sexual Violence Laws” in January 2013. In one of the recommendations mentioned, the report states to provide “Survivor Support Services”, which embraces the avoidance of secondary victimisation by the criminal justice system and society. This response on the part of the university and their attempt to blame the victims is what is pointed out by the U.N. in the Hand Book as secondary victimisation.
“35. We submit that sexual violence must have a legislative right to state funded support services in order to obtain justice, to facilitate physical, mental and emotional recovery. To obtain monetary compensation for such harm, and to avoid secondary victimization by the criminal justice system and society.”
Judicial Response to Secondary Victimization
Followed by Malimath Committee Report, the Madras High Court in M. Kavya case[xi] stated that the least institutions are expected is not to victimise the survivors even if Survivor Support Services are not provided. Hence, the emphasis is to prevent secondary victimisation through repeated appearances in Court, for the victim, who has to face a hostile or semi-hostile environment in the Courtroom. Consequently, we deem it appropriate to observe that where the offences were of the same species and charges altered, efforts should be made by the Court to assess the necessity of a de novo trial and to ensure that the victims do not face secondary victimisation.[xii]
Indian courts have, at various instances, taken into consideration the issue of secondary victimization. SecondaryVictimization of complainant/victim[xiii] cannot be allowed to continue. Care shall be taken to ensure that the victimized child receives proper care and physical and psychological treatment and that due care is taken to avoid secondary victimization during the investigation.[xiv]
With special regards to the POCSO Act[xv], Children who have been sexually abused are not only traumatized as a result of their experience, but are also more vulnerable to further and repeated abuse and at risk of secondary victimization at the hands of the justice delivery process.[xvi] Secondary Victimization might happen in any criminal cases. For instance, Children Affected by Conflict, Commotion, Calamity, the Rule 29 of The Gujrat Juvenile Justice (Care and Protection of Children) Rules, 2011 infers that in preparation of the report and during procedures, every effort shall be made to avoid secondary victimization.[xvii]
Conclusion
Secondary Victimization can be equally to or more throbbing than the Primary Victimization. Hence, it requires a deliberate expansion in the criminal administration to ensure protection besides participation of the victims during criminal proceedings. Further extensive recognition of impact of secondary victimization on victims might help facilitate the better access to justice. Victim is the aggrieved party and if the victim himself wouldn’t have the faith in criminal justice system, the state fails to serve justice to the victim. Prevention of Secondary victimization would require the more intense and rigorous mechanism. It affects the party psychologically along with the physical harm in criminal cases. Hence, Investigation team should observe the victim’s behaviour during and after the judgment in the matter.
References:
[i] As per Section 2(wa) of Criminal Procedure Code, 1973, “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.
[ii] Harvey Wallace & Cliff Roberson, Victimology: Legal, Psychological and Social Perspectives, 67 (3rd ed., 2011).
[iii] John Concklin, Dimensions Community response to the crime problem. Social Problems, 18(3):373, 1971.
[iv] Herman discusses the potential benefits of participating in the criminal justice system. For those victims, participation in criminal proceedings may aid them in healing and provide them with greater safety and protection and compensation. See Judith Lewis Herman, The Mental Health of Crime Victims: Impact of Legal Intervention, 16 J. of Traumatic Stress 160, 161 (2003).
[v] Secondary victimization is defined as the wounds suffered by victims when they come in contact with the criminal justice system as complainants or witnesses. See Pamela Tontodonato & Edna Erez, Crime, Punishment, and Victim Distress, International Review of Victimology, Vol 3, pp. 33, 34 (1994).
[vi] Uli Orth, Secondary Victimization of Crime Victims by Criminal Proceedings, 15 Social Justice Research 313, 314 (2002).
[vii]Mallikarjun Kodagali (Dead) Represented Through Legal Representatives v. State of Karnataka and Others, [2018] 4 MLJ (CRL) 744.
[viii] Smt. N. Nagamma v. The Registrar (Admn.), 2018 (6) ALT 454.
[ix] Supra, note 7.
[x] Mukesh and Anrs. v. NCT Delhi, (2017) 6 SCC 1.
[xi] M. Kavya & Anr. v. The Chairman, University Grants Commission, (2015) 1 LW 835
[xii] Lakhi Ram Takbi v. State of Sikkim, LNIND 2019 SIK 9.
[xiii] A term was used by Hon’ble Supreme Court in the case of Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka, (2019) 2 SCC 752.
[xiv] Suman Nalwa and Hari Dev Kohli on Commentary on Juvenile Justice Act, 2nd ed.
[xv] Protection of Children from Sexual Offences Act, 2012
[xvi] Dr Nuzhat Parveen Khan, Textbook on Women & Child Related Laws, 1st ed.
[xvii] Suman Nalwa and Hari Dev Kohli, Commentary on the Juvenile Justice Act, 2nd ed.
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