The criminal justice system is often seen as a zero-sum game. Someone loses, someone wins. The accused seeks acquittal and the state, which represents the victim, seeks conviction.Unfortunately, in this cacophonous process, the victim is often times treated as an afterthought. This may have been the impetus for the controversially constituted ‘Committee for Reforms in Criminal Law’ to have suggested the introduction of a ‘Victim Impact Statement’ (VIS) before the sentencing stage in a trial.VIS was initially introduced in the United States. The same was upheld as constitutional post Payne v Tennessee by the US Supreme Court. Since then, other jurisdictions such as Canada, the United Kingdom, New Zealand and Australia have adopted it as well. While the implementation of VIS differs from jurisdiction to jurisdiction, broadly, a VIS is a process whereby the victim, who has so far been a witness in a criminal trial, can be heard by the court, either through a written or an oral statement. The aforementioned statement of the victim allows the court to understand the long-term consequences of the crime on her. Also read: Restoring Public Trust in the Indian Judiciary Calls for More Scrutiny, Not LessIt can include psychological trauma suffered due to an attack and serves as a subjective assessment of the effect that trauma has had on her day-to-day life and relationships. More importantly, it undoubtedly plays an important role in humanising the victim. VIS thus allows the court to comprehend the entire gamut of ramifications of the crime on the victim. The courts can then increase the sentence on the accused based on the VIS. As a matter of principle, objections to VIS are few and far between and there exists a broad-based understanding that courtroom procedures need to be friendlier to the victim.Though many jurisdictions have embraced the VIS, there are mounting criticisms of the process. The principal criticism is that VIS can lead to disparate and discriminatory sentencing. Conversely, it gives the victims a false sense of influence over the quantum of punishment. This leads to a loss of faith in the system if these expectations are not met.Thus, in our opinion, increased jail sentences based on a VIS do not help the victim and there are tangible harms which emanate from pitting the victim’s rights against that of the accused in this context. Take the example of two victims of a random armed robbery. The first victim has pre-existing anxiety and goes into a shock due to the robbery – however, the second victim does not. The mental health of the first victim post the attack severely deteriorates, ruining her career prospects and personal relationships. The second victim, on the other hand, is able to cope with the attack and its aftermath, without any overt changes to her life. Under a VIS paradigm, the convict in the first instance will receive a harsher punishment, even though he committed the same crime, as his victim will have severely damning VIS. Nevertheless, it is inherently unfair to increase the punishment of a convict based on the coping mechanism of his victim. Moreover, a harsher punishment will not help that victim to overcome her mental health problems, which were a direct effect of the attack. This is a gaping lacuna in the current justice system. Historically, the state did not bear the responsibility of victim rehabilitation. Higher punishment for the accused was the only solace that the state provided. Research, however, shows that most victims want repair not revenge and an increased jail sentence does not solve the problem of victim rehabilitation. Alternatively, it will be myopic to throw the baby out with the bathwater because of these criticisms. Research from Canada shows that a majority of those victims who took part in VIS were more satisfied with the criminal process and it helped them receive closure. This was especially true in cases where the crime was of a serious nature, as therein victims could confront their attackers. Victim support in IndiaMoreover, the Supreme Court of India too has recognised the lack of victim support in Mallikarjun Kodagil v State of Karnataka (2018). The court noted the importance of a VIS to ensure that an appropriate punishment is meted out onto the accused. Pertinently, the court observed that a victim, depending on her specific circumstances, may need a support mechanism, so that she can be rehabilitated. This is where we believe that a VIS can be a game-changer. India, up until recently, has not had a uniform victim compensation policy. The Central Victim Compensation Fund is a small step in the right direction. It provides financial compensation to victims of rape, acid attacks, amongst other offences. A holistic VIA framework can bring a substantial improvement in the victim’s rights movement and ensures that each victim receives the support they require. The state can attempt to understand the categorical support that a victim requires through a post-conviction VIS. Some victims of serious crimes may require psychological help while others may require assistance to cover medical bills for injuries sustained. The state can then tailor rehabilitation according to their needs.The Supreme Court of India. Photo: FileAt the same time, the cathartic benefits of closure can be reached without the statement affecting the quantum of punishment on the accused. This will also ensure that the victim does not have the false expectation of an increased sentence, but receives aid from the State for rehabilitation. The last question to be answered is: why should a VIS not impact the sentence of the convict? The principled reason for this, as given in the aforesaid example, is that it is inherently unfair to punish convicts differently for the same offence. More worryingly, however, is the overwhelming evidence from the United States that shows that VIS perpetuates structural discrimination. Professor Bryan Stevenson points out that VIS disproportionately increases the quantum of sentence on Black offenders for committing the same crimes as their White counterparts. On the flip side, losses of Black families are treated in a calloused manner as compared to those of white families. In India, minorities such as Dalits, Tribals and Muslims can very well find themselves on the receiving end of harsher sentences, especially if the victims of the crimes are upper-caste Hindus.Some argue that a legislative provision for a VIS should be implemented as a check against section 235(2) of the Criminal Procedure Code 1973. Presently, by virtue of section 235(2), the accused is heard on the quantum of his sentence after conviction. It affords an opportunity to the accused to explain his circumstances such as abject poverty, or youth or other disadvantageous environs that the court ought to consider as mitigating factors at the stage of sentencing. Such comprehensive information as to the characteristics and background of the offender was ascertained to accord a just and at times, a lesser punishment.Also read: The Supreme Court’s Greatest Gift Is the PIL and It Is Here to Stay, Whatever Critics May SayHowever, this provision was not a part of the pre-1973 Code. It was in fact inserted after the recommendations of the 41st Law Commission Report, which found that the sentencing policy in India disproportionately targeted the underprivileged. Section 235(2) was inserted with the legislative intent to make the sentencing stage less discriminatory in nature. Research, however, shows that section 235(2) is routinely skipped, and the Indian death row figures revealed an overrepresentation of Muslims and Dalits. A VIS affecting sentence of the accused may very well further skew these figures.A comprehensive victim support policy would require additional resources, but it will be substantially more beneficial for the victim rights movement. Victim rehabilitation must not be swept under the rug of retribution and it is time to expect more from the criminal justice system, than a zero-sum game.Dhruv Jadhav is a criminal advocate practising at the High Court of Judicature at Bombay, and Sushant Khalkho is a penultimate year law student at the National Law School of India University, Bangalore.
