Concept of Victim

 The “victim” is derived from the latin word victima. The concept of victim is
quite ancient and is found in many cultures and is totally knotted with religious
sacrifices.

Definition of Victim

WHO IS A VICTIM?

 In India, for a very long time, there was not a comprehensive or unanimous definition
of the term “Victim” that applied uniformly in all situations.
 Within the Indian legal framework, the term victim is defined under Section 2(wa)
of the CrPC, 1973 – added in 2009.
1. as a person(citizen and non citizen)
2. who has suffered any loss or injury(Sec 44 IPC)
3. caused by reason of the act or omission(s. 32,33 IPC)
4. for which the accused person has been charged
5. and the expression victim includes his or her guardian or legal heir. (secondary
victimisation)

 This definition however suffers from glaring deficiencies.

 Firstly, that the loss or injury is not defined clearly and is subject to judicial
interpretation.

 In comparison to the Indian definition, the Directive 2012/29/EU of the European

Union defines a victim as a natural person who has suffered harm including
physical, mental or emotional harm or economic loss which was directly caused by
the criminal offence.

 It also means the family members of the person whose death was directly caused by
the criminal offence and who have suffered harm as a result of that death.
  Family member is defined so as to include – spouse, person with whom the victim
was in a committed intimate relationship, family members in direct line, the siblings
and dependents.

 The definition of victim under the UK Code of Practise for Victims of Crime 1 is in
pari materia with the EU Directive.

 The Canadian Victims Bill of Rights defines the victim as an individual who has
suffered physical or emotional harm, property damage or economic loss as a result of
the commission of the offence or the alleged commission of an offence.

 Where the victim is dead or incapable of exercising his/her rights, it allows for the
spouse, any person cohabiting with the victim in a conjugal relationship, a relative or
dependent and the legal or factual guardian of the victim, to act on behalf of the
him/her and exercise such rights as granted by the act.

 After decades of debates and discussions, experts and practitioners from all related
disciplines have zeroed in on certain principles guaranteeing justice to victims
which are sine qua non to a truly just criminal justice system without any
prejudice to the rights of the perpetrator.

 These principles gained recognition of the international community as far back as

1985 when the UN Declaration was adopted by the General Assembly.

 Any discussion on the rights of victims is incomplete without examining the meaning
of the term “victim”.

 The General Assembly of the United Nations adopted the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power (UN Victims’
Declaration) in 1985.

 Although the Declaration is not a legally binding document, its adoption is

considered as a historic leap in the international sphere for the protection of rights of
victims.

 It is the first such document which deals comprehensively with the rights of
victims and recognises their identity in judicial process. The most crucial
contribution of the Declaration is in providing a definition of the term “victim”.

 The Declaration highlights the following components in the definition of “victim”.

1
https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crime/code-of-practice-
for-victims-of-crime-in-england-and-wales-victims-code#introduction.
1. Victims are persons who have suffered harm collectively or individually.

2. Such harm should be the consequence of injury, loss or suffering which may be
physical, mental, emotional or economic or there should be substantial impairment of
their fundamental rights.

3. Such impairment must be the consequence of acts or omissions that are in violation of
Criminal Law.

 In December 2005, the United Nations adopted a set of specific guidelines for
reparation and right to remedies for victims of gross human rights violations.
 The declaration identified four such guiding principles, the phraseology of which,
while identifying the duties of the member states, points towards the recognition of
certain rights of the victims-
 (a) Principle of Access to Justice and Fair Treatment
 (b) Principle of Restitution
 (c) Principle of Compensation
 (d) Principle of Assistance.

Victim throughout the History

 When there was no existence of written laws, the codes of behaviour reflected the
prevailing social norms.

 The responsibility of dealing with the offenders was in the hands of victims or
their family members.

 There was no authority to help victims in enforcing the laws and they were supposed
to help themselves. There were certain behaviours such as murder which was
totally unacceptable to the society which was referred to as “mala in se” in those
cases too, it was up to the victims or their survivors to decide what action to take
against the offenders.

 But that doesn’t mean there was no provision or system which is to be followed by
the victims.

 Society recognized the system based on retribution and restitution.

 Retribution meant that the offender should suffer in proportion to the degree of
harm caused to the victims because of the actions.
 Restitution meant to repay the amount sufficient to keep the victim back in the
same position. Sometimes, the restitution replaces retribution and sometimes, if the
offender was unable to restitute the victim, then his or her family member was forced
to take over the liability. “Lex talionis” an eye for an eye, a tooth for a tooth was the
principle on which the system was based.

 Punishment was equivalent to the harm caused to the victim. Infact, the most
important feature of this system was that the victims or his/her family members were
at the focus and they were actually the beneficiaries of any payments. This
arrangement was actually a “victim justice system”.

 Over a period of time, this system found its way into early codified laws such as
the Law of Moses, the Code of Hammurabi, Roma Law and Manusmriti.

 All the codes emphasized on the responsibility of the individual for causing harm.
Restitution, retribution along with deterrence was the Key ingredients in many
of these codes.

 The main goal of deterrence was to prevent such future wrongs or deviance.
Restitution and retribution attempted to re-establish the status of the victim existed
before the offender’s action same as used in lex talionis principle.

 Eventually, this system of dealing with the offenders and giving preference to victims
fell into disuse. The first change was observed when feudal barons started claiming
the compensation paid to the victims by the offenders. (Schafer, 1968)

 They saw this money as an easy way to increase their own wealth. In order to claim
compensation legally, the barons gave a new definition of criminal acts as
violations against the State rather than against the victim.

 This move made the State as an aggrieved party, hence, depreciating the status of
victim as mere witness only.

 The second change was the society’s transformation which reduced the position
of victim.

 During the rural and agrarian society, people used to live in small groups and
struggled to meet day to day needs by doing labour in the fields daily. The people
were dependent on their family for assistance; hence, whenever a crime took place, it
brought harm not only to the individual victim but also to entire family. This type of
society (gameinschaft) relied on the individuals to handle their problems.
  As we moved towards the middle ages, the Industrial revolution leads to heavy
migration of people from rural fields to take jobs in industries. This relocation
created a demand for large urbanized communities forcing people to share small
spaces totally surrounded by strangers. There was less recognition with people living
in neighbours. The relationships grew more depersonalized as the faces blended
into crowds. The interpersonal ties got vanished. As this type of society (gesellschaft)
continue to grow, the old victim practices withered away further.

 The concern was shifted from making the victim deal with the criminal to leave
everything on the State.

 Gradually the criminal justice system replaced the victim justice system. Hence,
victims could no longer take matters in their hands to extract retribution and
restitution; rather they were compelled to call upon society to act.

Social Construction & Deconstruction of Victims

 There was a confusion while defining the victim whether it can be termed as a label
or stereotype or conditions or a self perception or social construction etc.

 Hence, Quinney (1972) suggested that victim is nothing but a social construction
which keeps on changing with the time and societal perception depending on their
wisdom towards the understanding of any issue.

 In every society, there is a continuous process of construction and deconstruction of

victim’s ideology.

 For example, the practice of witch hunting used to label the witches as being
criminal and dangerous which over a period of time defined those witches as
victims of witch hunts.

 Domestic violence was once upon a time an acceptable feature in the society and
the women subjected to violence didn’t assign the victim status.

 Sati, widow remarriage, child marriage are such examples of social construction of
victims. (Fattah, 2010)

Re-emergence of the Victim

 Gradually diverted criminal justice system spends much of its time trying to control
and study criminals.
 While understanding the criminal activities and searching for the reasons behind
criminal behaviour, the victims were revived in 1940s.
  The 1940s saw the advent of victimology. The researchers began to look at the
relationship between the victim and the offender in order to understand the genesis
of criminal act better.

 Interestingly, the victims emerged as a possible partner or contributor to the

criminal act not a sympathetic person who needs help from the justice system.

 The need to understand the dynamics which leads one to become victim and other an
offender began to attract more scholarly attention.

 Hence early victimological work concentrated mainly on categorizing different

types of victims or victim typologies.

 Benjamin Mendelsohn and Hans Von Hentig were the two pioneer victimologists
who developed victim typologies, which created a base for others to further study the
victims.

Benjamin Mendelsohn(1900–1998)

 He was an Israeli criminal law scholar who coined the term victimology in a paper
presentation in Bucharest, Romania, in 1947 and used it in a paper entitled “A New
Branch of Bio-Psycho-Social Science: Victimology” in 1946 (Mendelsohn, 1963; The
Victimologist, 1998).

 As a criminal defense lawyer, Mendelsohn, like many victimologists of the day, was
interested in understanding how victims’ actions contributed to criminal activity

 He proposed that this should be an entirely new field of study instead of merely a
branch in criminology.

 He was a practicing attorney and in order to prepare a case for trial, he used to
conduct in-depth interviews of victims, witnesses, accused by-standers and all
who had knowledge of the crime. (Mendelsohn, 1963)

 The questionnaire developed for conducting interviews contained approximately 300

questions concerning the branches of criminology and allied sciences.

 On the basis of these studies, Mendelsohn came to the conclusion that there was a
strong interpersonal relationship between the offender and the victim and most
of the victims unconsciously participate in their own victimization.

 Mendelsohn’s (1940, 1974) original formulation classified victims according to their

relative degree of responsibility and power to control or affect the situations.
Level of Victim Culpability Examples
1. Completely Innocent: An individual killed while sleeping at home
2. Victim With Minor Guilt : An individual robbed after displaying money
3. Victim as Guilty as Offender : An individual killed during a drug transaction
4. Victim More Guilty than Offender : An individual killed after initiating a physical
altercation
5. Most Guilty Victim : An individual killed while committing a robbery
6. Imaginary Victim : An individual who pretends that he/she was victimized.

Read Victim Typology for other victimologists- E Pathshala