We need a state compensation fund for victims of violent crime
Whenever a violent crime like gang rape or custodial torture takes place, we are quick to demand justice for it. However, what exactly do we mean by justice? More often than not, our demands for and perception of justice only extend to ensuring punishment of the perpetrator of the crime. While that is certainly an essential component of securing justice, it is not and should not be the only aspect we focus on. The modern study of victimology stresses that focusing on the victim and addressing the harms and costs they face as a result of the crime committed against them should be an essential component of justice, yet it is something we seldom acknowledge.
Victims of violent crime should be adequately redressed for the harms suffered, as part of the justice response, such as by being granted compensation or reparation. Victims of violent crime, such as rape, torture and murder, are likely to face an array of diverse harms that punishment of the perpetrator alone does nothing to address. These harms may be physical (e.g. bruises and wounds) and mental (depression, post-traumatic stress disorder and anxiety). Seeking professional treatment for these injuries may cause the victim to incur hefty medical expenses, especially in the case of mental health services, which remain limited and costly. Severe injuries resulting from the crime may lead to the victim losing employment, causing a loss of earnings and inability to care for dependents.
Even where our laws have sought to introduce compensation for victims of violent crimes, the possibility of receiving compensation was made dependent on the possibility of securing a criminal conviction of the perpetrator. For instance, the Women and Children Repression Prevention Act 2000, the Acid Control Act 2002, the Prevention of Torture and Custodial Death Act 2013 and the Child Marriage Restraint Act 2017, etc. all introduced provisions relating to compensating the victim of the offence. However, under these provisions, a court is given the discretion or duty to convert a sentence of fine (which goes to the state treasury) into an award of compensation (which would go to the victim). These provisions only served the purpose of reiteration as criminal courts already had the power to convert fines into awards of compensation under section 545(b) of the Code of Criminal Procedure 1898.
Making the possibility of receiving compensation dependent on the possibility of securing a criminal conviction of the perpetrator, and linking it with the fines imposed on the perpetrator, is limiting for three main reasons.
Firstly, securing a conviction in a criminal court itself remains a daunting and improbable task. For instance, a 2015 study by BRAC University found that the conviction rates in the cases disposed by the Women and Children Repression Prevention tribunals in three districts was less than one percent.
Secondly, even if the victim manages to secure a conviction, the amount of compensation is likely to be inadequate since it depends on the amount of fine—which is typically nominal and limited. For instance, the maximum amount of fine (and therefore compensation) under the Child Marriage Restraint Act 2017 is Tk one lakh, while the Prevention of Torture and Custodial Death Act 2013 prescribes only Tk 25,000 as compensation for custodial torture, and Tk two lakh for custodial death. Additionally, according to a 2020 study by BLAST, the average amount of fine imposed by the Court in rape cases was around Tk 28,000.
Thirdly, if award of compensation from the order of fine is subject to judicial discretion, as it is under the Women and Children Repression Prevention Act 2000, this further reduces the victim's chances of receiving compensation. For instance, the 2020 study by BLAST also found that although the Court imposed fines on convicted rapists in 100 percent of the cases (since fine is mandatory for rape), the judge converted the fine into compensation and awarded it to the victim/survivor in less than seven percent of the cases.
Fourthly, securing a criminal conviction may take years, if not decades, while victims of violent crime require monetary relief immediately due to the costs associated with the crime.
Therefore, it is clear that for victims of violent crime to receive compensation, an alternative is needed. In 2007, the Law Commission noted the inadequacy of the existing laws to provide redress to victims of violent crime and proposed a draft law named Crime Victims Compensation Act to fill this void. Due to the concerns and challenges outlined above, compensation schemes for victims of violent crime have been introduced in many countries across the world.
The draft law primarily obliges the state to create a Crime Victims Compensation Fund in each district, from which victims of a closed list of violent offences (including rape) can apply for compensation as a matter of right. This closed list of offences includes: murder, culpable homicide not amounting to murder, causing death by rash or negligent driving or riding on a public road, attempt to murder, voluntarily causing grievous hurt, causing death or grievous hurt by means of corrosive substance, kidnapping, abduction, rape, extortion, robbery, dacoity, and offences under the Women and Children Repression Prevention Act 2000.
The fund is to be managed by a Victim Services Committee (VSC), which would have to be established in the office of the District and Sessions Judge in every district and supervised by the Ministry of Law, Justice and Parliamentary Affairs. Every application for compensation is to be heard by the Committee, which will decide not only whether to grant compensation, but also the amount and the mode in which it is to be paid (i.e. lump sum or periodic payments).
In determining the amount of compensation, the Victim Services Committee must take into account a number of factors. These include expenses actually and reasonably incurred as a result of the personal injury or death of the victim, by the victim or his dependents; loss of earning power as a result of the victim's total or partial incapacity; economic loss to the deceased victim's dependents; lost wages or loss of support; medical, funeral and burial costs; the need for financial aid; and any other relevant matters. Most importantly, the award of compensation is to be made independently of apprehension, prosecution or conviction of the alleged perpetrator. The draft law also clarifies that the award of compensation is not to be seen as a price of compromise between the parties, as it often is in our country, even in the case of non-compoundable offences.
The financing of the fund remains somewhat vague, as the draft law lays down government contributions to the fund as one of only two mandatory sources of financing, but does not specify which branch of government would have to budget for this. The other mandatory source is the money recovered from all fines, amount of forfeited bail bonds, and penalties that can be realised from those convicted of the list of violent offences covered by the Act. Optional sources of funding include: voluntary contributions, donations or grants from any individual or organisation, and any other source.
As we celebrate our miraculous economic growth and transition into a middle income country, it is essential that we reinvest some of the country's wealth in activating the Crime Victims Compensation Fund proposed by the Law Commission back in 2007, so victims of violent crimes are able to get the monetary relief they deserve as a matter of right.
Taqbir Huda is the Advocacy Lead at GJD, BRAC. Email: [email protected]