Author- Aswathy.T
Abstract
For any victim of crime, summoning the courage to confront and combat the injustice perpetrated against them requires immense strength. During these challenging times, it is incumbent upon our society to unequivocally stand with and advocate for them. This brings us to the concept of victimisation. While there is significant discourse on societal victimization of victims of rape and sexual abuse, less attention is given to the victimization that occurs during court proceedings and police investigations. This is where the concept of secondary victimisation arises – referring to the mistreatment of victims by government officials after a crime has occurred. Regrettably, this concept remains under-discussed, particularly within the context of Indian society and laws. Nevertheless, it is imperative to underscore this issue. The inherent vulnerability of victims of criminal acts necessitates robust legal frameworks and procedural safeguards to protect their rights and dignity. This article seeks to explore Indian legal proceedings and legislative measures designed to advocate for victims, fostering an environment where they can come forward and pursue justice free from intimidation or marginalisation.
Introduction
The term victim was inculcated into the Indian Criminal Procedure Code 1973 after the 2008 amendment. Section 2(wa) defines Victim. In the realm of criminal justice, the concept of secondary victimisation represents a critical yet often overlooked aspect of the system. While primary victimisation refers to the initial harm suffered by individuals as a result of criminal acts, secondary victimisation occurs during subsequent interactions with law enforcement, legal proceedings, and other institutional processes. It encompasses various forms of mistreatment, insensitivity, or neglect experienced by victims from governmental authorities after the commission of a crime. Secondary victimisation is also called “post-crime exploitation” or twofold exploitation. It happens by the framework by which criminal justice functions, especially where the balance is not maintained between the rights of the victim and the rights of the accused. In the case of the Indian criminal justice system, the victim of a crime is only referred to as a mere prosecution witness. The protection of every witness in the process of delivering justice is practically unattainable. However, there is a need for a victim protection mechanism that would allow witnesses or victims of a case to efficiently use such services if they felt the need. Also addressing this issue is certainly important because it highlights systemic issues within the justice system. Despite efforts to protect and support victims, instances of re-traumatization or marginalisation persist, undermining victims’ trust in the judicial process and their ability to seek justice effectively.
Victim rights in India the long journey
In India, the journey towards ensuring justice for victims of crime unfolds with dramatic twists shaped by tragic incidents and impassioned activism. The brutal Nirbhaya gang rape in Delhi shook the nation in 2012, causing a public outcry and prompting the government to convene the Justice J.S. Verma Committee. This committee’s recommendations for sweeping reforms in criminal law aimed to create a safer environment for women, marking a pivotal moment in India’s legal landscape. These tragedies catalysed legislative amendments, including the 2009 addition of victim definitions in the Code of Criminal Procedure and mandates for State Victim Compensation Schemes. The judiciary’s evolving sensitivity, exemplified by rulings ensuring legal representation, anonymity protection, and compensation for rape victims, further shaped India’s response to victim rights. Guided by the Law Commission of India’s vision, these reforms continue to evolve, weaving a narrative of resilience, justice, and the pursuit of a safer society for all. The evolution of victim’s rights within India’s criminal justice system has been shaped by various influential reports and amendments. The Malimath Committee Report of 2003 highlighted the often-overlooked role of victims in legal proceedings and recommended significant expansions in their rights. Among its proposals were measures to prevent secondary victimisation, the introduction of victim advocates with defined roles, and the enactment of legislation that would reinforce the state’s obligation to deliver justice swiftly and fairly, including through state compensation schemes (Malimath Committee, 2003). Building on these recommendations, the 2009 amendment to the Code of Criminal Procedure in India acknowledged the insights from the Law Commission of India’s 154th Report, particularly emphasising victimology. This legislative update introduced a formal definition of “victim,” addressing the historical lack of recognition and involvement of victims in court proceedings. The amendment also granted victims the right to appeal and established state-funded schemes aimed at compensating and rehabilitating crime victims. These reforms reflect a broader societal recognition of the critical role victims play within the criminal justice framework, marking significant strides towards ensuring their rights and dignity are upheld throughout legal proceedings and beyond.
Secondary Victimisation
To understand Secondary Victimisation, it is necessary to understand what is victimisation in the International level United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) and the Council of Europe Convention on the Compensation of Victims of Violent Crimes (1983), do not explicitly provide a standalone definition of the term “victimisation” as a single entity. Instead, they outline principles, rights, and protections related to victims of crime and abuse of power.
Victimisation encompasses two distinct forms: primary and secondary. Primary victimisation directly results from the crime or abuse suffered by an individual, leading to immediate harm such as physical injuries, emotional trauma, or financial loss. In contrast, secondary victimisation arises not from the crime itself, but from insensitive treatment and systemic failures encountered during the aftermath. This includes victim-blaming attitudes, inadequate support services, prolonged legal processes, and sensationalised media coverage.
What makes secondary victimisation particularly dreadful is when it originates from authorities like courts or investigation officers, who hold the power to prosecute offenders but instead exacerbate the plight of victims. Such actions undermine the victims’ rights, perpetuate their trauma, and hinder their path to justice and recovery. It reflects a profound failure in the justice system to provide compassionate and supportive responses to those who have already endured significant harm. One such incident was when a judge commented in his judgement that “Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons, as narrated by her, the same is not at all consistent with those of an unwilling, terrified, and anguished victim of forcible intercourse, if judged by the normal human conduct”. This statement not only fails to understand the profound impact of trauma but also perpetuates harmful misconceptions about how victims of sexual assault “should” behave. The suggestion that a victim’s demeanor or conduct during or after an assault somehow invalidates their experience is not only insensitive but deeply damaging.
Criminal Proceedings and Victim Protection
The famous saying of the criminal justice system “1000 culprits can escape, but one innocent should not be punished” means that every accused should be given a benefit of doubt. The present focus of the system is to give the accused person a benefit of doubt and if found guilty punish him. But what about the protection of the victim, is just mere punishment of the accused enough? Here the role of the victim ceases to exist when the accused is punished. There used to be no laws for victim protection in the Indian legal system but over the years certain legislation for the victim rights have been included.
Section 157(1)of the act provides guidelines for staking statements in case of offences such as rape statement.
Now no longer every statement given by the victim needs to be written because under section 164(1) of the Act statements can be recorded by audio video electronic means.
One means of protecting the victim from any kind of victimisation is through maintaining anonymity about the victim section 327(3)(b) of the Act provides that the court or the judge has the authority to impose ban on printing or publication of trial proceedings in relation to an offence of rape also under clause(2)(a) of the same section provides for in camera trial shall be conducted that to by a by a woman Judge or Magistrate.
In cases of Child Sex Abuse the investigation process needs to be completed within three months from the date on which the information was recorded by the officer in charge of the police station under section 173(1)(a)of the Act .”
Judiciary and Victims of Sexual Violence
In 2022, a session court in Kerala granted bail to accused author Civic Chandran in a sexual harassment case, delivering a shocking judgment. The court controversially ruled that Section 354 of the Indian Penal Code, which addresses outraging a woman’s modesty, does not apply if the complainant was dressed provocatively. It further suggested that physical contact and explicit sexual advances must be present for the section to apply, implying that the victim’s attire justified the harassment. This victim-blaming stance perpetuates harmful stereotypes that a woman’s clothing determines her consent and suggests women are responsible for preventing sexual assault. Such comments from the judiciary are deeply concerning as they undermine efforts towards gender equality and reinforce outdated patriarchal attitudes.
One notable case of secondary victimization in India occurred in the aftermath of the infamous Nirbhaya gang-rape case in Delhi in December 2012. The brutal assault on a young woman on a moving bus sparked national outrage and highlighted systemic issues within the criminal justice and societal response to victims of sexual violence.
In the immediate aftermath of the incident, there were reports of insensitive remarks and victim-blaming attitudes from some public officials, media personalities, and even members of the public. For example, some authorities and commentators questioned the behaviour and choices of the victim rather than focusing on the crime itself and the actions of the perpetrators. This contributed to a broader discourse that, in some instances, shifted blame onto the victim rather than placing responsibility squarely on the perpetrators and the societal factors that enable such violence.
Reforms Required In Indian Legal System
While going through the proceedings of the Indian legal system the survivors often feel they are treated even worse than the accused. The principle such that victims should be treated with compassion and respect for their dignity all these stay just in the papers and documents. The system always forgets that it is their right, not a charity. The issue of secondary victimisation needs immediate attention. It is better to treat a wound before it gets severe.
- Concerning secondary victimisation there are legislations that have been adopted and proven to be effective by the foreign countries. In the U.S. there exists a separate victim-specific statute. Victims laws have been passed by many states in the U.S. The Victim’s Rights and Restitution Act was enacted at the federal level in 1990 and the Bill of Rights in 1980. The Victim of Crime Act of 1984 also created the Crime Victim Fund, which is a significant source of money for victim services.
- The “Code of Practice for Victims of Crime” has sections on victim expectations that outline the services that the victim expects, such as protection, practical support, and information.
The same could be applied in India, but the issue is not introducing new law but ensuring its effective implementation. So more than focusing on introducing new laws it is more important to ensure its implementation at levels.
- Provide police officers enough training to adequately respond to the needs of victims in different criminal incidents, and also provide enough awareness to the victims about their rights during the proceedings.
- In addition to financial assistance, the compensation should include the mental and psychological pain brought on by the crime. Sadly, this is missing from the discourse on sexual assault today.
Conclusion
The struggle by victims to gain formal rights within the criminal justice system continues. In every stage of investigation, the victim is humiliated by asking a victim of sexual assault what kind of clothes they were wearing at the time of offence by the police. There are several instances of debasement and insensitive remarks against the survivor which ultimately leads to secondary victimisation. Further, they go through agony during the court proceedings. It is the criminal justice system that is supposed to protect the victims instead they are victimised. This would only further discourage the survivors from approaching the legal system. The criminal justice system’s stakeholders must work together to revamp the process because it appears that the victim’s viewpoint has been forgotten. In the scenario where the crime is being perpetrated against him, the victim is only a mere prosecution witness.
Most survivors found the court experience to be stressful because they were left to handle the criminal justice system’s formalities on their own. Numerous court appearances, trial delays, unpleasant and repetitive questioning, inappropriate comments from judges, and unhelpful and uninterested public prosecutors were some of the issues. Indian legislation concerning to victim protection is far backward compared to foreign legislation but the above results shows that along with the introduction of new laws, the implementation of the existing laws is also required. The report indicates that re-traumatisation increases stress and prevents recovery from rape even after years after the incident. It also affects every aspect of an individual’s life, education, employment, and economic well-being.
Over the years, a significant shift has occurred where victims of sexual violence have become less fearful of societal judgment, more educated about their rights, and more empowered to speak out. There is a growing awareness that in cases of sexual violence, it is not the woman or her family who should hide their faces, but rather the accused who should feel ashamed. While legal reforms may be slow to change, there is hope that societal attitudes and norms can evolve positively. This shift reflects a broader understanding that victims deserve support, justice, and respect and that perpetrators should be held accountable for their actions.
FAQ
Can an authority be held liable for commission of Secondary Victimisation?
Under Indian law, authorities such as police officers, healthcare providers, judicial officers, and other government agencies have a duty to protect and support victims. If they fail to provide adequate support, mishandle cases, or treat victims insensitively, they may be held accountable through various legal grounds.
Where can victims of secondary victimisation seek help in India?
Victims can approach:
- Legal aid services for assistance in navigating the legal process.
- Human rights commissions or ombudsman for complaints against authorities.
- Non-governmental organizations (NGOs) specialising in victim support and advocacy
