Why victim and witness protection mechanism is imperative

Communal violence on 15 July 2022 in Narail left many homeless. Victims from marginalised communities are often fearful of taking legal steps, fearing for their lives and further attacks.

There is a famous quote which is, "The enemy doesn't stand a chance when the victim decides to survive" – this brings us to how the victims are protected is pivotal for the victim's survival and administration of justice, especially when the victim belongs to a marginalised or minority community. 

The protection of victims is crucial to push forward the notion of victims' rehabilitation and victims' rights. If the question is asked how the victims from marginalised communities, or victims in general, have been protected so far from further hostilities in Bangladesh, the answer to this remains very distressing. 

To begin with, there is no definition provided for the term 'victim,' and the opportunity costs of a lack of a legal mechanism (to protect victims and witnesses in general) are immense. 

Statutes steering criminal procedure, such as the Code of Criminal Procedure, the Evidence Act, or the Penal Code, concentrate more on the protection of the accused than the victim's protection. The first attempt to identify 'victim' was seen in 2006 in the draft bill of the Victim and Witness Protection Law, and the second and final attempt was made in 2012 through another draft bill. 

However, none of them saw the light of legislation. Special statutes such as the Women and Children Repression Prevention Act, 2000; the Acid Offence Control Act, 2002; the Prevention and Suppression of Human Trafficking Act, 2012; and the Domestic Violence Act, 2010 provide a trial on camera, safe homes for victims of crime, medical treatment and rehabilitation assistance along with protecting the identities of victims and witnesses. 

Nevertheless, they are enforceable only for particular gender-based crimes and do not safeguard the marginalised community. This creates many issues that leave the victims more vulnerable to further violence. 

First of all, victims, witnesses and their family members are threatened, and in some cases, harassed and assaulted, by the offenders and their accomplices for complaining to any law enforcement agencies. 

Due to the absence of a proper protection mechanism, victims often refuse to file any cases to inform the authorities about the crime that they were subjected to. For this reason alone, initiating a criminal case against the perpetrators, conducting a thorough investigation or inquiry, and finding corroborating evidence often seems impossible. 

According to a survey conducted by Bangladesh Police, almost 73% of victims do not inform law enforcers about the crime they are subject to. This alone illustrates how vulnerable the marginalised community is, which comprises one-sixth of the whole population of Bangladesh.  

Secondly, in sensitive cases such as sexual assault, rape or domestic violence, victims stay silent, fearing their identity will be disclosed in public. According to the report of the Bangladesh National Women Lawyers Association (BNWLA) between 2015 and 2018, they received 21,211 complaints and only 291 of them were instituted as cases, while the rest of them have been mediated or compromised. To avoid prolonged humiliation and a  bad reputation in social and professional life, victims opt for the safest route to settlement.

Thirdly, as these obstacles hinder the administration of justice, the number of repetitive victimisation and crimes soars. Offences such as assault, sexual assault, domestic violence or extortion are repeated. Recidivism is rampant in marginalised communities. 

A study conducted in 2016 by the Manusher Jonno Foundation on marginalised communities shows that 34% think their rights are violated because of the loopholes in the law, and 41% think the perpetrator committed an offence just to prove that they can break the law. 

Additionally, while criminal trials run at a snail's pace and huge amounts of pending cases burden the judiciary, the possibility of accessing justice diminishes. For instance, according to the report of the Investigative Bureau of Bangladesh Police (PIB), as of 2022, over 13,000 cases await investigation whereas the rate of completing investigation by the same agency was only 2% that year. 

Moreover, across district courts of the country, more than 3.5 million cases are pending, of which nearly 20 lakh are criminal cases. Over 7 lakh cases are waiting for trial for more than 5 years. 

Finally, often members of the law enforcement agency are the ones who commit offences. The governmental report of 2022 displays that nearly one in every 10 law enforcement agency members perpetrated a crime. So where will the victims go when the saviour turns out to be the offender?

The eight Victim Support Centers (VSC) spread across the country are the only existing infrastructure to provide intensive care for the victims. In a survey, on DMP's Victim Support Center, the victims opined that shelter, food, medical and legal assistance provided by the centre were unsatisfactory. 

In addition to the VSCs, there are 11 One Stop Crisis Centers and SIX Government Safe Homes operating in major cities. However, these are mostly focused on gender-based violence and crime; inadequate in number and not designed to take special care of the victims from marginalised communities.

There are three marginal benefits of establishing a victim protection mechanism. For one, it will be a step forward to establish restorative justice; and consequently will advocate victim reparation and community peace-keeping. Secondly, it will create a 'level playing field' between the accused and the victim. 

To date, the criminal justice system is based on the principle of 'Innocent, until proven guilty' and often, if the accused is in a position of power and influence, it hinders the realisation of a fair trial. 

Lastly, a sound Victim Protection Mechanism will let the masses know about the negative effects of victim blaming. In turn, the culture of victim blaming will diminish.

Legal scholars and criminologists have been vocalising concerns for the protection of the victims. In 1985, the United Nations General Assembly adopted a resolution mandating basic principles of justice for victims on consensus, articulating basic precautionary legal measures that state parties should take. 

Countries such as the United States, United Kingdom, Australia, Hong Kong, Germany and South Africa had established their victim and witness protection laws before the end of the previous century. Among the SAARC member states, Nepal in 2018  and  Sri Lanka in 2023 have legislated dedicated statutes for victim and witness protection. 

The Indian Rajya Sabha drafted a bill in 2020 titled Victim and Witness Protection and Assistance Bill – a consequence of the landmark judgement given in Mahendra Chawla vs Union of India.

As time and trends are shifting frequently in this digital era, the patterns of crime and the nature of criminal minds are also rapidly changing. Keeping that in mind, it is high time to legislate a victim protection law that will serve the needs of victims from marginalised communities and victims in general.

Mohammed Ashraful Bari is a freelance legal researcher and has graduated from UMSAILS-UAP Joint LLM Programme.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.