Global Advances in Victimology and Psychological Studies, 1(1) : 39-47; 2022

Online ISSN: Applied For

Global Advances in Victimology and

Psychological Studies

Nitish Rai Parwani

MSc Criminology and Criminal Justice, University of Oxford, United Kingdom; nitishraiparwani96@gmail.com

Directory Right or Mandatory Obligation to Participate:

Psycho-Legal Dimensions of Victim-Person’s Participation in

Criminal Justice System

1. Introduction

N A crime is a wrong against: an individual, a fundamental

social-value or an institution (Ashworth & Horder, 2013).

While it is clear that the commissioner of this wrong

would be the defendant-party in a criminal-trial; albeit the

person who experienced the wrong may not necessarily

become the second or the prosecuting party. In most of

the criminal justice systems [‘CJS’, for short], the state

assumes the authority- deriving from the theory of social

contract- to prosecute. is prerogative of the state, when

extrapolated, leads to a jurisprudential question that the

accused is the “oender of whom”? Some jurists argue that

he is the “victim’s oender” (Erez & Roberts, 2007) and

the injured party should lead the case against the oender

in the court; while the collectivists and supporters of

social contract would argue that the oender belongs to

the state, and victim-person’s role is to assist the state in

prosecuting the oender.

e Weberian social-contract argument labels the

state’s agency of prosecution as a role to take revenge for

the act of deviation from the norm set by “community

agreement”; and the compensation for the injured

Research Article

Abstract

A crime is a wrong against the society and hence the state, acting under the social contract, prosecutes the accused. The

injured or the victim person, while being entitled to some rights, is expected to act as a star witness in the trial. This paper

analyses the role of the victim person in a criminal trial, and puts forward arguments rooted in legal philosophy, com-

parative law, psychology and sociology to argue that---though the victim's participation is necessary ascertaining 'harm

element' of an offence and that victim is entitled to participatory rights including recording of Victim Impact Statement

(VIS), Opinion statement and restorative justice negotiations--the participation of the victim person should be a directory

right with an option of waiver, rather than a mandatory obligation to participate.

Keywords: Psycho-legal Dynamics of Victim Participation, Soft and Hard Victim Participation, Victim's Participation,

Victim Impact Statement (VIS), Victimhood of State and Injured Person

Directory Right or Mandatory Obligation to Participate: Psycho-Legal Dimensions of Victim-Person’s Participation ...

Global Advances in Victimology and Psychological StudiesVol 1 (1) | June 2022 |

person’s participation in CJS may also be varied. In the

classication by Chalmers, et al (2007) and Ashworth

(1993), it could either be ‘so participation’, where the

victim-person makes an impact statement- expressing

his experience of the oensive act, and the judge balances

other records to arrive at judgment. Or, it could be ‘hard

victim participation’ where the victim-person makes a

direct ‘opinion-statement’ on the liability and appropriate

sentence for the accused. In this essay, we would analyse

two models which crystalise the concept of victim

participation, that is, Victim Impact Statement [‘VIS’,

for short] and Restorative Justice, to understand these

participation characteristics. Also, while the participation

may be recognised as a ‘right’, several victim-persons

may wish to abstain from participating (Kelly, 1984)-for

scores of reasons discussed later. Since a ‘right’ inherently

includes within itself right not to exercise the right i.e.,

right of waiver (Gibbard, 1974; Basu, 1984), this essay

would also discuss and distinguish the directory and

mandatory nature of victim-person’s participation rights.

Afore-discussed general landscape of victim-person’s

participation in CJSex-facie indicates that there are

multi-fold and multi-facet issues of this elephant in the

room. To explore these issues, this essay is divided into

three broad sections. e rst section would decipher

the necessity and legitimacy of the participation of the

victim person in CJS, with the lens of legality. e second

section would deal with the psycho-legal understanding

of victim-person’s participation. And, the third section

would briey present the concluding remarks by perusing

the afore-discussed dynamics in practice.

2. Necessity and Legitimacy for

Participation of Victim-Person

Generally, a criminal trial has two broad stages, rst the

determination of liability or establishing the charge; and

second, arriving at the operative part of the judgment

including sentence and restitution-rehabilitation plan.

While the criminal liability or culpability is xed by the court

on the basis of the prescribed legal-statutory ingredients

individual as a by-product of this process. (Mueller,

1955). In fact, in some wrongs like war, racism, and

colonialism, the injured individual is not even conferred

the status of a victim, as the status could not be granted

without challenging the status-quo of the state (Elias,

1986). Pertinently, in several criminal jurisdictions, as

we would observe later in this essay, the ambiguity on

victimhood was systematically perpetuated, and even the

word ‘victim’ was not dened in their statute books until

very recently. Wherefore, in the traditional prosecution-

defence dichotomy based CJS model, the state derives the

character and colour of victim-hood out of the ‘social-

contract’, and the role of the ‘injured-individual’ is oen

narrowed down. In order to appreciate and academically

distinguish between the de-jure victimhood of the state

and de-facto victimhood of the injured person, this paper

has used the connotation ‘victim-person’1 for the latter

instead of ‘victim’ simpliciter.

While the victim-person, ideally, is entitled to a

spectrum of rights, including the rights of protection,

(interim-)compensation, and rehabilitation; the state

recognises these rights not merely out of benevolence,

or with a view of rectifying or compensating the wrongs

done to them (Cannavele, 1975); albeit these rights are also

extended to the victims to ‘win’ their cooperation towards

the criminal justice machinery of the state. In conventional

common law CJS, the persona of the victim-person and

the prosecution (state) is merged as ‘legal-victim’; and

therefore, the state expects the victim-person to cooperate

with the state in the criminal justice process, and coincide

with state’s prosecution concerns. is means that the state

wants the participation-but, notably, limited participation-

of the victim-person; not solely for her interest but for the

interest of the state. Wherefore, some rights are conferred

upon the victim-persons as a token of acknowledgment

for their presence and cooperation with the state’s CJS. In

this essay, we would attempt to examine the legitimacy of

this expectation of ‘state-determined’ participation of the

victim-person in the CJS.

While appreciating the nature and scope of

participatory rights, we nd that the nature of victim-

1The word ‘person’ includes singular, plural, juristic and natural persons. Further, the word ‘victim-person’ would include the

injured person(s) and their guardian or legal-heir.

Nitish Rai Parwani

Global Advances in Victimology and Psychological Studies 41

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constituting the oence; in several oences, there is a

judicial discretion involved at the stage of sentencing. A

judge exercises this discretion by perusing several factors

including severity of the oence, the perception of the

society on the severity of the crime, the harm experienced

by the victim, and possibility of reformation of the convict,

et al. In other words, culpability is xed by the objective

‘yardstick-of-wrong’, while the elements of subjective

‘yardsticks-of-harm-and-perception’ are involved at the

stage of sentencing. (Pemberton, 2014). e state may

express the juxtaposition of the severity involved in the

crime with the dimensions of ‘yardstick of wrong’, for the

determination of consequential culpability. Albeit, the

yardstick of harm, to be used eectively, must involve the

victim-person’s participation in the CJS. e experience

of harm varies from the person to person (Winkel, 2007)

and it is the victim-person alone who can best express the

‘experienced harm’ of the criminal act.

By having a historical glance of the sketch of the

victim-person’s role in CJSs, we nd that in most of the

jurisdictions, it was limited to the victim-person being

the identier of the perpetrator and as a ‘star-witness’

to the crime. To have any other right, even if some were

recognized by the system, depended upon whether victim

is “lucky” to get an investigation ocer or a public ocer

in criminal justice system who recognizes and supports

the cause of victim rights. (Douglas et al., 1994).

In the late 20th century, the contemporary advocates

of victim rights have argued that the legal “working

group” (Einstein and Jacob, 1975), or the informal ‘court-

cartel’ of prosecution agencies, attorneys and judges-who

considered the victim-persons as an ‘outsider’ in the

courtroom who may inuence their standard modus

operandi or the ‘legal-objective reasoning’ (Victorian

Sentencing Committee, 1988), and therefore victim-

person’s role was limited in CJS.

Since the 80s of the previous century, a voice for

proliferation of victim-person’s ‘rights as an injured-

person’, including the right of participation in the CJS

started emerging in the legal spheres across the globe.

In the United-States, some of these rights were legislated

through the ‘Victim and Witness Protection Act, 1982’.

ese voices also reached the international platforms,

and in the year 1985, United-Nation’s seventh congress

on ‘prevention of crime and treatment of oenders’

declaration called for enabling the victim-persons to

have protection, assistance and rights including right to

participation in the criminal justice system.

e 1985 U.N., declaration led reforms in criminal

processes of several jurisdictions globally. One such

reform was the introduction of the VIS, where the victim-

person(s) can state the details of psychological, medical,

nancial, or any other impact including on their life-style,

wages, expenses, property, etc, which they experienced as

a result of the criminal act in question (Erez & Roberts,

2007). is statement may also include a pleading for

compensation or restitution. VIS tends to send a constant

reminder to the public agencies involved in the criminal

justice process that apart from the rights of ‘incorporeal’

state, the interests of a ‘sentient victim’-as ‘principal

injured person’ (Erez & Tontodonato, 1990) are also

involved.

Some jurists argue that in an adversarial system, where

the state and defence are the principal parties, the victim’s

say at the sentencing or VIS violates the core principles

of the system. (Ashworth, 1993; 2002). Ashworth (2000)

also discredits the VIS as a victim-right tool by terming

it as a ‘sweetener” which the state oers to manage the

perspective that it is looking aer the victim’s interest.

Another issue which is raised by the opponents of ‘active

victim participation’ and VIS is that the judge may get

persuaded by the statement of the victim-person and may

cross the boundaries of proportionality principle. (Kim

et al., 2016). is, according to them, may endanger the

defendant’s rights.

In the support of VIS, it is argued that the judges get

better and accurate sense of facts (Davis & Smith, 1994)

aer perusing the victim-person’s expression on it. Further,

in contrast to the speculation that the victim-person may

exaggerate in his narration, the studies have indicated

that though this argument is not completely unfounded,

it is only on miniscule instances that amplication is

observed. (Erez et al., 1994). Also, the victim-person, in

any case, is a witness for the prosecution and hence if (s)

he wishes to take a recourse to embellishment of facts,

s(he) can do while testifying as well. In an adversarial

system, the opposite party has a right to cross-examine,

and hence the defence gets an opportunity to surface

the prejudicial or exaggerated part of the statement of

this victim-person, in testimony or VIS, if any, and get

it rectied. Moreover, as pointed by Villmoare and Neto

(1987, p. 37), the exaggeration and ‘emotional-appeal’ by

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the victim-person also stands corrected by the evidentiary

materials on record, sentencing guidelines and judicial

precedents which binds the court

e U.S. Supreme Court also advocated2 for the

VIS by observing that the statement is not viewed as

‘emotionally charged testimony’ of the victim-person

aimed at deviating the judicial minds from the condition

of the accused to the character of the victim-person,

albeit the statement is precious to remind the CJS that the

victim-person is an individual who represents ‘unique

loss to society’.

Another development in the area of victim-person’s

participation in CJS is the concept of restorative justice

which facilitates the injured and responsible persons of a

harm to come together for communication. It envisages

reparation of the harm and nding a ‘way forward’. A

spectrum of mechanisms can be adopted to achieve

the goal of restorative justice, which include (Menkel-

Meadow, 2007): conference between the victim-person

and the accused, mediated by a trained facilitator;

community conference where victim-persons are from

a community and some members of this community

facilitate the dialogue with the accused; or the ‘shuttle

process’ which involves the ex-parte dialogue with a

facilitator or the judge, who facilitates the communication

between the parties. While these models are progressive

and nd acceptance in less serious cases, there is a

reluctance to accept them in serious cases (Reeves, 1989).

It is oen argued that, in serious cases, there needs to

be a bridge between the restorative and punitive justice

models, for having a successful implementation of both.

Further, penological arguments of punishment as a tool of

general deterrence is not satised with restorative justice.

But, the argument against restorative justice, which is

most pertinent for the context of our discussion, is that

the victim-person may be unwilling to meet the oender

(Reeves; 1989; Law Commission of Canada, 2003) or to

participate in the CJS.

is reluctance of the victim-person, to participate

in the CJS, may be out of several ostensibly threatening,

organic, or logistical reasons. (Shapland et al., 2006).

In cases where the victim-person is the whistle-blower

informant of oence, s(he) may be threatened of adverse

consequence to her person and property if her identity

is revealed to the oender. Further, in the cases of moral

or sexual turpitude, the victim-person may wish to

keep her identity secret. And, if it becomes mandatory

to participate, then the victim may not even prefer to

report the oence. In India, for instance, experience

as a law practitioner indicates that the cases of sexual

misconduct ensuing from teen-age relationships or

abusive partnerships remain largely unreported because

many relationships exist incognito and the victim-person

doesn’t wish to let her relationship be known to her family

or to society.

e afore-discussed two models of victim-

person participation, Viz. VIS and Restorative justice

mechanisms, do enlarge the scope of victim rights in CJS,

albeit do have certain limitations and arguments against

them. e primary argument, which is coherent to the

prompt question of this essay, is victim-person’s refusal

to participate in the process. While there is a strong

advocacy for the right of victim-person, the advocate’s

mindfulness must also encapsulate the victim-person’s

liberty in non-participation.

e victim-person’s participation may be less due to

reasons including lack of condence to exercise rights,

limited legal resources, or unwillingness to substitute

state prosecution; also, there are cases where the victim

assumes guilt and feels that she was responsible for the

crime which was committed on her. Especially in the

oences ensuing from domestic set-up, the victim may be

hesitant to get the accused punished and wish only for

protection from further impact on her rights. In cases

like these, the victim may not wish to participate in the

criminal justice process to avoid the punishment for the

perpetrator, or to avoid responsibility for punishment

awarded to the accused (Reeves & Mulley, 2000).

Since the participation of the victim-person enhances

the legitimacy of a CJS, a participation opportunity must

be extended to her; albeit all victim-persons should not

be expected to participate in all the processes ofCJS in

a mechanical-mandatory manner. Moreover, since the

victims may not be aware of legal jargons and legal pre-

requisites, it may not be an intelligible idea to expect them

to be the sole leading voice of the prosecution, as they

may lose sight of relevant details which are legal requisite

2Payne v. Tennessee (90-5721), 501 U.S. 808 (1991).

Nitish Rai Parwani

Global Advances in Victimology and Psychological Studies 43

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in a criminal justice process. Wherefore, to balance the

exercise-waiver dynamics of the participatory rights, the

victim-person’s participation should be a ‘directory-right’

and not the ‘mandatory-obligation’.

3. Psycho-Legal Dynamics in

Victim Participation

Anno O, the inspiration behind Freud and Breur’s work

Studies in Hysteria (1895) was a patient of hysteria. She

suered from hydrophobia, personality disorder and

anxiety. Once, she saw a dog licking water from her

grandma’s bowl, and suddenly she screamed. It was a

remembrance of a similar incidence which had caused

hydrophobia in her. Post this recall-scream incidence,

the hydrophobia symptoms reduced in her. is study

led Freud and Breur to discover the cathartic method

of psychoanalytical therapy, which is based on the

underlining principle that recollection and recognition

of unpleasant experiences-which get seeded in the

unconscious mind of the victim-can be a cure for the

mental disorders induced by them. If we extrapolate the

principles of this theory to the CJS, we may nd that the

victim-persons feel better aer narrating their experience

with the oence in question. is section of the essay

would examine this hypothesis, and delve into psycho-

legal dynamics of the victim-person’s participation in the

CJS.

A victim-person, aer suering the harm of the

oence, wishes to at-least have a sense of say in the justice

procedure for her. ere have been studies to indicate

that the victim-persons don’t really need the control over

the decision, but they desire to have a ‘process-control’

in the decision-making process (Wemmers & Cyr, 2004).

In other words, victim-persons feel satised with the CJS

as long as they are heard in the process, irrespective of

its direct impact on the decision. Reversely, the victim-

person, if stays unheard in the CJS, develops a feeling

of helplessness (Kipatrick & Otto, 1987). Further, an

opportunity of participation also has healing eect from

the trauma of victimization and harsh experience, if any,

of the investigation and trial process. (Ranish & Shichor,

1985; Erez, 1990).

Taking a theoretical foundation from the work

of Strang (2002), Sherman et al., (2005) conducted

a controlled trial with the restorative justice models

to demonstrate the relationship of victim-person’s

participation in CJS and its consequence eect on her

psychological-framework. is study indicated that

restorative measures and participation opportunity does

have a healing eect on victim-person. ough, some

studies other which have analysed the empirical data have

observed that the victim-person may not have a sense of

‘enhanced satisfaction’ aer recording VIS, in fact it may

ensuea contrasting outcome as well (Hoyle et al., 1991).

ese studies are also not without a contrasting empirical

analysis on the same issue (Wemmers, 1996).

Balancing these extremes, the studies have also

found that the level of satisfaction doesn’t solely depend

upon the recognition of the right to participate, but also

depends upon the nature of participation. For instance,

where the victim is entitled to merely submit a written

VIS, the level of satisfaction may not be as high as in

the case when victim is involved in more active sense-

for instance as a prosecuting-party (Erez & Bienkowska,

1993; Erez & Roberts, 2007, pp. 289).

On the other hand, the active participation of the

victim-person, in court-proceedings of adversarial-

system, may be followed by a cross-examination. ere

is no dearth of instances where the lawyers tend to cross-

examine the victim-person in a shaming manner (Mc.

Donald, 2020). Questioning the intimate or personal

details, immodest animation or tweaked recreation of

the crime story, and attempt to impeach the character

of the victim-person by the defence counsel may create

distressing circumstances and enhance the probability of

re-traumatisation of the victim-person. (Herman, 2011)

Despite the mixed results of empirical observations

and analysis, the general psycho-legal trend is in favour

of the argument that victim-person’s participation in

CJS tends to induce a sense of equity and perception

of satisfaction with CJS to the victim-person (Boer

and Sessar, 1991). is trend may also surface adevil’s-

argument, that if the victim-person actively participates

and derives ‘satisfaction’ from the CJS, her anger and

grief may overpower her rational narration of facts and

experience, and may guide her towards taking revenge

with the oender. However, empirical data reveals a

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contrasting picture. Studies reveal that the victim-person

seeks an answer to “why-me?” question. In other words,

the victim-person participates in the CJS to confront her

perpetrator, and join the dots of the events and reasons

which led to her victimization (Mattinson & Mirrlees-

Black, 2000). In many cases, the victim-person also seeks

an apology from the oender, and when it is received, the

victim-person may gain back her ‘self-esteem’ and may

also recover from the impact of victimization. (Bibas &

Bierschbach, 2004).

Even in context to youth justice, studies have provided

evidence regarding positive role of victim-person’s

participation. Littlechild, in report presented to Justice

Committee in 2013. observed that:

“e benets of restorative justice have been shown to

be improved sense of feeling that the young people and the

victims were part of the process; an understanding that

actions have consequences; improved skills for managing

conict; greater empathy towards others; increased mutual

respect; and improved feeling of community”. (Littlechild,

2013)

e studies, including the afore-discussed ones,

have buttressed that while considering the voice of the

victim-persons, be it through the perusal of written or

oral VIS or through restorative justice models, injects a

sense of condence in the victim-persons and empowers

them victim by extending them a feeling that they have a

power to forgive or not to forgive (Petrucci, 2002) ‘their’

perpetrator. Consequently, rather than the nature of

punishment awarded to the perpetrator at the end of the

justice-process, one of the major factors guiding victim-

person’s perception of satisfaction is the opportunity to

be heard and treatment with respect (Wemmers, 1996).

In other words, when the victim-person is heard and her

injury is respectfully acknowledged by the system, she

reposes trust in the system.

Further, the Victim-person’s participation in CJS may

be helpful not only for the healing and psychological

well-being of the victim-person, but it may also help

in inducing a sense of regret and rehabilitation in the

accused (Talbert, 1987), and would reduce the probability

of recidivism. Additionally, where the victim-person and

accused are strangers, the victim’s participation in the

system-especially by communication with the defence-

may facilitate familiarity between the parties. e party

familiarity may result in perpetrator recognising the

harm caused by them and may repent it, while the victim

may forgive the accused by knowing the circumstances

and situation in which the perpetrator acted.

Moreover, the direct participation of the victim-person

may facilitate the understanding of legally-unornamented

and factual picture of harm for the jury or the judge. Since

‘understanding’ and ‘cognition’ are contextual (Luhmann,

1996), it is important to fathom the background and

context of the oence and victim-person to comprehend

the crime and its ensuing consequences. An argument

which opposes this participation is that it may

mis-inuence the judge, which may result in harsher-

disproportionate punishment for the accused.

An empirical psycho-legal study (Kim, et al., 2016)

with a sample size of more than 200 participants has

indicated that though ‘blameworthiness’ or culpability

of the oender is impacted by the nature and severity

of the oence as well as by the experienced harm by

the victim; the increased-sentence doesn’t rely upon the

latter. erefore, this observation refutes the argument

that the involvement of victim may adversely and

disproportionately impact the case against the oender.

e same study also observed that the victim’s statement

about the impact and intensity of harm experienced by

them, buttresses the understanding of the assessors.

is understanding may then form a base to formulate

rehabilitation framework for the victim. erefore, while

the VIS tends to have miniscule prejudice, if any, against

the oender; it has a potential to enhance ecacy in

therapeutic and purgative victim support.

Further, while referring to empirical and doctrinal

data, Davis & Smith (1994), and Erez & Roberts (2007),

have found strong evidences which reect that the victim-

person’s participation facilitates a fair sense of justice,

even among judges and attorneys (Henley, Davis & Smith,

1994). Also, a notion of satisfaction (Kelly, 1984) and

procedural-justice (Dignan, 2004) is sensed by the victim-

persons, irrespective of the judicial outcome. us, the

victim-person’s participation in the CJS assists the judge

to clearly picture the harm while exercising the judicial

discretion in sentencing and deciding rehabilitation plan.

Nitish Rai Parwani

Global Advances in Victimology and Psychological Studies 45

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Wherefore, the empirical and psycho-analytical

evidence reinforces the proposition of participation of the

victim-person in the CJS; it also indicates towards certain

circumstances where the victim-person may encounter

re-traumatization if compelled to participate. Hence, the

observation of the rst section-supporting for victim-

person’s right, with a scope of waiver-is buttressed in this

section as well.

4. Perusing the Practice:

Conclusion

Due to limitation of space and time, several other emerging

issues in this area and their trends in dierent CJSs could

not be dealt in this essay. is section would conclude the

discussion by having a brief view of the operationalisation

of Victim-person’s participation, in practice.

Several jurisdictions acknowledged the victim-

person’s voicelessness in CJS, and made attempt to

rectify it-for each victim-person represents the failure

of the state to honour the ‘social-contract’ by failing

to protect the victim-person from the crime. In 1982,

the U.S. President’s task force recommended Victim

participation in the trial, and the same was endorsed

by a statutory right ensuing from 1991 Omnibus Crime

Bill. Presently, at-least 48 states in the U.S. have VIS at

the stage of sentencing. In Canada, where VIS led to

insertion of the connotation ‘victim’ in its criminal code,

the victim-persons can record or present VIS themselves

either in writing or orally (Roberts, 2003) and this right

is extended even at the stage of hearing on parole. Judge,

in the Canadian justice system, is bound to consider the

VIS to determine the sentence on the oender (s. 722 (1),

Criminal Code, RSC, 1985.)

In jurisdiction Viz. India, there is no formal provision

for VIS, albeit victim-persons do record statements-

narrating the facts as well as pleading for restoration

and compensation-under the general provisions of the

Criminal Procedure Code. ough ‘victim’ was dened

in the Indian Criminal Procedure statutes only in the

year 2009, there did exist some provisions in CJS-such

as the right from disclosure of identity, reimbursement

of expenditure to attend court-proceedings, right not

to be the informant of crime, right to le appeal against

insucient sentence to the oender, right to prosecute in

several quasi-criminal oences like domestic violence,

right to compound the oence by negotiating with

oender and in several cases right to be assessed for an

impact statement for interim-compensation-to support

victim-person’s participation in CJS. In some cases,

victim-person’s statement is recognised as a sole ground

of conviction3.

Further, in India, there is an emerging support for

formal introduction of VIS. e Supreme Court of India

has stressed3 the need to have a victim impact statement

“so that an appropriate punishment is awarded to the

convict”. e voices can be heard from the academic

corridors, advocating for formal introduction of victim’s

right to be heard-in absence of which, it is argued,

‘secondary victimization’ takes place (Bajpai, 2019;

Maguire, 1991) and victims of crime are marginalised in

the criminal justice process.

Despite mushrooming of provisions facilitating

victim-person’s voice in CJS, across jurisdictions,

(Roberts, 2008), the victim-person’s participation is

perpetually low in practice. For instance, a 2001 study

(Sanders et al) indicated victim participation and report

submission in only 30% cases in England and Wales; while

in Canada, the participation is as low as 11% (Roberts &

Edgar, 2006). Similarly, aer a decade of introduction

of plea-bargaining, only 0.45% cases (4,816 out of

10,502,256 cases) were disposed of by plea bargaining in

India. (Sekhri, 2017).

e probable reasons for the lower turnout of

victim-persons’ participation could be legal as well as

psychological. While rights are conferred upon victim-

persons’; their implementation may not be bona-de and

in the right spirit. For instance, even in academia, while

there is assertion for greater participation rights by the

victims, trial is referred as ‘tri-partite’ (Erez & Roberts,

2007), with victim-person, who is the most impacted party,

as the third party. In other words, despite recognition of

rights, the victim-persons might have been discredited as

legitimate party in CJS. Moreover, although participation

in CJS may have purgative and cathartic eect upon the

3Ganesan v. State, S.L.P. (Criminal) No.4976/2020

4Mallikarjun Kodagali v. State of Karnataka (2019) 2SCC752.

Directory Right or Mandatory Obligation to Participate: Psycho-Legal Dimensions of Victim-Person’s Participation ...

Global Advances in Victimology and Psychological StudiesVol 1 (1) | June 2022 |

victim-person, there may be circumstances, as discussed

above, which would compel the victim-person to waive

her right to participate. erefore, as buttressed by afore-

discussed evidences and arguments, while the advocacy

for meaningful participation of the victim-person in CJS

must continue; the participation must remain a directory

right rather than a mandatory obligation upon the victim-

person.

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