The principle of fairness makes it imperative for a punishment to be proportional to the mental, as well as physical turmoil experienced by the victims. ‘Victim Impact Statement’ helps achieve utmost proportionality in punishment. Further, it is also used as an aid in restorative processes to help the victims, and their family members omit the trauma created by the disturbing experience from their lives.
A Victim impact statement means “a written or oral presentation to the court by the victim or the victim’s representative that indicates the physical, emotional, financial, or other effects of the offense upon the victim.” Multiple factors have to be considered before sentencing an accused for a crime. The nature of an offense can be determined via the facts of the case, but the extent of the trauma suffered by the victim is determined by taking into consideration, the mental and the physical sufferings of the sufferer.
INTRODUCTION OF VICTIM IMPACT STATEMENT IN INDIA
Victims mean “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that violate criminal laws operative within the Member States, including those laws proscribing criminal abuse of power.”
The Indian penal system does not provide for a standard punishment system, because the brutality with which each crime is committed differs from one another. Hence, formulating a rigid sentence for each crime would result in a grave miscarriage of justice.
The accused in each case has the obligation of attending the proceedings and presenting their side of the story. But, the victim is not granted this opportunity and cannot reiterate the losses suffered by them. Further, each victim has an individual perspective to present in front of the court, which cannot be predetermined or assumed without hearing. This ignorance of the victim’s rights results in secondary victimization. Secondary victimization means “victimization that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim”. This misdemeanor faced by the victims deteriorates their standing, minimizing the prospects of recovery.
The UN 1985 Declaration of Basis Principles of Justice for Victims of Crime and Abuse of Power ascertained the need for reforms in victim treatment and required its member states to recognize, adopt, and respect standard measures for protecting victim rights.
Victim Impact Statement was first introduced in the USA in 1976. Subsequently, it was introduced in the jurisdictions of Canada, Australia, UK, etc. The need for a Victim Impact Statement system in India was first called for in Mallikarjun Kodagali (Dead) ... vs. The State of Karnataka. The court held that “A victim impact statement or a victim impact assessment must be given due recognition so that an appropriate punishment is awarded to the convict. In addition, the need for psycho-social support and counseling to a victim may also become necessary, depending upon the nature of the offense.”
IMPORTANCE OF VICTIM IMPACT ASSESSMENT
Victim Impact Statements were introduced to humanize the process of punishment of an accused. The findings submitted by the investigative agencies are the objective aspects of the case. CRPC Sec 313 allows the system to examine the accused. But the victims do not get an opportunity to present the loss to mental or physical health, livelihood, family members, sustenance, etc. suffered by them. It may also succeed in providing certain information to the court which may otherwise not be accessible.
In the USA, over 80% of judges say that “they use the information found in a victim impact statement as part of their decision on sentencing a convicted offender, which is a rate that dates back to at least 2001.”
In India, influential people sometimes tend to bend the ways of law in order to manipulate the case and omit the burden of proof. In such cases, the facts presented before the court can be biased and disadvantageous for the victim. These inequalities lead to an easy way out for the accused, while the victim fails to receive any damages. Further, it also instills a fear in the minds of the victims of pursuing legal action against any wrongdoers because of the conception that the system supports those who are powerful. Therefore, it is imperative to allow the victims to present an unprejudiced story in front of the court.
Recently, the Allahabad High Court asked the Supreme Court to take into consideration the Victim Impact Statement reports while dealing with ‘grave and serious offenses’. But the question of unfair punishment for the accused in particular cases has been repeatedly raised. Some social scientists discourage basing judgments on subjective factors, such as; emotions. It is believed that each victim has a different coping ability, and a particular offense can have a non-identical impact on different persons. Thus, considering victim impact reports can result in inequitable treatment while subjecting an accused to punishment.
Further, thinkers have contended that allowing a victim to dehumanize an accused, sometimes even using rhetoric expressions, can prejudice the juror and result in a biased judgment. The facts asserted by the victim might be unimportant for the case but they could have the ability to incline the judge in their direction and exaggerate the findings of the case, making it difficult for the judge to form an opinion that conforms to the standard of a fair legal system.
In most cases, a victim impact statement is the only mode of exposure available to the victims. Therefore, its imperativeness cannot be doubted. Further, we have to understand that a proper set of guidelines exist for determining the procedure of taking a victim impact statement. The instructions make it necessary for immaterial facts to be excluded from the statements. The accused is also presented with an opportunity to disagree with the accuracy of the statement. Hence, the fear of unfair punishment to the accused can be negated by following the established rules. A victim impact statement positively affects the healing process of the sufferers and has a remedial and restorative influence over them. Therefore, it should be appropriately used by the courts to deliver justice.
*The article has been written by Avesta Vashishtha, first-year law student at RMLNLU, Lucknow*