Abstract

In 1995, the Supreme Court while deciding the ShriBodhisattwaGautamv. MissSubhraChakrabortycase,observed that it was essential to set up a victim compensation board. It was needed for the financial rehabilitation of the rape victims,as the court believed that a rape victim not only suffers from mental and physical anguish but also from financial losses. This board as envisaged by the apex court would not only look for compensating the victims for the serious violations of the victim’s fundamental rights but will also provide the victims with financial rehabilitation. It is a step necessary to make them financially independent.

Though the National Commission for Women (NCW) came up with a scheme for the purpose of victim compensation by 1995 itself, the government took no action on it for the next 10 years. In both years, 2005 and 2010, revised schemes were created by the NCW but they were too not implemented by the respective governments. Due to the massive outcry and protests post the Nirbhaya gang rape case this scheme was taken up by the government and in 2013 the government finally began the implementation of this scheme along with the release of funds.

This paper will look at the development of this scheme of victim compensation and rehabilitation. It will critically analyze the joint state-central government effort to implement this new scheme post the Nirbhaya case. The paper will also compare the current scenario in India with other countries all over the world which are known for their efficient victim compensation mechanisms. Furthermore, the paper will look at the relatively unexplored angle of rehabilitation of child and male rape victims, considering that they face unique psychological and social problems in dealing with their trauma.

Keyword: victim compensation, rehabilitation, critical analysis, scheme, rape, government

1.     Introduction

The Code of Criminal Procedure (CrPC) (Amendment) Act, 2008 which was passed in 2009 inserted an addition to the Section 357 of the CrPC.  The newly inserted part A of the Section357 outlined the foundations for the development of a Victim Compensation Scheme to help the victims of crimes and their dependents.[1]

The source of these schemes for compensating the victims of crime finds its roots in the constitution. Article 21 of the Indian Constitution which deals with the Right to Life says that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”In the landmark judgment of S.S Ahluwalia v. Union of India[2] the Hon’bleSupreme Court expanded the interpretation of Article 21 by saying that where the State fails to protect the life of the people, it could not escape the liability to pay compensation to the victims. As the crime of rape is partly the result of the government’s inability to protect its citizen. Hence the government can be held accountable for the suffering of the victims.

In times of war and peace, women’s human rights are violated often and systematically[3]. Rape or for that matter sexual assaults of any sort are specifically relevant in this situation as they cause an extreme amount of both mental and physical trauma to the victim. Often they end up leaving both emotional and physical scars on the victim. It is due to these effects, rapes are provided a great amount of attention from both the media and the legal fraternity. Furthermore, the victim has to endure social ostracism and many a times face problems even in their professions.[4]

This paper will not only limit itself to compensation and rehabilitation schemes for female victims but also take a look at the need for special measures which are required with regard to male and child victims of rapes. Male and child rape victims both face unique problems. Hence a new scheme of rehabilitation distinct from that used for female victims will be required.

2.     Compensation scheme in India: An analysis

In the 1994 case of Delhi Domestic Working Women’s Forum[5], the Hon’ble Supreme court  laid down in accordance with Directive Principles of State Policy under article 38(1) of the constitution of India “a criminal injuries board should be set up to provide compensation to help the victim financially as the victim incurs significant financial losses”.  The Hon’ble Supreme Court also observed that apart from the accused being asked to give compensation to the victim after his conviction, the board should also provide assistance to the victim without any prior condition of conviction. This was again emphasized in the case of ShriBodhisattwaGautamv. SubbraChakraborty[6]in 1995. The NCW was asked to represent a scheme in front of the government to deal with the rape victims. In 1995, the NCW drafted the scheme and forwarded it to the Central government for recommendation. The committee of secretaries recommended some measures in this regard. The committee focused on the need for a planned scheme for disbursing the compensation to the victims of rape, the quantum of compensation should be decided in consultation with the NCW and many other suggestions about requirement of funds, setting up of District level committees headed by district magistrate and also setting up of a criminal injuries compensation board were discussed about.

Then a revised scheme was drafted named “Scheme For Relief And Rehabilitation of Victims Of Rape 2005”[7]with certain principles and rules and with the board known as criminal injuries relief and rehabilitation board. It states upon the notification of the scheme there should be a district criminal injuries relief and rehabilitation board and that this board has exclusive jurisdiction in that district. This scheme was sent for further revision and was finally redrafted and sent to the ministry.

2.1.Analysis of the scheme

As per the Section. 357A of the CrPC 1973 (amendment in 2009) it was laid down that every state government in co-ordination with the central government shall prepare a scheme for providing funds for the purpose of rehabilitation to the victim or his dependents who have suffered loss or injury as a result of crime. Even who require rehabilitation also as per the notice, the state or the distinct legal services authority may order for first aid facility or medical benefits to be made available free of cost on the orders of a police officer not below the rank of the officer in charge of a police station or a magistrate concerned, or any other interim relief as per the appropriate authority deems fit.(Inserted by the CrPC (Amendment) Act 2008).

2.2.As per the revised scheme of 2010:

The scheme may be called as the “Schemefor Compensation and Rehabilitation of Rape Victims”[8] and is applicable to the whole of India enforced on the date when it comes into the official gazette of India. The scheme stated that there shall be a Criminal Injuries Compensation Boardin every district as well as in every state in the country.

2.2.1.      District Board for Criminal Injuries Relief and Rehabilitation

The district board allows complaints under the scheme at the district level. As per the scheme there should be a district level board in every district. The board provides help to rape victims in innumerable ways. The board also provides financial help to all rape victims as prescribed by the scheme and it can also use any other scheme available there by the state or central government. The board will also have to perform the directed instruction by the state or national board in that case or deemed fit in that situation.

The compensation amount is Rs.2 lac according to the scheme, provided that the case does not fall under clause 16 of the scheme as compensation, as in the case of clause 16 the compensation may be exceed to sum of a 3 lac. The board can also make provisions for rehabilitation of the victims.

Clause 16 allows the state board with the prior consultation with the national board to grant special relief in certain cases and the compensation amount can be increased to Rs 3 lakhs. The cases in which offences against children who are less than 13 years of age or offences against mentally challenged or handicapped children which may involve specialized treatment care and cases where victims gets pregnant due to rape and delivers the child , the amount of compensation can be increased to sum of Rs. 3lakhs.[9]

The district board can also provide an interim relief of Rs. 20,000 which can be extended upto the maximum of Rs 50,000 towards the rehabilitation of the victim. The board can provide a balance amount of relief up to Rs. 1.5 lakhs as final installment within a period of one month from the date on which the prosecutrix gives her evidence in the criminal trial or within one year from the date of receipt of the application in cases where the recording of the evidence has been unduly delayed for reasons beyond the control of prosecutrix. If the board has awarded the relief before the recording of the evidence of the prosecutrix, the board will have to specify the reasons in writing for doing so along with the reasons for delay in recording the evidence. The board shall keep the best interests of the victim in mind at all times.

The board can also the reject the claims where it considers that the application failed to make, without delay, all reasonable steps to inform the police. If the applicant failed to cooperate with the police or court proceedings in bringing the accused or applicant to justice. The board rejects the application of compensation in cases where elopement of girls above 16 years of age or where a prima facie case of rape is not made but waits for the outcome of thetrial before disbursing any compensation.

The amount of compensation varies from case to cases. The amount of compensation in casesof death as a consequence of rape:

2.2.2.      State board

The major function of the state board is to monitor and co- ordinate the function of the district board. The board also looks after the proper disbursement of funds allocated by the central government and additional amount supplemented by state government to district board.  The board can also entertain the appeal from the district board and also can grant the compensation of Rs. 3 lakhs after consultation with the national board.

2.2.3.      National Board for Criminal Injuries Relief and Rehabilitation

The national board for criminal injuries and relief and rehabilitation was constituted under the NCW. The NCW president is the chairman of the board along with five other members .The national board shall administer the scheme and lay down the policies effective for implementation of the scheme. The national board shall also review the scheme from time to time and advices the government for the quantum payable and other reliefs provided under the scheme.[10] The board administers and allocates funds to the state boards and also estimates the requirements of funds and budget. The board also frames and issues guideline for the rehabilitation of victims with consultation with the state and central government. The board also has the power to inquire about a case suomotu. The Centre government provides with the budgetary requirement for the proper implementation of the scheme.

The application made under this scheme will be in addition to any application that may be made under section 357/357A of the code of criminal procedure.[11]

2.3.Initiative by Ministry of Home Affairs (MHA) to support this scheme

As per the press release by MHA, the order of 14 October 2015, the MHA has introduced a scheme called the Central Victim Compensation Fund with an initial corpus of Rs 200 crores. This scheme will support the existing victim compensation scheme notified by state /union territories. The major aim of this scheme is to encourage the state/union territories to effectively implement the victim compensation scheme notified by them under provision 357A of CrPC and continue financial support to the victims of various crimes. All states have been requested to suitably modify their respective schemes and reduce disparity in quantum of compensation and can claim financial support from the central victim compensation fund scheme. The scheme would provide the state all the financial help if they provide the compensation sum subjected to Rs. 3 lakhs asin the cases dealing with rape.[12]

3.     The Child Victim: A Major Concern

As mentioned before every rape victim faces a unique set of problems and damage due to the pain inflicted on them by the rapist. For child victims of rape the primary issue is the fact that most children are unable to understand what exactly has happened to them. A major issue hence is the fact that a number of person who suffered rape in their childhood don’t realize the magnitude of the injury caused until they become adults. This of course leads to the development of high levels of stress and other psychological problems later in life.

Child rape victims suffer from conditions which are quite similar in their nature to Post Traumatic Stress Disorder (PTSD), a condition which is usually seen in war veterans. The reason that child rape deserves a special category of its own and it deserves more attention is that these stress disorders cause victims of child rape to suffer from disproportionately higher rates of insomnia, suicide, self-esteem issues crime. A study commissioned by the USA National institute of drug abuse found that victims of child sexual abuse are much more likely to suffer from alcohol and drug dependence. The same study also showed that victims of sexual abuse in the form of intercourse were three times more likely to suffer from major depression in later life as compared to children who had not suffered from childhood abuse[13]. Another study showed that in 90% of the cases the offender was known to the victim.[14]

This trend is seen throughout the globe as data from a number of countries supports the fact that sexual offences against children are primarily committed by people known to the victim as the position of trust creates a potential for the offenders to gain access to the victim. Other studies point towards the fact that the psychological effects of childhood sexual assault are more pronounced in those individuals who suffered these assaults over a long period of time of approximately one year and who were abused by close family relations.

It must be noted however that in many cases the relationship between crime and child sexual abuse might not be direct but are instead a result of the assault. That is to say a child rape victim does not just wake one day and commits a crime, but instead he or she becomes more prone to doing things which have a high amount of risk and negative consequences attached to them such as running away from home or joining street gangs( to improve their sense of control).

In the United States, a sample survey found out that 76% of male serial rapists claimed to have undergone sexual abuse as children themselves[15]. Similarly for serial killers too this conclusion holds true, around half of all the incarcerated serial killers also claimed to have been physically or sexually assaulted as children.

The flipside to the higher rates of crimes in which victims of childhood sexual assault are involved is that these victims are also more likely to suffer from further abuse and victimization. This process has been formally dubbed as re-victimization (victims of crime book).

From the point of view of rehabilitation hence this re-victimization of previous rape victims gains more importance. Essentially it refers to a heightened risk of a previous victim of sexual assault of being victimized again. The reasons for this heightened risk are primarily two fold- the victim comes to perceive this abuse as “normal” or a part of their fate, also a sense of survival in the victim leads him or her to accept any further assaults in order to survive[16].

4.     Policies for Rehabilitation in different countries: A comparative Analysis

This portion of the paper deals with the comparative rehabilitation strategies used by various countries to help victims of child rape survive the trauma they have suffered. As mentioned before, the aim of rehabilitation of child rape victims is to ensure that they don’t develop any post-traumatic stress conditions and that they don’t undergo re-victimization and expose themselves to greater harm again.[17]

4.1.India

The laws in India are still growing for sexual assaults and rape. The ground reality is that child sexual abuse is rampant in India; hence it is high time that laws dealing with it are put into place. Around 53% of children have faced sexual abuse in some form according to a report by the Women and Child Development Minister. The trend depicts that in approximately 50% of the cases the abuser was in a relationship of trust with the victim[18].

Currently, the Indian Constitution recognizes various crimes against children that are linked to their sexual abuse – The Immoral Traffic (Prevention) Act that protects children below the age of 16 from being used for the purposes of commercial sex. The Juvenile Justice Act Section 26 (Exploitation of Juvenile or Child Employee) provides for punishment if a person procures a juvenile for hazardous employment. The Prohibition of Child Marriage Act also makes punishable the practice of marrying girls under the age of 18 and boys under the age of 21.

Recently the Protection of Children from Sexual Offenses Act, 2012 (POCSO) has been passed in the parliament according to which even immodesty in the presence of a child maybe defined as a sexual abuse. Furthermore it also initiates procedural reforms as it seeks to provide a more comfortable environment in which the child can be made a part of the criminal proceedings.[19] Of course as is clear from the title of the Act itself, the Act does not really talk about rehabilitation of the victim apart from providing a safe and comfortable courtroom in which the child can participate in the judicial process. Beyond that it does talk about long term psychological counseling for the children or any other form of post incident care. Hence from a rehabilitation and compensation point of view the act does not change much.  

4.2.The United Kingdom

In the United Kingdom a system to provide financial compensation to victims of child rape is already in existence. This compensation is available both to children and to those adults who have suffered from sexual abuse as children. Victims of rape can receive compensation by suing their abusers or the organization who failed a duty of care which they owed to the victims. There is also the recourse of seeking compensation from the criminal injuries compensation board which is available to the victim. In case the abuser is found to be guilty in a criminal case even then the court can decide to award the victim compensation. Of course the victim has to in such circumstances prove that he or she had suffered from financial damage due to the incident. The amount of compensation will depend on what the offender can afford to pay, but the maximum is £5,000. If a criminal compensation order is made, the court will be responsible for making sure the offender pays.
In case the victim can no longer trace their abuser or if they had been unable to report the incident to the police they may still approach the Criminal Injuries Compensation Authority. In this case the abuser need not have been convicted or even charged of the crime and the victim just needs to prove that they had suffered from sexual assault. An application must normally be made within two years of the incident, though this time limit may be exceeded if the victim was a child at the time of the incident[20].

4.3.Sweden

Sweden has a fairly wide approachin dealing with cases of child sexual abuse. The system in usage not only deals with the rehabilitation of the victim but also tries to treat/improve the abuser. It has already been mentioned that the perpetrators of child abuse frequently have mental conditions of their own because of which they commit these crimes.

In Sweden a concept called the Children’s House is in common usage. The Children´s House is a joint work collaboration including the prosecutor, the police, the social services, a medico-legal expert/ pediatrician and the child psychiatric care. The idea is that children and young people who are supposed to have been subjected to sexual abuse and/or other violence or privacy violation should only have to go to one single place, which should be experienced to the greatest possible extent as welcoming and secure. When a report of violence and/or sexual abuse has been registered by the police or the social services, the case is brought up at the Children’s House. The goal of these centers is to prevent the physical and mental injuries inflicted upon the child from damaging the child’s further development. In contrast to the British approach the Swedish methods of providing rehabilitation to children works much better than the British. Firstly, because it focuses on making the child feel safe during both the investigation and the rehabilitation phase.

5.     Recommendations/ Suggestions

A look at the various rehabilitation and compensation strategies which are present across the globe show to us that India has to go a long way in developing its own policies to deal with child sexual abuse. In the Indian context one question which holds importance is whether a particular scheme is justified in terms of its financial cost. It has clearly been established that sexual abuse of children has wide ranging consequences. The victims suffer from higher than usual rates of mental conditions and furthermore they are more prone to committing crimes.[21] Hence rehabilitating victims of child sexual abuse is about more than helping or providing justice to the victims themselves, it is a necessity for the wholesome development of society itself.

First of all there is a need for a comprehensive strategy to be put into place by the central government to provide for long term care and observation of child sexual abuse victims. Financial compensation should also be put into place but it should not be the priority. The reason for this is that child sexual abuse victims are often not affected in the short term by what happened to them, they suffer from the real impact when they reach an age where they can realize the magnitude of what they have undergone. The idea of the Swedish Children’s house serves as an ideal example of how a one stop center for child rape victims should function and can be used to change lives and transform. Such a center should also be monitored by both the police and child care authorities as the Centre may house children of different ages and the younger children also need to be provided with protection from the elder ones. In cases where children from poorer families are involved there is more urgent need for financial compensation to be provided as otherwise the family may feel that it is more important for the child to work rather than send him or her to the counseling sessions. On a parallel level the number of and the quality of child psychologists needs to be improved; a number of mental conditions later in life are the result of certain experiences in childhood.

While thePOCSO, 2012 act has been a right step forward, its vision and goals are slightly outdated. The act has prevention in its name itself, the problem with such a vision is that it will take decades to bring the cases of child sexual abuse down to a negligible number. As people who are closely related to the child are involved in these cases we cannot really prevent them always. Hence we should focus on making laws for victim rehabilitation first and slowly we can reduce this problem to no offenders relating to sexual misconduct.

[1] Code of Criminal Procedure (CrPC) (Amendment) Act, 2008, No. 5 of 2009, Acts of Parliament, 2009, s.357A.

[2]S.S Ahluwalia v. Union of India, (2001) 4 SCC 452.

[3]Julie Peters Et.Al., Women Rights : Human Rights – International Feminist Perspectives 1,  (Routledge, 1995).

[4]I.K. Magoo, Law Relating to Sexual offences and Homosexuality in India, (Capital Law House, 2006).

[5]Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.

[6]Shri Bodhisattwa Gautam v. Subbra Chakraborty, AIR 1996 SC 922.

[7]Scheme For Relief And Rehabilitation of Victims Of Rape 2005: Annexure VI, Annual Report 2007-08, http://ncwapps.nic.in/AnnualReports/200708/Eng/Annexure6.pdf.

[8]RevisedScheme For Relief And Rehabilitation of Victims Of Rape 2010, http://megpolice.gov.in/sites/default/files/Scheme_Rape_Victim.pdf.

[9]Id.

[10]Id.

[11] Code of Criminal Procedure (CrPC) (Amendment) Act, 2008, No. 5 of 2009, Acts of Parliament, 2009, s. 357A.

[12]Ministry of Home Affairs, Central Victim Compensation Fund Scheme (CVCF) Guidelines, Government of IndiaNo. 24013/Misc./2014-CSR.III (2015), http://uphome.gov.in/writereaddata/Portal/Images/CVCF.PDF.

[13] Patrick Zickler, Childhood sex abuse increases risk for drug dependence in adult women, National Institute of Drug Abuse (Apr., 2002),   

https://archives.drugabuse.gov/news-events/nida-notes/2002/04/childhood-sex-abuse-increases-risk-drug-dependence-in-adult-women.

[14]Julia Whealin, Child Sexual Abuse”. National Center for Post-Traumatic Stress Disorder, US Department of Veterans Affairs (May, 2007)http://www.ptsd.vs.gov/public/pages/child-sexual-abuse.asp.

[15] Boney Mc Coy & Finkelhor,Physcosocial sequence of violent victimization in a national youth sample, journal of consulting and clinical phscology, J Consult Clin Psychol. 726-736(1995).

[16]Messman Terri L. & Long Patricia J., Child Sexual Abuse and its Relationship to Re-victimization in Adult Women,Clinical Psychology Review 397–420 (1996).

[17]Robert C. Davis , Artjur J. Lurigio and Susan Aerman, Victims of Crime, (Sage Publication, 2013).

[18]HavoviWadia, The sounds of silence: Child sexual abuse in India, Info Change India (March, 2011)

http://infochangeindia.org/children/analysis/the-sounds-of-silence-child-sexual-abuse-in-india.html.

[19]Dr. Vandana, Sexual Violence against Women : Penal Law and Human Rights Perspectives (LexixNexis Butterworths Wadhwa, 2009).

[20]Financial compensation for child abuse, Citizens Advice,

https://www.citizensadvice.org.uk/relationships/children-and-young-people/child-abuse/financial-compensation-for-child-abuse/.

[21]Sandra Walklate , Gender, Crime and Criminal Justice, (Lawman ( India) Private Limited, New Delhi, 2003).