Forensic Justice: A Global Perspective [1 ed.] 1032629304, 9781032629308

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Forensic Justice Forensic science is playing an increasingly important role in criminal investigations, as it provides scientific methods and techniques to gather and analyse evidence from crime scenes. Forensic evidence can be crucial in identifying suspects, linking them to the crime scene, and helping to secure convictions in court. In this sense, forensic science is seen as an aid to criminal investigation, providing reliable and objective evidence that can be used to uncover the truth behind criminal activities. The integration of forensic science with law and criminology is creating a new era of progressive thinking, where advanced techniques are being developed to better understand the nature of crime and the behaviour of criminals. With the help of forensic science, investigators can obtain speedy justice and bring criminals to book. However, this requires appropriate measures to be taken for the efficient execution of forensic investigations, including the use of modern technology and the training of professionals in the latest forensic techniques. Given the importance of forensic science in the criminal justice system, it is essential to have a comprehensive understanding of its different aspects. This includes the collection, preservation, and analysis of forensic evidence, as well as the interpretation of this evidence in the context of criminal investigations. This book covers these topics in detail, providing valuable insights for professionals, practitioners, academics, and students of the related fields. Beulah Shekhar is the Chair Professor of Criminology at Loknayak Jayprakash Narayan (LNJN) and National Institute of Criminology & Forensic Science (NISFS). She also visits the Karunya Institute of Technology & Sciences, Coimbatore, India as Emeritus Professor of Criminology. Her responsibilities include teaching research & Extension activities with special focus on collaborative research. Purvi Pokhariyal is Professor of Law. She is Campus Director at the National Forensic Science University of the Delhi Campus, and Director of the Academics, Research and Consultancy at the National Forensic Sciences University. Prof. Pokhariyal is also the founding Dean of the School of Law, Forensic Justice and Policy Studies and the Dean of the School of Forensic Psychology at the National Forensic Sciences University.

Forensic Justice

A Global Perspective

Edited by Beulah Shekhar and Purvi Pokhariyal

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 Beulah Shekhar and Purvi Pokhariyal; individual chapters, the contributors The right of Beulah Shekhar and Purvi Pokhariyal to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-62930-8 (hbk) ISBN: 978-1-032-62932-2 (pbk) ISBN: 978-1-032-62934-6 (ebk) DOI: 10.4324/9781032629346 Typeset in Minion Pro by Aditiinfosystems

This book is a festschrift in honor of

Dr. J. M. Vyas

Padma Shri Awardee (Vice Chancellor – NFSU & Director General - DFS)

Dr. J. M. Vyas is the founder Vice Chancellor of a unique and highly specialized, National Forensic Sciences University (NFSU), Gandhinagar which has been recognized as an Institution of National Importance by the Government of India. He is holding this position from 1st October, 2020. Besides this, Dr. Vyas is heading the Directorate of Forensic Science of Gujarat, Gandhinagar for past 28 years including the additional charge of its Director General since 9th November, 2020. As such, with his vast experience and 48 years long service, Dr. Vyas is the senior most serving Forensic Scientist of the country. Dr. Vyas was instrumental in establishing NFSU’s predecessor, the erstwhile Gujarat Forensic Sciences University (GFSU) as the first and so far, the only forensics university of the world. As the founder Director General of GFSU, Dr. Vyas started this, one of its kind institutions of higher learning, in 2009 which has more than 5000 students undergoing 70 specialized Post Graduate Degree / Diploma courses being run in every possible branch of the forensic science and its allied subjects. Besides launching academic courses, Dr. Vyas has laid special emphasis on undertaking training of officers from Police, Judiciary, Armed Forces, Bureaucrats, Banking, Vigilance, Customs, Immigration, and Forensic Science from India as well as abroad. As a result, the university has so far trained more than 25,000 officers which is a huge effort in capacity building of the country. Even bigger contribution is in capacity building for 70 friendly foreign countries as officers from these nations are being regularly imparted training which has been deeply appreciated. Consultancy is yet another unique feature initiated by Dr. Vyas through which wide ranging expertise of NFSU is shared with different government agencies, private organizations and even foreign countries to overcome complex issues and setting up state-of-the-art facilities. Continuing in a Mission Mode, Dr. Vyas has taken major strides once the university was mandated to set up campuses and centers across the country as well as abroad. Within one year of establishment of NFSU, Dr. Vyas has not only got its first campus running in New Delhi but also established from scratch campuses in Goa and Tripura and launched post graduate courses from the current academic year itself. Work is in progress to set up more campuses in other states and plans are afoot to establish centres abroad too. Under his guidance, the NFSU has also progressed rapidly during past one year, with the establishment of a modern Centre of Excellence for NDPS with similar centers in other streams underway. With an aim to strengthen the criminal justice delivery system, Dr. Vyas has also established dedicated schools for Police Science & Security Studies, Law & Forensic Justice and Forensic Psychology. Needless to mention that the vast experience and expertise of Dr. Vyas is being widely tapped, some of which is listed below:Appointed as a member of “Task Force” for Railway safety audits by the Ministry of Railways, Government of India. Appointed as a consultant to C.B.I., New Delhi for the establishment of “International Centre of Excellence in Forensic Science” (ICEFS), Ghaziabad. Appointed as a member of the Organizing Committee of INTERPOL for three consecutive terms i.e. from 2008 to 2016.

vi Forensic Justice Appointed as a Member of the Governing Council of Association of Indian Universities (AIU), New Delhi. Appointed as a member of the Governing Council of International Institute of Digital Technology (IIDT), Tirupati which is headed by Hon’ble Chief Minister of Andhra Pradesh, to provide necessary advice in Academic and Administrative matters. Appointed as a member of the Governing Council of Indian Council of World Affairs (ICWA), New Delhi which is headed by Hon’ble Vice President of India. Invited by Parliamentary Standing Committee on Science & Technology, Environment, Forests & Climate Change, Rajya Sabha Secretariat, Parliament of India for giving his views and suggestions on various provisions of the DNA Technology (Use & Application) Regulation Bill, 2019. Appointed as a Member of the Sardar Vallabhbhai Patel National Police Academy (SVPNPA) Board which is the apex body to review the activities of the Academy and recommend measures for its continual improvement. Appointed as a Member of the Board of Governors of Gujarat Technological University (GTU), Ahmedabad. Appointed as a Chairman for the High Level Experts Committee constituted by the Government of Gujarat under New Education Policy – 2020 for translating subjects of Technical, Medical and other professional courses in Gujarati Language. Appointed as a Vice President of The International Association of Police Academies (INTERPA), Turkey. Appointed as a Member of the Council of Scientific and Industrial Research (CSIR) Society which is headed by Hon’ble Prime Minister of India. Dr. J.M. Vyas is an internationally renowned forensic expert. He has large number of publications in various journals of national and international repute to his credit. During the long and illustrious career of Dr. J.M. Vyas, number of recognitions, and National and International awards have been bestowed upon him, some of which are mentioned below: International Recognition: ‘Distinguished International Forensic Scientist Award’ in recognition of leadership and excellence in forensic science and education to the international community by The Henry C. Lee Institute of Forensic science, University of New Heven, West Heven, USA, in October, 2018. ‘Lifetime Achievement Award’ for outstanding contribution in the field of Forensic and Investigative Sciences at the international level by the International Association of Police Academies (INTERPA), Turkey on 11th February, 2019. ‘Humanitarian Forensic Award’ in recognition of exceptional services in the field of Humanitarian Forensics by the International Centre for Humanitarian Forensics (ICHF) on 5th September, 2019. National Recognition : ‘Padma Shri’, one of the highest civilian Awards, has been awarded, on the occasion of 73rd Republic Day (Year-2022), for his extraordinary, distinguished and commendable services in the field of Science and Engineering. ‘Gujarat Nu Gaurav’ (Pride of Gujarat) Award given by Hon’ble Chief Minister of Gujarat on 28/04/2022. ‘DRONA Education Excellence Awards – 2022’ given by Hon’ble Education Minister of Gujarat on 29/04/2022. ‘Bharat Mata Award’ by Indian Institute of Oriental Heritage in 2014. ‘Life time Achievement Award’ in the area of Forensic Chemistry by Amity University, Uttar Pradesh & All India Institute of Medical Sciences, New Delhi, in October 2008. ‘Best Forensic Science Laboratory Director of the country’ in 2004. ‘President’s Police Medal’ for meritorious services on the eve of Republic Day, in the year 1997.

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AMITSHAH

HOME AND COOPERATION MINISTER GOVERNMENT OF INDIA

MESSAGE

In an era when India is navigating a dynamic and multifaceted global landscape, the importance of crime prevention and investigation has gained unprecedented significance. The proactive measures taken to avert criminal activities not only ensure the safety of our citizens but also lay the foundation for a just and secure society . This book with two volumes titled, "Forensic Justice: A Global Perspective", holds the capacity for a profound exploration into the pivotal realms offorensics, criminology, and law. These disciplines collectively fonn the triad that underpins crime investigation and prevention, shaping the contours of our legal system. Recognizing the indispensability ofthese canons in upholding the tenets ofjustice and fortifying societal security, it is worth noting that this book is a festschrift in honour of Dr. JM Vyas. His enduring dedication and exceptional service spanning over five decades hold an indelible im print on the domain of forensic science. Under Honourable Prime Minister Shri. Narendra Modi's leadership, India has witnessed a renewed focus on forensic science, evident through initiatives such as bolstering • forensic labs and modernizing investigation techniques, contributing to enhanced criminal justice and societal security . Strengthening our Honourable Prime Minister's efforts and in this ever-evolving landscape, the National Forensic Sciences University (NFSU) emerges as an ideal crucible for nurturing such enlightening endeavors. Serving as a convergence point of the criminal justice system, NFSU's commitment to fostering research, training, and academic excellence within these domains sets a remarkable example. The compendium transcends geographica!" boundaries, encompassing a tapestry of research endeavors by scholars and practitioners hailing from different corners of the globe. The meticulously curated content, penned by experts, academics, and practitioners, offers practical insights, incisive analyses, and scholarly viewpoints . This compendium is poised to become an illuminating beacon for law enforcement agencies, legal scholars, educators, and aspiring students alike. I congratulate the editors and every professional who has enriched this meticulous work. I firmly believe that this compendium will cast a lasting influence on the field of forensics and its pivotal role in shaping the trajectory of forensic science with a global perspective.

·~

Witl, Best Wishes,

rnl .

rAH) Prof. (Dr.) Purvi Pokhariyal, Editor & Campus Director NFSU Delhi Campus Office : Ministry of Horne Affairs, North Block, New Delhi-110001 Tel. : 23092462, 23094686, Fax : 23094221 E-mail : [email protected]

Acknowledgements This book is an edited volume, a Festschrift for Professor Dr. J. M. Vyas, in honor of his over 50 years of expertise and teaching in the field of Forensics. It is the result of substantial contributions and extensive efforts by the academics, experts, and professionals who have authored the twenty-one chapters of this book. All the chapters present topics related to the field of Forensics, Criminology, Victimology and Law from a global perspective. We would like to express our gratitude to the many people who saw us through this book; who provided support, talked things over, read, wrote, offered comments, and assisted in the editing, proofreading and design. We as editors of this book would like to extend our gratitude to the contributors for extending support in every possible way towards the successful completion of the book. We would also like to acknowledge our research associate, Rithin Joseph, for providing technical and analytical support in compiling the chapters of the book. We would extend our thanks to all others who have not been mentioned here, but who took the initiative to provide ideas and insights for the book, in the process of shaping it. We are also indebted to our family members who provided us with the strength and motivation. It was their unconditional love, care and tolerance which made this book writing process more efficient. Last, but definitely not the least, we would like to extend our gratitude to the Routledge team for their guidance and efficiency in making sure we met our deadlines for the completion of the book. The book was shortlisted for its launch at the 1st Indian Post Graduate Course on Victimology, Victim Assistance and Criminal Justice organized by National Forensic Sciences University in collaboration with World Society of Victimology (WSV) at Gandhinagar, India. Prof. Dr. Beulah Shekhar Prof. Dr. Purvi Pokhariyal

Contents Acknowledgements List of Figures List of Tables Contributors

ix xiii xiv xv SECTION I Forensic Criminology and Victimology

1. Forensic Victimology: A Study in Criminal Victimisation Mich ael O ’Co nnell 2. The Sociological Criminology Behind Male Adult Victim Sexual Misconduct: A Comparative Analysis of Spain and New York Javier G omez L anz and Ad am Dubin

3

25

3. Role of Forensic Criminology in Access to Justice—A Critical Analysis Ar vind T iwar i and S o nali K us um

42

4. Countering Extremism in North East—Learning from Past and Way Forward Vid us hi S ah ani and B eul ah S hekh ar

68

5. Cyberspace Innocence and Victimization: A Critical Study of Fantasy Sports Suleman C ho ud hr i and R . N. Mango li

88

6. Pinkwashing and Capitalism Among Youth Culture Sabr in M ar iam Philip

105

SECTION II Forensic Justice and Law 7. Redefining Justice: The Transmutation via Tenets of Forensics Pur vi P o kh ar iyal, G a ura v J ad h av and D eepa D ube y 8. Exploring the Connection of Criminology and Forensics in the Criminal Justice System Realm: A South African Perspective Sph amand l a L ind ani N kos i, Mand lenk os i R ich ar d Mph a theni and Witness M al uleke

121

136

xii  Forensic Justice 9. Ethical, Legal, and Social Implications of the Procedure for Conducting Forensic/Scientific Testing N. Kri shna Kumar

152

10. Strengthening Critical Lens in Forensics to Address Sexual Violence Ruchi Sinh a a nd Su neh a K andp al

170

11. Victims of Criminal Justice System: Miscarriage of Justice Hu nny Mat iyan i a nd Ga r ima Puri

191

12. The Need for a Gender-Neutral Domestic Violence Act Lat hi ka Ku mari D .

204

13. Road Map for Delivering Justice to Victims of Drug-facilitated Sexual Assault (DFSA): A Forensic Outlook J. Sas i Ku mar 14. A Reflective Study on Rendering Services by The All-Women Police Station P. G. Suna nd a Bha g avathy

220 231

SECTION III Forensic Justice in the Criminal Justice System 15. Judicial Gatekeeping of Scientific Evidence and Experts in Criminal Adjudications Beul ah S hekh ar

255

16. The Journey of Fifty Years in Forensics Rukmani K r is hn amur thy

277

17. Advancements in Forensic DNA Analysis in Generating Investigation Leads and Elimination of Innocents Hirak R anj an D a sh, Tanvi Y ad av and M ans i Ar o ra

294

18. The Importance of Psychology in Law and Investigation: Exploring Forensic Psychological Investigative Techniques and Criminal Psychology Rithin J os eph

312

19. Eyewitness Testimony: Looking through the Lens of Psychology and Indian Jurisprudence Shiv ani N and kis ho r B h ave, L epaks hi K a ul and P ra ves h C h aran I sai

331

20. Forensic Justice for Seafarers in a Precarious Work Environment Sarah A gnel a S imo ns

348

21. Application of Forensic Biology in Criminal Justice System Seema M alho tra and L ipo kyanger J amir

367

Figures 13.1 14.1 14.2 14.3 14.4 14.5 14.6 14.7 14.8 14.9 14.10 14.12 14.11 14.13 14.14 14.15 14.16 14.17 14.18 14.19 14.20 14.21 17.1 17.2 18.1 21.1

Procedures for the forensic analysis in DFSA cases Age Religion Educational qualification Marital status Children Work Residence Reasons for visiting police stations Police officers treatment towards victims The relationship between victim and offender Physical assistance Services received from police officers Financial assistance Legal assistance Medical assistance Psychological Assistance Type of crime encountered Purpose of police station visit Stats of services provided Motivation for complaining at police station Suggestions given appropriate or not. Schematic representation of various SNP typing methods (Sobrino et al., 2005a) Diagrammatic representation of allele-specific hybridization method (Sobrino et al., 2005a) Geo profiling: Yorkshire Ripper attacks Different subdisciplines of forensic biology

228 237 237 238 238 239 239 240 240 241 241 242 242 243 243 244 244 245 245 246 246 247 298 299 319 369

Tables 2.1 2.2 2.3 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 5.13 5.14 5.15 10.1 10.2 10.3 10.4 10.5 17.1

National Intimate Partner and Sexual Violence Report: Comparative Analysis between Males and Females Victimization Report on Criminal Offences of Rape Evolution of Male Adult Victimization from 2016 to 2021 Type of Fantasy Sports Played Duration of Playing such kind of Fantasy Sports The Frequency of usage of Fantasy Sports Type of Sports most Interested in Details on Preference of different Sports Seasons Details of Amount of Money Spent on Fantasy Sports each Time Details of Approximate Amount of Money Spent on Fantasy Sports till date Details of Approximate Amount of Returns Received on Fantasy Sports till date Details of Approximate Amount of Money Lost on Fantasy Sports till date Impact on Family Income Details on Guilt Feeling from Loss Details on Feelings to Invest more Feelings on Victimization Details on Consideration of Fantasy Sports being Lottery or if it Promotes Lottery Perspective about Banning Fantasy Sports States & UTs with Highest & Lowest Crime Rate against Women (IPC + SLL) – 2019–2021 States & UTs with Highest & Lowest reports against Women & Girls Victims of Rape (Age Group-wise) – 2021 Offender’s Relation to Victims of Rape (Section 376 IPC): Highest & Lowest – 2021 Court disposal of rapes through some select crime heads for 2021 Experiences of women under conventional criminal justice and kaleidoscopic justice Advanced tools for predicting phenotypic characteristics using MPS (Kayser et al., 2023b)

32 35 35 97 98 98 99 99 99 100 100 100 101 101 101 102 102 102 174 175 176 178 186 304

Contributors Adam Dubin is an Assistant Professor of International Human Right Law at the Faculty of Law (ICADE) of Universidad Pontificia Comillas (Spain). Adam´s scholarship explores the intersection between development and human rights. He is the co-editor of a book titled “Gender, Poverty and Access to Justice: Policy Implementation in Sub Saharan Africa” (Routledge 2021). In addition, Adam also researches and writes on queer rights and the intersection between human rights and pop culture. He edited the book “The Eurovision Song Contest as a Cultural Phenomenon: From the Concert Halls to the Halls of Academia” (Routledge 2022) and is now working on a forthcoming book on Indian Cinema and human rights (Springer, 2024). Adam has served as a Visiting Professor of Comparative Human Rights Law in India, China, Portugal, France and Kenya. Prior to entering academia, Adam was a Legal Fellow at the United Nations Khmer Rouge Tribunal in Cambodia and also worked at the Human Rights Law Network in New Delhi, India. Arvind Tiwari is presently the Dean, School of Law, Rights and Constitutional Governance, TISS, Mumbai. Since, 2015 he is the Chairperson, Centre for Police Studies and Public Security at TISS. He completed his Bachelor of Arts, M.A. (Gold Medallist) and Ph.D. in Criminology & Forensic Science at Dr. H.S. Gaur Central University, Sagar, Madhya Pradesh. He has been engaged in many public policy research projects in the area of Access to Justice. He has supervised several successful Ph.D., M.Phil. and Master’s students and published several research papers in peer reviewed journals in a span of more than 25 years of career. Previously, he worked at LNJN National Institute of Criminology & Forensic Science, Ministry of Home Affairs, Government of India & National Human Rights Commission, New Delhi. He is recipient of Kumarappa-Reckless award (the highest award in field of Criminology in India), Fellow (FISC) and Dr. B. S. Haikerwal and Prof. Sushil Chandra Award for his significant contribution in Criminology. He has been conferred Human Rights Millennium and Human Right Promotion Award by the Indian Institute of Human Rights, in Human Rights and Prof. L. P. Vidyarthi award for Best Social Scientist by Indian Social Science Association. Beulah Shekhar is a distinguished academic and renowned expert in the field of criminology. She currently holds the position of Chair Professor of Criminology at Loknayak Jayprakash Narayan (LNJN) & National Institute of Criminology & Forensic Science (NISFS). She has held various prestigious positions, including Professor & Head of the Department of Criminology and Criminal Justice Sciences at Manonmaniam Sundaranar University. She has also served as the Director of the Center for Empowerment & Women’s Studies and as the Special Officer for RTI/CM Cell/Local Fund Audit. Dr. Shekhar’s research focuses on addressing inequalities and increasing access to justice for marginalized groups such as women, dalits, children, transgender persons, and victims of crime and abuse of power. She has led multiple research projects funded by reputable organizations like the University Grants Commission (UGC), Indian Council of Social Science Research (ICSSR), Bureau of Police Research and Development (BPR&D), and United Kingdom-India Educational Research Initiative (UKIERI). Recognized for her expertise, Dr. Shekhar has been invited to present her research findings in several countries worldwide and

xvi  Forensic Justice has published extensively in national and international journals. She has also played an active role in national consultations on criminal justice reforms and evaluations. Dr. Shekhar has received numerous awards and fellowships, including the Indo-Hungarian Fellowship, Commonwealth Academic Staff Fellowship, Fulbright Fellowship, and prestigious awards from the Indian Society of Victimology and Indian Society of Criminology. With her vast experience and remarkable achievements, Dr. Beulah Shekhar continues to shape the field of criminology, advocate for victims’ rights, and contribute to access to justice initiatives in India and beyond. Deepa Dubey is currently working as a Teaching and Research Assistant at the School of Law, Forensic Justice and Policy Studies, National Forensic Sciences University, Gandhinagar. Her past experiences include working as Sr. Legal Executive at Karnavati University, Gandhinagar, and her association with the Unitedworld School of Law as visiting faculty. She completed her LLM in Constitutional & Administrative Laws from the Institute of Law Nirma University, Ahmedabad in 2020. She has presented papers at various national and international conferences and has publications in renowned journals covering Environmental and constitutional law, Higher Education, and human rights laws. Her areas of interest include Criminal Law, Constitutional Law, and Environmental Law. She is pursuing her Ph.D. (Law) in Legal Aspects of Citizenship Law from Institute of Law, Nirma University, Ahmedabad. Garima Puri is an accomplished individual with a strong background in the field of criminology. She completed her graduation in B.A. Psychology (Honours) from Daulat Ram College, University of Delhi. Building upon her interest in the subject, she pursued her Post Graduation in M.A. Criminology with a specialization in Human Rights from LNJN-NICFS, MHA Delhi. She has also qualified the UGC-NET Criminology examination. In 2018, Ms. Garima Puri joined the National Institute of Criminology and Forensic Science (NICFS) as a Junior Research Fellow (Criminology). During her tenure, she gained valuable experience in research, teaching, and training senior officers of the Indian Criminal Justice System. Her contributions in this role helped further the understanding and application of criminological concepts in the Indian context. Ms. Puri also served as an Adjunct Faculty at O.P Jindal Global University, where she shared her expertise and knowledge with students. Currently, she is pursuing her PhD in Criminology from the National Forensic Science University, Delhi Campus. Her research focuses on various aspects of criminology, including juvenile delinquency, rehabilitation, criminal psychology, victimology, recidivism, and crime prevention. Gaurav Jadhav is an alumnus of Savitribai Phule Pune University and has accomplished his bachelors from Dr. D. Y. Patil Law College Pimpri and LL.M. in Corporate Law from the Department of Law, Savitribai Phule Pune University. He is a Gold Medalist for 1st Rank in LL.B. and LL.M both in entire SPPU. He had accomplished his Ph.D. on the topic Death penalty and Mercy Petitions in 2020. He is deeply inclined to the legal research and has accomplished many legal research projects during his tenure as UGC NET- Junior Research Fellowship whilst pursuing his Ph.D. He has the recipient of the 1st Award in the Ph.D. Category in the Avishkar 2015’ an Inter-University Research Convention initiated by the Hon’ble Governor of the Government of Maharashtra. He had joined the National Law University, Jodhpur as an Assistant Professor in 2019. He has published research papers in various law journals and has teaching expertise in Criminal Laws, Constitutional Law, Administrative Law, and Labour Laws. He has joined School of Law, Forensic Justice and Policy Studies at National Forensic Sciences University (NFSU) Gandhinagar, Gujarat, in August 2022. He has contributed in various workshops and training programs as a resource person in the subject of Forensic Evidence as well as Forensic Investigation. In NFSU he is leading the responsibility of various legal research projects and serving as a Faculty for Criminal laws.

Contributors xvii

Hirak Ranjan Dash is an Assistant Professor, Forensic Biotechnology at National Forensic Sciences University, Delhi Campus. He has obtained his Ph.D. Degree in Life Science from National Institute of Technology, Rourkela. Before joining academics, he served as a DNA expert at Forensic Science Laboratory, Madhya Pradesh. He has a research experience of more than 12 years at the Institute of Life Science, Bhubaneswar, National Institute of Cholera and Enteric Diseases, Kolkata and LV Prasad Eye Institute, Hyderabad. His research interests include Forensic DNA analysis, genetic markers, forensic microbiology, and Next Generation Sequencing. He has published 50 research papers and 10 books till date. He is a recipient of research fellowship from the Indian Academy of Science. He is the pioneer in India to work on NGS based forensic DNA analysis. He is a life member of International Society of Forensic Geneticists and Association of Microbiologists of India. He has been featured in the list of world’s top 2% researchers in 2021 and 2022. Hunny Matiyani is a Criminologist by profession and has a rich experience of more than 10 years in the field of teaching, training, and research. She is working as Assistant Professor Criminology with National Forensic Sciences University. Before joining NFSU, she has worked with various institutions of national repute e.g. National Institute of Criminology & Forensic Science, Raksha Shakti University, National Commission for Women and National Institute for Public Cooperation and Child Protection. She holds a PhD in Criminology & Legal Studies, Masters in Criminology from Guru Gobind Singh Indraprastha University and Post Graduate Diploma in Victimology & Victim Assistance. Her areas of interests include comparative criminology & victimology, juvenile delinquency, criminological theories, corrections criminology, and feminist criminology. J. Sasi Kumar is presently working as an Assistant Professor in the Department of Criminology, Jharkhand Raksha Shakti University, Ranchi. Previously, he served as a lecturer at the Central Bureau of Investigation (CBI), Training Academy, New Delhi. After completing of B.Sc. in Chemistry, he secured M.Sc. in Criminology and Criminal Justice Science with university second rank. He completed his doctoral degree in Criminology at Manonmaniam Sundaranar University, Tirunelveli under the Bureau of Police Research and Development (BPR&D) Fellowship Scheme-2010, Ministry Home Affairs, GOI. He started his career in 2011 as an Assistant Professor in the Department of Criminology and Police Administration at JHA Agarsen College, affiliated with the University of Madras. He published more than ten research articles in peer-reviewed national and international reputed journals. He was awarded a gold medal for presenting the best research paper at an international conference on exploring the linkage of drugs and crime. For honoring his remarkable services in teaching and research, the National Institute of Entrepreneurship Development, Tamil Nadu bestowed him with the Young Educator and Scholar Award. Javier Gómez Lanz is a Full Professor of Criminal Law at the Faculty of Law (ICADE) of Universidad Pontificia Comillas (Spain). He holds a Law degree (with Honors) from Universidad Pontificia Comillas (1996) and a PhD with Honors for the Best Doctoral Thesis (2005). He is also a B.A. graduate in Philosophy from UNED (2009). Prior to entering academia, Javier was a criminal defense lawyer with a leading European firm. His current research focuses on the Theory of Crime, Legal Consequences of Crime, and Economic and Corporate Criminal Law. He has published extensively, presented at conferences, and provided expert opinions to parliamentary committees. Javier has participated in multiple competitive national and European research projects. He currently serves as the lead researcher of the project “Prediction and Risk Assessment in Economic and Corporate Crime for Preventive and Rehabilitative Purposes,” funded under the I+D+i 2020 Projects Call. Additionally, he has been recognized by the Spanish Government academic accreditation agency for his quality research output.

xviii  Forensic Justice Lathika Kumari. D is working as Assistant professor in Kerala law academy law college, Thiruvananthapuram after completing LL.B and LL.M from Kerala university. She has been practicing as advocate in vanchiyoor court, Thiruvananthapuram for ten years. Her other educational qualifications include MA in Economics and history,Post Graduate diploma in computer applications and counselling psychology,PGC(Criminology), MSW and MBL. She has more than 30 years of teaching experience in economics, history,politics, sociology and computer Application, She has more than six years of experience in teaching law papers, she has participated in many national, international and local seminars. She has many papers to her credit and has presented papers in both international and national symposiums and conferences. Lepakshi Kaul has her expertise in the area of Forensic Psychology and Clinical psychology. She is currently pursuing her Ph.D. in Forensic Psychology and is also working as a Teaching & Research Assistant at National Forensic Sciences University, Gandhinagar Campus, Gujarat, India. She has been awarded a Gold Medal in Forensic Psychology by erstwhile Gujarat Forensic Sciences University and Personal Excellence Award (Clinical Psychology) for academic progress and positive attitude throughout the course curriculum by Amity Institute of Psychology & Allied Sciences, Amity University. Her area of interests includes psychopathy, understanding children in conflict with law, antisocial personality. She also has profound knowledge in various forensic psychological investigative tools such as Polygraph, Brain Electrical Oscillation Signature (BEOS), and Suspect Detection System Lipokyanger Jamir is currently pursuing masters in Forensic Science with specialization in Forensic Biology & Biotechnology as from National Forensic Sciences University (NFSU), Delhi Campus. He has completed B.Sc. in Life Sciences, Chemistry and Forensic Sciences from SHUATS University, Prayagraj in 2021 and higher secondary education from Nagaland Board of School Education with PCB as the integral subjects in 2016. He was awarded Silver Medal for Scholastic Merit in B.Sc. He has undergone internship in Quizzy Company as a Quality Assurance Analyst in subject matters related to Biology. He has also undergone an internship at Central Forensic Science Laboratory, CBI Delhi in Forensic Serology and DNA Profiling division. Mandlenkosi Richard Mphatheni is a Criminology and Forensic Studies PhD candidate, hold Bachelor of Social Science Honours in Criminology and Master of Social Science in Criminology all obtained at the University of KwaZulu-Natal. Also obtained Bachelor of Social Sciences from Walter Sisulu University, major in Criminology and Psychology with Sociology as an elective. He is currently a Lecturer at the University of Limpopo teaching first year and third year classes. Previously he has worked as a lecturer teaching honours level and a third-year classes for a short period in the following universities: Walter Sisulu University, University of KwaZulu-Natal and Zululand University. He is a member of World Society of Victimology and has presented oral in the last symposium of WSV held in Donostia-San Sebastian City in Spain. His research interest and publication is on Cybercrime, Sexual offences, criminology as the profession and on Genderbased violence. Mansi Arora is a PhD Scholar in School of Forensic Science, National Forensic Sciences University, Delhi Campus. She has presented multiple papers and published papers in journals over time. She wishes to excel in the field of Forensic science in time. Michael O Connell AM APM BSocSc MPubPol DiVict DiMAP, a consulting victimologist, was the inaugural Commissioner for Victims’ Rights, South Australia (2006-2018). Prior to this appointment, he was that state’s first Victims of Crime Co-ordinator (2001-2006) and its first

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Victim Impact Statement Co-ordinator (1989-1994). He is an Honorary JIBS Fellow, O.P. Jindal University and Advisory Board Member, Centre for Criminology, Criminal Justice and Victimology, RGNUL. He is also a Vice-President for the Alliance of NGOs on Crime Prevention and Criminal Justice, a Foundation Board Member of Victim Support Asia, and a life-member and the immediate past Secretary-General of the World Society of Victimology. He serves as a volunteer core expert for the UN, including projects on the rights for victims of crime and victims of terrorism; and he is a member of the international volunteer guest faculty on Victimology (which is a discipline on which he has written chapters and articles). In 2017 Michael was made a Member of the Order of Australia for his decades of work in criminal justice, especially advocacy for crime victims. He has also been given other awards for his promotion of Victimology and advancing crime victims’ rights. N. Krishna Kumar is currently the Associate Professor and Principal in charge of The Government Law College, Kozhikode. He has authored ten books among which are Jurisprudence and Legal Theory, Land Laws, International Law and Human Rights, Code of Civil Procedure (Forward by: Justice V.R. Krishna Iyer), Rank file for Criminal Judicial Test, Munsiff-Magistrate Examination etc. He is also the editor of 3 Law Journals. He has been actively engaged in research and teaching both at the graduate and post graduate level since 2003 and has awarded Indo Middle East Excellence Award 2022 for Leadership in Law Education in the World Innovative Research International Conference 2022 held in Dubai. He has guided more than 250 LLM dissertations, 200 Projects and 8 Ph. D. Theses. He has presented papers in more than 100 International seminars/ conferences/workshops. He is the member of PG board of studies and chairman of valuation board of University of Calicut. He has been the secretary of the voluntary organization “Neethi” which has been founded by Late Sri. P N Panicker. He is a regular contributor of Academy Law Review and Law Journals of CELNET. He participated in the Orientation and Refresher Courses of UGC, DTS, ELT, EOT, mentoring skills and many other trainer development Programmes. P. G. Sunanda Bhagavathy is currently working in Karunya Institute of Technology and Sciences, Coimbatore as Professor & Head of the Department of Criminology. She has done her PG in Criminology and Doctorate in Criminology. The Doctorates was `Access to Justice – Victims of acquitted murder cases of three districts of Kanyakumari, Tirunelveli and Thoothukud’. In the present capacity, she teaches Police Administration, Penology, Victimology, Forensic Science Theory and Practical, Contemporary forms of crimes, Private detective and Investigation, Juvenile justice and more. Before she could take up this Job, she was serving as a Police officer in Tamil Nadu Police and retired as Additional Superintendent of Police. While in service, she has served in various capacities like, officer in the Police security and Anti-hijacking in the International Airport, Chennai, Special Branch CID officer in the Police Head Quarters. She has served in All women Police Stations St.Thomas Mount & Avadi, Kuzhithurai, Ambasamudram & Srivaikundam, Police training college as Vice principal, DSP Inservice Training for Tirunelveli Range and Additional SP in Q Branch CID. She has authored seven articles in journals such as Indian Police Journal and International journals, besides partaking in three book chapters. She is good in teaching the students with practical experience and demonstrations. Pravesh Charan Isai is a seasoned Forensic Psychology expert specializing in assessments and investigations. Currently, he is working as a “Scientific Assistant” in Centre of Excellence in Investigative & Forensic Psychology at National Forensic Sciences University, Gandhinagar Campus, Gujarat, India. With proficiency in tools like Brain Electrical Oscillation Signature (BEOS), Polygraph, SDS, and LVA, he possess extensive experience in the field. His research

xx  Forensic Justice background in forensic psychology and criminology further enhances his expertise in this domain. Purvi Pokhariyal is an esteemed and accomplished professional with over 25 years of experience in the field of Law and justice administration. She holds the distinguished position of founding Dean of the School of Law, Forensic Justice & Policy Studies and the Dean of the School of Forensic Psychology at the National Forensic Sciences University (NFSU), Gandhinagar. Additionally, Prof. Pokhariyal serves as Campus Director at the National Forensic Science University of the Delhi Campus and also holds the position of Director of Academics, Research, and Consultancy at NFSU. Prof. Pokhariyal has been a consultant and a resource person on various aspects of Legal studies for the government as well as non-government organizations. Prof. Pokhariyal has been conferred with the distinction of being the first-ever female chairperson of the Indian Society of Criminology. Acknowledging her outstanding contribution to the field of criminology, the Indian Society of Criminology bestowed her with Senior Social Scientist Award. Prof. Pokhariyal was also selected for best Law Professor Award by the Business School Affairs & Dewang Mehta National Education Awards. Prof. Pokhariyal is a visiting faculty at HOF University, Germany, and a resource person at various training programs, workshops, and National and International conferences. Prof. Pokhariyal has several research papers published to her credit and has presented more than 50 papers at various National and International Conferences. Prof. Pokhariyal has authored a book on Artificial Intelligence and Law. Prof. Pokhariyal has also been the editor of many academic law journals. Prof. Pokhariyal is also associated with State Judicial Academy and Police Academy as a resource person. R. N Mangoli MA, Ph.D. in Criminology and Forensic Science, have 18+ years of teaching experience. His research areas of interest are Correctional and Penal Policies, Criminology and Criminal Law, Police Science and Forensic Science, Human Rights, and Security Management. He has Eight PhD Scholars at Present and four have been awarded. Has published more than 70 articles in journals and Books. Has presented 60 plus papers at various seminars and conferences and 1 Edited Book. Have one minor project sponsored by UGC and a major project sponsored by ICSSR to his credit. Has been conferred with various prestigious awards by the Indian society of Criminology and victimology. Rithin Joseph is a Junior Research Fellow in the School of Law, Forensic Justice, and Policy Studies at National Forensic Sciences University (NFSU). He holds a master’s degree in MA Criminology with a specialization in Forensic Psychology, for which he received a Gold Medal from the National Forensic Sciences University. With a bachelor’s degree in BSc Psychology from Prajyoti Niketan College, Kerala, Mr. Joseph has developed a strong foundation in the field. His expertise lies in areas such as criminal psychology, criminal profiling, the physiology of detection of deception, and the utilization of forensic psychological investigative tools like polygraph, BEOS, SDS, LVA, and Eye detect. During his master’s program, Mr. Joseph conducted research focused on understanding the physiological sex differences in the detection of deception using SDS, which formed the basis of his thesis. His work contributes to the advancement of knowledge in the field of forensic psychology and deception detection with the incorporation of law. As a Junior Research Fellow, Mr. Joseph actively engages in research and contributes to the School of Law, Forensic Justice, and Policy Studies at NFSU. Rukmani Krishnamurthy is a highly accomplished forensic scientist and a prominent figure in the field of forensic science. She made history in 1974 by becoming the first lady forensic scientist

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to join the Directorate of Forensic Science Laboratories, Maharashtra. With an illustrious career spanning several decades, Dr. Krishnamurthy has faced numerous challenges and overcome them to achieve her goals. Her expertise and contributions in the field have earned her prestigious positions and accolades. She currently serves as the Chairperson and CEO of Helik Advisory Ltd., where she provides valuable insights and guidance. Dr. Krishnamurthy is a respected member of the Academic Council of the National Forensic Science University in Gandhinagar, Gujarat. Her extensive knowledge and experience make her a valuable asset to the university. Previously, she held the position of Technical Adviser at the Institute of Forensic Science, Government of Maharashtra, and served as the Director of the Directorate of Forensic Science Laboratories, Home Department, Government of Maharashtra. Additionally, she has contributed to the academic community as a Senate Member of Mumbai University. Throughout her career, Dr. Krishnamurthy has handled significant cases and played a crucial role in the advancement of forensic science. Her expertise and leadership have made a lasting impact on the field, and she continues to inspire future generations of forensic scientists. Ruchi Sinha is an Associate Professor of the Centre for Criminology and Justice at the Tata Institute of Social Sciences (TISS), Mumbai, India. She completed her MPhil/PhD from Jawaharlal Nehru University (JNU), New Delhi. She has over two decades of experience in violence, human rights, development, criminal justice policy, policing, social work in the criminal justice system, trafficking, child rights, child protection and juvenile justice. Currently, she is engaged in issues around sexual exploitation, abuse and its impact on children, and studying the impact of development on families. Correspondence to Dr Ruchi Sinha, Associate Professor, Centre for Criminology and Justice, School of Social Work, Tata Institute of Social Sciences, Mumbai-400088, India. Sabrin Mariam Philip is a Criminology research scholar at Karunya Institute of Technology and Sciences, Tamil Nadu, India. She holds a bachelors in Forensic science from Galgotias University and masters in Criminology with specialisation in Forensic Psychology from National Forensic Sciences University, India. She is a Kerala native however born and raised in the United Arab Emirates , she finished her schooling in the U.A.E and is pursuing her higher studies in various states of India. Therefore, she is a third culture kid with an amalgamation of various cultures and values inculcated. Her current research interests are Queer Criminology and the victimizations confronted by the Queer Community. But she is also open to themes of Criminal Profiling, Police Psychology and Forensic Psychology. Seeking new experiences and experiential knowledge in the fields of Forensic Science, Criminology and Forensic Psychology. Sarah Agnela Simons as a Forensic Criminologist and Victimologist Sarah continues to demonstrate an unwavering commitment to nurture emerging home-grown and culturally relevant crime prevention, victim and survivor assistance programs in Africa. This focus on raising a new generation of competent Victimologists, Criminologists and community leaders is a culmination of over forty years of university academic, administrative and research work on four continents. Professional engagements and voluntary community engagements include breaking new ground to sow academic seeds in Social Science disciplines relatively new to the Africa region such as Forensic Psychology Forensic Victimology and Forensic Criminal investigations. Strengthening Continued professional development of professionals of community-based organisations, NGOs, academic staff, law enforcement, judiciary and civil society actors to combat international and organised crimes. As an asset to stakeholders at different levels, designing capacity development

xxii  Forensic Justice programs, victim assistance strategies and translating global security challenges into deliverables at national, regional and international levels. Seema Malhotra is currently working as Assistant Professor at National Forensic Science University, Delhi campus, India. She has completed his Ph.D. at the Defence Institute of Physiology and Allied Sciences (DIPAS) DRDO, affiliated from Bharathiar University, in 2019. She has worked as research associate in DBT funded Project “Establishment of Diagnostic Centre DBT-NIDANKendra at Lady Hardinge Medical College & Hospitals (LHMC). Her field of research is focused in human genetics specifically in area of Forensic DNA fingerprinting, Inherited disease genetics and population genetics studies. She has studied the Single nucleotide polymorphim (SNP) markers associated with physiology of high altitude natives (Ladakh and Gorkha) and gene expression studies to understand the pathophysiology of HAPE (High altitude pulmonary edema) patients. She has experience in area of medical genetics for screening of antenatal couples for hemoglobinopathies (Beta thalassemia, sickle cell anemia), Culture and karyotyping for chromosomal abnormalities, genetic diagnosis of prenatal samples (amniotic fluid and chorionic villi sample) and new born screening for five inborn metabolic disorders. She has published research paper in peer-reviewed international journals. Shivani Nandkishor Bhave is currently pursuing MSc at “The Maharaja Sayajirao University of Baroda (M.S.U.)” in Medical Biotechnology. She has successfully completed her graduation in Forensic Science at Parul University, Vadodara, Gujarat, where she was recognized for her academic excellence and received Gold and Bronze Medals. Her educational background in Forensic Science has instilled her a strong interest in studying and analyzing behavioural patterns and motives of criminals to assist in criminal investigations and profiling. Alongside this, she is particularly intrigued by research areas such as advanced techniques for DNA extraction, profiling, and comparison, as well as the application of genomic technologies and bioinformatics to analyse genetic markers of oncogenes and population genetics in forensic contexts. In her future endeavours, she is eager to contribute and create a positive impact in the field of research. Sonali Kusum is Assistant Professor of Law at Tata Institute of Social Sciences (TISS) Mumbai. She has submitted Ph.D thesis on “ Constructing a Legal Framework on Surrogacy in India” at National Law School of India University Bangalore. She has received my Ph.D in Law degree from the Chief Justice of India, Sharad Arvind Bobde , Supreme Court of India at National Law School of India University, Bangalore. For her research contribution on Surrogacy law in India , She had the opportunity to be invited by Rajya Sabha Committee on Health & Family Welfare to present her views and her suggestions have been included in the Rajya Sabha Report No. 102, August 2017 on the Surrogacy Bill 2016 , She is one of the members of International Surrogacy forum. Previously, She had been Research Associate (Legal) at Centre for Child & Law as a part of UNICEF India Project. She had been writing regular columns in a law magazine bearing published from All India Reporter (AIR) Private Ltd. Sphamandla Lindani Nkosi is a lecturer at Lyceum College; also, he is affiliated with the University of KwaZulu-Natal as a supervisor at the honours level. Lindani is pursuing a PhD in the Department of Criminology and Forensic Studies at the University of KwaZulu-Natal, South Africa. He has published scholarly articles in renowned academic journals and presented at conferences. Currently, Sphamandla Lindani Nkosi will publish four scholarly papers co-authored with fullyfledged scholars in related fields. His research mainly focuses on human trafficking, land reform, cybercrime, illicit financial flows, and gender-based violence.

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Suleman Choudhri M.Sc. Criminology and Criminal Justice, currently pursuing Ph.D. at Rani Channamma University, Belagavi, Karnataka, under supervision of Prof. R N Mangoli. Have 4years of teaching experience and one year as a research assistant. He also trained newly recruited and promoted police officials of the Karnataka state police. Cleared National Eligibility Test for Lectureship in 2017 and Junior Research Fellowship in July 2019. Have published 07 articles in journals and presented 18 papers at conferences, also attended various National and International conferences, seminars and workshops, etc. Suneha Kandpal is pursuing PhD from TISS, School of Social Work and is currently engaged as a Senior Consultant with ICRW. She possesses 15+ years of experience in the development sector with a strong background, in qualitative research & documentation, and trauma counselling. Her core areas of work have been around gender, violence (sexual and domestic), RCH/ARSH, family planning, life skills training and gender and work. She also has experience working with government and academic institutions, and international organisations such as BBC Media Action, ICRW, Population Council, Breakthrough etc. Correspondence to Suneha Kandpal, PhD scholar, Centre for Criminology and Justice, School of Social Work, Tata Institute of Social Sciences, Mumbai-400088, India Tanvi Yadav is an Assistant Professor in the Department of Law, Forensic Justice and Policy Studies, National University of Forensic Sciences- Delhi Campus. She received her Ph.D. in Law from the Central University of Rajasthan with Senior Research Fellowship of UGC. Her research interests span Criminal Law, Constitutional Law and Human Rights. She has published 15 papers in various journals and books. She has presented her work at various National and International platforms. She was an invited discussant at the International Conference on Social Exclusion at The New School University, New York City, USA. She is the (Principal Investigator) PI of a major project supported by Firebird Foundation, USA. She has conducted Soft Skills training Classes for the Jammu and Kashmir Police personnel and delivered various training lectures to officials. Vidushi Sahani is an independent policy researcher and currently pursuing PhD in Sociological and Psychological causes of Radicalization from National Forensic Science University. She has served in various supportive and advisory capacities for Central Government Ministers and Members of Parliament. Previously, she was working with Public Policy Research Institute, an organization dedicated towards decoding policy challenges and presenting evidence based solutions. She has a Masters in Criminology and Criminal Justice Administration from Madras University Witness Maluleke is an accomplished academic with extensive qualifications in policing. He holds multiple degrees from Tshwane University of Technology (TUT) in South Africa. He is currently an Associate Professor at the University of Limpopo (UL), where he coordinates the Criminology and Psychology programs. Prof Maluleke has published over 70 research articles and six book chapters. He has supervised the graduation of 15 Master’s and two Doctoral students, as well as mentoring over 50 honours students. He has participated in 22 academic conferences and serves as a reviewer for over 30 peer-reviewed journals. In 2017, he founded the ‘Hlayani Excellence Awards for Learners (HEAL)’ for disadvantaged students in rural South African schools. Prof Maluleke has received various academic awards, including the Emerging Scholar Award and the HSRC and USAf Medal. He has also been selected for programs such as the DHET Future Professors Programme and the Junior Research Fellows Programme. He has been recognized for his achievements by UL, UKZN, and TUT.

Section I Forensic Criminology and Victimology

Chapter 1

Forensic Victimology: A Study in Criminal Victimisation Michael O’Connell

Abstract: About the end of the 18th century, criminologists acknowledged the importance of studying the elements of a crime to explain it, while the police began to recognise the importance of crime scene analysis to solve crimes. Between the late 1800s and early 1900s, Sir Arthur Conan Doyle introduced his famous fictional detective, Sherlock Holmes. Holmes had the ability to see the unseen at crime scenes. He used scientific methods and technologies beyond his time and applied them via deductive (and occasionally inductive) reasoning to solve crimes. Since then, criminology has evolved and fostered the birth of victimology. Likewise, Holmes influenced modern-day crime scene analysis, forensic science, and investigative techniques. Victimology as an applied discipline and Holmesian scientific practise converge as forensic victimology. This chapter outlines the convergence of criminological fact and Holmesian fiction as an introduction to forensic victimology. Next, it discusses the nature and purpose of forensic victimology and critiques this branch of applied victimology. The chapter suggests that the focus on victim profiling, which sheds light on the victim of crime, is appealing. But victim-profiling might mask subtle differences that, regardless of how small, matter. Keywords: Victimology, Forensic victimology, Policing, Scientific method, Crime scene analysis

Introduction The title of the chapter is inspired by the Sherlock Holmes stories, which first appeared during a time of great social change in Britain. Since then, Holmes has become arguably the world’s most famous ‘fictional’ detective, the subject of numerous film and TV adaptations as well as radio programmes. The original 60 stories of his exploits are available in over 70 languages, which arguably means that other than the Bible, the stories are the most translated collection. Holmes was knowledgeable in forensic science before there was a forensic science to be knowledgeable in. In the late 1800s and early 1900s—that is, during the Holmesian era—a new breed of experts on crime and its causes known as criminologists emerged.

4 Forensic Justice Both Holmes and these criminologists used scientific methods to study criminal behaviour, the specific motives of individual criminals, and the methods used by criminals to perpetrate their crimes. They contributed to a growing body of literature. Holmes also applied what he called the science of deduction to crime scene analysis. In so doing, he bridged the gap between science and practise. Holmes was both a consulting detective and an applied criminologist. He has inspired and continues to inspire many criminologists, forensic scientists, criminal and victim profilers, and police, among others. Today, Holmes theory of deduction and methods of detection arguably fall under the umbrella of forensic criminology and its subset, forensic victimology, promoted by modern scholars such as Wayne Petherick and Brent Turvey. There are common concerns between social scientists and practitioners, and, like Holmes (as elaborated throughout this chapter), forensic victimologists bring science and practise together to better understand victims, crime, criminals, and forensic issues.

The Holmesian era The Holmesian canon gives an insight into the Victorian era. Watson yearns for “the glades of the New Forest or the shingle of Southsea” (Conan Doyle 1976, p. 201), or other places popular with Victorians able to afford to tour. Watson also describes the gas-lit streets, cluttered by hansom cabs on cobblestone streets, and smoke billowing from chimneys and trains, making pea-soup fogs even more murky. And, despite Holmes’s expression of despair when he did not have a crime to solve, crime was commonplace. Pickpockets and housebreakers frequented burgeoning London. Violence, as evidenced by ‘Jack the Ripper’ murders, was prevalent. Vagrants and beggars loitered in alleys. Vice, including child prostitution and opium dens, was readily available, and drunkenness was widespread. There was, particularly among the middle and upper classes, an ambivalence between public attitudes towards crime and individual attitudes. Victims could be demonised (see, for example, Rubenhold’s 2019 review of the lives of the women murdered by Jack the Ripper). The 1880s were also a period of social unrest in Britain, due mainly to the economic depression (Weller & Roden 1992, p. 25). Against this very real backdrop, fictional detective stories evolved (Werner 2014). Their popularity reflects the Victorians interest in criminal activity and in the ‘scientific methods’ of forensic investigation, as used by Sherlock Holmes. Holmes first appeared in an adventure titled ‘A Study in Scarlet’, which was published in 1887, the same year that the building of Norman Shaw’s Scotland Yard began. Ten years earlier, the official police detectives were tainted by accusations of entrenched corruption, which led to the ‘Trial of the Detectives’ and the restructuring of the Detective Department, which became known as the Criminal Investigation Department. This perhaps inspired Holmes to describe Lestrade and Gregson (who appear to have survived the purge following the trial) as “the pick of a bad lot”. These detectives from the yard are depicted as incapable and, at times, arrogant, and Holmes often bolsters their reputations. Holmes scepticism about the police’s capacity to solve crimes is, for some readers, as disconcerting as the philosopher Hume’s attack on causality. Yet here Hill’s (1978, p. 33) observation that “without a police force there can be no detective fiction” is apt. In ‘A Study in Scarlet’, Holmes is faced with a challenging and complex murder case involving a wedding ring, some pills, a pipe, several telegrams, and a mysterious inscription reading. Employing his unique methods and engaging in logical deduction, he unravels the “scarlet thread of murder running through the colourless skein of life”. Since then, Holmes has become renowned for his analytical skills, powers of thought and observation, which stand in vivid contrast to the “deficiencies”

Forensic Victimology: A Study in Criminal Victimisation 5

of the official police. Holmes discovered [lines] of investigation … missed by the police” (Conan Doyle 1976, p.102) and solved cases “abandoned as hopeless by the official police” (Conan Doyle 1976, p.11), as well as correcting their mistakes. Holmes was a man of science and an innovator of forensic methods. He was so much at the forefront of detection that he authored several monographs on crime-solving techniques, and he used methods years before they were adopted by police forces in Britain and places, like Australia and India, that inherited or adapted the British civil policing model introduced by Sir Robert Peel in 1829. Peel is also credited with devising the ‘principles of a modern (civil) police force’ (LEAP, no date). In summary, these are: 1. To prevent crime and disorder. 2. To gain and maintain public approval [and] public respect. 3. To secure the willing cooperation of the public in the observance of laws. 4. To constantly demonstrate absolute impartial service to the law. 5. To use physical force only when other means of persuasion are insufficient. 6. To uphold that the police are the public and that the public are the police. 7. To refrain from undermining the powers of the judiciary. 8. The test of police efficiency is the absence of crime and disorder. These principles feature variously in Holmes’ dealings. For example, in ‘The Adventure of the Cardboard Box’, Holmes says, “If she had been willing to help justice, she would probably have communicated with the police already” (Conan Doyle 1962, p. 58) And, in The Adventure of the Blue Carbuncle’, Holmes states that he is not the police, so he is not obliged to hand over the jewel thief, James Ryder. On releasing Ryder, he explains, “I suppose that I am commuting a felony, but it is just possible that I am saving a soul. This fellow will not go wrong again; he is too terribly frightened. Send him to gaol now, and you make him a gaolbird for life” (Conan Doyle 1976, p. 107). Arguably, Holmes’ decision to save Ryder’s soul and thus divert him from further crime is consistent with Peel’s primary goal of a modern police force, which is preventing crime (thus reducing victimisation), not catching criminals (i.e., those who victimise). Furthermore, Holmes’ decision brings to the fore the thesis advanced by many criminologists that non-custodial sanctions might, in sum, be less costly than imprisonment. Perhaps also, Holmes’ decision (and decisions he makes in other cases) suggest that police effectiveness ought not be gauged by the number of people arrested but rather by low crime rates, which are indicative of less victimisation. For too long, however, the apprehension and detention of offenders have been integral to criminal justice. To witness the state as investigator and prosecutor bring the wrath of the criminal law down upon those who violate that law is a central tenet of the ‘war on crime’. It is a ‘war’ that, according to Dubber (2002, p. 1), has been waged on behalf of victims of crime. Consequently, the victims’ rights movement became entangled in campaigns for mass incarceration and the re-introduction or continuance of capital punishment, including the death penalty. This condemnation of the victims’ rights movement is echoed by criminologists (Karmen 1992), legal commentators (Gruber 2020), and some victimologists (Fattah 1991). Notwithstanding, it has in many places not countered “the enormous power of emotional responses to victimisation” (Dubber 2002, p. 5). Rather than exploiting these emotions for political gain, a more rational set of responses is needed (Waller 2019). Maybe some of these responses can be found in the acquired knowledge on restorative practises—a topic for another chapter—but suffice it to say that these practises are evolving partly because there is a need for a more positive process than the criminal justice system, which, among other things, affords the victim participation and does not seek to coerce the offender by threat of incarceration (Dignan 2005; Dussich & Schellenberg 2010; see also Fattah 2000; O’Connell 2015a; Gorea 2021).

6  Forensic Justice Operating outside the criminal justice system, such as diverting offenders and addressing victims’ needs, was attractive to Holmes, who asserted that doing so might bring better outcomes for his clients and the public at large. Operating outside the system was possible because Holmes, the consulting detective, was paid by his clients (including monarchs and politicians as well as the working class), not the state, and his fee (if charged) was affordable to the victim. The original Bow Street Runners, who were a small plainclothes detective force, were likewise paid by clients, often the victims of crime, but these detectives were responsible to a magistrate (Fido & Skinner 2000; Cawthorne 2004), so they had to operate within the magistrate’s jurisdiction. Today, a similar tension arises in the debate on public policing versus private policing and the use of volunteers (such as Special Constables in England) to police communities. The modern diversification in policing had led to “an ever-extended ‘policing family” (Stenning 2009, p. 23), within which the public police “may come to be seen as an historical blip in a more enduring schema of policing as an array of activities undertaken by multiple private and public agencies and individual and communal endeavours” (Zedner 2006, p. 81). The implications of such a scheme for victims of crime, whose rights often extend only to their dealings with the public police, warrant further inquiry, but the scheme does present opportunities for a modern Sherlock Holmes, like that portrayed in the Sherlock series (Tribe 2014).

The modern civil police Although Holmes was frequently disparaging about the police, including detectives of the Yard, he does, in later cases, such as ‘The Three Garridebs’ (Conan Doyle, 1961), acknowledge the thoroughness and methods of the British police. Today, the police detective who investigates crime and arrests suspects has become iconic with a grand, romantic view of modern policing and, like Holmes, is popularised in fiction as well as true crime stories. Like Holmes, the modern detective (often assisted by forensic experts) collects clues from the crime scene, looks at a corpse, inquires about a stolen document, examines an envelope full of ‘orange seeds’ or a ‘lost hat’, and talks (but also listens) to victims and other witnesses as they work backward to deduce a probable solution or solutions. Perhaps the modern detective has learned to observe rather than merely see. Certainly, the modern detective has at hand an array of resources, including the forensic victimologist, who by “a scientific examination of victimhood and victimization [help the police and courts] to discover the truth” (Shiri 2019, p. 216). Furthermore, as forensic victimologists call it, ‘the victimology’ (i.e., information about a victim, their background, actions, and injuries) is a regular feature of criminal proceedings. The poor treatment that many victims receive after they report crimes to the police and enter the daunting, legalistic criminal justice system discourages their cooperation and that of the public. As a result, many are unwilling to participate as witnesses. Increased attention to the needs of victims has led some police services (no longer forces) to adopt a victim-centred approach to policing. Common among these police services is a commitment to reducing re-victimisation, improving services for those in need of assistance, and fostering confidence and trust. The underlying tenet of this approach is that victims need for assistance is central to policing. Key elements of victim-centred policing are compliance with human rights obligations, which include the rights of victims of crime; respectful delivery of effective police services that are responsive to victims’ needs; active referral to relevant non-police support services; provision of timely and honest information about the investigation and criminal justice process; and employment of procedures and practises to prevent secondary victimisation (Clark 2003).

Forensic Victimology: A Study in Criminal Victimisation  7

The Science of Deduction and the Scientific Method The classical sociologist Max Weber (2011) encouraged a scientific approach to sociological inquiry. He favoured an approach that generated its theory from rich, systematic, empirical, and historical research. Both Holmes and Weber suggest that emotional attachments hinder the objective method, but they also acknowledge that it is impossible to entirely discount the influence of value judgements. In The Sign of Four, for example, after Watson describes Holmes as an “automaton—a calculating machine,” Holmes responds, “The emotional qualities are antagonistic to clear reasoning.” (Conan Doyle, 1961) Hence, an exact science requires the investigator to be cold and unemotional, to be objective rather than subjective. Yet, contrary to the objective features of the criminal law (such as the threat of legal punishment), many potential and actual offenders make subjective appraisals of these features (see, for example, Grasmick & Green, 1980; Greenberg, 1981). It is therefore necessary, when tackling crime as a scientific interest, to also deal with spuriousness and uncertainty. In detail, this issue is largely omitted from Watson’s descriptions of Holmes’ science of deduction, but these descriptions should not be considered a grand synthesis of that science. Holmes was not merely ingenious but also scientific, and he rarely wandered far from science (Galchen 2022). He, like modern forensic scientists, knew the importance of the rigours of scientific methodology. He deplored the “shocking habit” of guessing, which he said was “destructive to the logical faculty.” He told Watson, “What is strange to you is only because you do not follow my train of thought or observe the small facts upon which large inferences may depend.” Throughout the Holmes stories, there is a constant tension between Watson’s sensationalism and Holmes analysis. Holmes often criticises Watson’s emotional storytelling. He accuses Watson of having a “fatal habit of looking at everything from the point of view of a story instead of as a scientific exercise, which has ruined what might have been an instructive and even classical series of demonstrations” (see ‘The Adventure of the Abbey Grange’ (Conan Doyle 1961). It seems that in ‘The Adventure of the Solitary Cyclist” (Conan Doyle, 1961), however, Watson resolves to give preference to those cases that derive their interest not so much from the nature of the crime as from the ingenuity and quality of the solution. Yet, even after this expressed preference, Holmes continues to insist that the process, the science of deduction, is more important than the solution. In some ways, this sensational versus factual tension mirrors that between victimology, the social science, and victimology, the social movement. Though this tension manifests at times in distinct narratives, when harnessed together, there have been remarkable successes in legal reforms and assistance programmes. There are international, regional, and domestic laws that proclaim the victim’s right to be treated with respect and compassion, to access justice, and in limited circumstances, to participate in criminal proceedings, as well as the right to access material, medical, psychological, and financial assistance. Notwithstanding, academics and social scientists often warn that these rights may survive at best as symbols unless properly evaluated. These academics and social scientists suggest that victim-centred policies have for too long been left up to the pressures of the victim movement, the whims of politicians, and the guesses of well-intentioned public servants. Evaluation, which has its roots in applied social science (Lewin 1951), is seen as a tool to improve decision-making and the outcomes for those affected by such decisions (Davidson, Koch, Lewis, & Wresinki 1981). The scientific method can be used in research, for example, to determine the relationship between crime and situational factors and to suggest intervention components that might be altered or applied to prevent crime. Holmes’ science of deduction involves observation, deductive (or analytical) reasoning, and scientific knowledge. He declares in A Study in Scarlet (Conan Doyle 1976), “… how

8  Forensic Justice much an observant man might learn by an accurate and systemic examination of all that came his way …” He elaborates, “[through] … reasoning … a momentary expression, a twitch of a muscle or a glance of an eye, [is all that is needed] to fathom one’s inmost thoughts …” In ‘A Study in Scarlet’, Holmes proffers, “From a drop of water … a logician could infer the possibility of an Atlantic or a Niagara without having seen or heard of one or the other.” Though he often refers to deduction (i.e., Theory to Hypothesis to Observation to Confirmation), Holmes also uses inductive reasoning (i.e., Observation to Pattern to Hypothesis to Theory). Holmes said, for example, “Most people, if you describe a train of events to them, will tell you what the result would be. They can put those events together in their minds and argue from them that something will come to pass. There are few people, however, who, if you told them a result, would be able to evolve from their own inner consciousness what the steps were which led up to that result. This power is what I mean when I talk of reasoning backward, or analytically” (Conan Doyle, 1961). In other words, it is possible to extrapolate from the information observed conclusions about events that have not been observed. In her essay titled ‘The Adventures of Sherlock Holmes: Detecting Social Order’, Jann (1994) explores Holmes’s deductive process and crime scene analysis. She points to the dependence on physical signs (e.g., physical evidence) in Holmes’s deductive process. The forensic victimologist, Turvey (2014), also mentions the importance of physical evidence, among other factors. He likens Holmes’ methodology to Behavioural Evidence Analysis. This modern criminological method is an “idio-deductive method of crime scene analysis and criminal profiling that requires the examination and interpretation of individual case-related physical evidence, victimology, and crime scene characteristics” (Turvey 2014, p.iv). Turvey and Petherick (2008) add victim profiling to the mix. Today, there is a broad consensus that the scientific approach promoted by Weber and Holmes is widely embraced by social sciences, including criminology and victimology (Petherick & Turvey 2008). • Empirically based on observation and logical analysis. • Theoretical (including summarising complex observations and devising propositions to explain relationships). • Accumulative knowledge (including theories that build on one another). • Published research findings for checking by other scholars (Weir 1991, p. 8). A proponent of forensic victimology, Turvey (2008, p.) describes the importance of the scientific method. He says it is, “… a way to investigate how or why something works, or how something happened, through the development of hypotheses and subsequent attempts at falsification through testing and other accepted means.” Like Holmes, forensic victimologists employ a structured process comprising observations, careful analysis, and critical thinking to tackle victimological problems and build knowledge. They develop testable hypotheses and test them with empirical rigour, resulting in scientific theories that, over time, can become scientific principles. For Holmes and the modern forensic victimologist, the science of deduction, grounded in scientific methods, is a sound approach to solving crimes.

The notion of the victim of crime Holmes was keenly interested in the study of crime. Crime, it is often said, is as old as humankind, but the notion of the victim of crime is, in relation to the history of humankind, a relatively new one. Hon’ble Dr. Justice A.S. Anand (1997), Chief Justice in India, commented that the term ‘victim of crime’ lacks “descriptive precision”. Understanding who is a victim is central to determining the scope of victimology (i.e., the study of victims).

Forensic Victimology: A Study in Criminal Victimisation  9

Wemmers (2009) notes that the word victim, which is derived from the Latin word victima, did not originally refer to humans but rather creatures sacrificed to a deity or supernational power. She explains that the word victim did not appear in the English language until 1497; however, it was not until about 1660 that the word was first used to describe a human who is injured, tortured, or killed. By the nineteenth century, the word ‘victim’ was widely connected with the notion of harm or loss (Spalek 2006). Consistent with the concept of the ‘ripple effect’ of crime, Hyde (1983) says everyone is a victim of crime, either directly or indirectly. Moreover, today, arguably, the word victim can be applied to any human that has been exposed to or experienced trauma (see, for example, Karmen 2013). Dineen (1996) warns that this distortion of the word is symptomatic of the psychologizing of victimhood by an industry that profits from such distortion. Bayley (1991) also contends that a culture of victimhood pervades Western societies, which can have significant ramifications. van Dijk (1999, p. 5), for instance, warns ‘vested professionals’ against fostering a ‘culture of therapeutics’, while Fattah (1999) says that zealots in the victim industry might be causing more harm than good. It is, however, the notion of the victim of crime that dates from the mid-17th century and, 150 years or so later, features in many of Watson’s accounts of Sherlock Holmes exploits. Perhaps the most prominent exception is in ‘His Last Bow’ (Conan Doyle, 1962), when a thoughtful Holmes foresees that an “east wind coming … such a wind as never blew on England yet. It will be cold and bitter, Watson, and a good many of us may wither before its blast”. He also predicts that after the devastation, “a cleaner, better, stronger land will lie in the sunshine”. In other words, a war will affect many, but when it is over, these victims will likely start the healing process to become survivors with a sense of peace in their lives. The ‘ideal’ victim is a person who is perceived to suffer harm unfairly or undeservedly, so attracts much sympathy and generates such social concern that the person is readily given the status of a victim (Christie 1986; see also Bayley 1991). The ‘ideal’ or ‘deserved’ victim has repeatedly been used to justify law reform, some of which might not be genuinely justified, and to influence the funding for victim assistance, which might not necessarily meet victims’ actual needs. Holmes challenges the ideal, though he does distinguish the deserved from the under-deserved; he rebuked aristocrats and plutocrats when he believed they had behaved inappropriately or improperly; he supported people who were low-down in the social scale; and he showed sympathy for mixed marriages as well as female victims of domestic violence. Like the forensic victimologist of today, he could construct a profile of the victim. Holmes mostly relied on idiographic profiling but sometimes used nomothetic profiling. Turvey (2013) explains that an idio-deductive method of crime scene analysis and victim profiling “requires the examination and interpretation of individual case-related physical evidence, victimology, and crime scene characteristics”. Alternatively, nomothetic profiling seeks to make generalised rules from specific cases (Jann 1996). Forensic victimologists use both. No matter the victim’s status, once he agrees to accept a case, Holmes becomes the victim’s ally, placing all his knowledge, skill, and experience at the victim’s disposal. For example, in “A Case of Identity” (Conan Doyle, 1961), Watson points out to Holmes how common an occurrence domestic violence was by picking up a newspaper and pointing to “… the first heading to which I come. ‘A husband’s cruelty to his wife.’ There is half a column of print, but I know without reading it that it is all perfectly familiar to me. There is, of course, the other woman, the drink, the push, the blow, the bruise, the sympathetic sister, or landlady. The crudest of writers could invent nothing more crude.” Furthermore, in ‘The Adventure of the Abbey Grange’ (Conan Doyle, 1961), Holmes treats the victim, Mary Brackenstall, with sympathy. He also observes small details at the crime scene, such

10  Forensic Justice as three wine glasses, that raise questions for him. He tells Watson, “I simply can’t leave that case in this condition. Every instinct that I possess cries out against it. It’s wrong—it’s all wrong—I’ll swear that it’s wrong. And yet the lady’s story is complete, the maid’s corroboration was sufficient, the detail fairly exact. What have I to put up against that? Three wine glasses, that is all.” His insistence that the evidentiary details should be accounted for propels him to discover the truth that Lady Brackenstall has been living in fear of her alcoholic, abusive husband throughout her marriage. As Morris observes, Holmes decision to shield Lady Mary and her lover “is a direct condemnation of the injustices women suffer from abusive men and rigid social codes.” Holmes not only draws attention to the direct victim but also draws attention to structural issues, such as the social and legal status of women in marriages and the severity of laws about domestic violence and divorce, which are issues associated with, among other schools of thought, feminist criminology and victimology. Among these feminists are those who study the cultural, social, and economic circumstances that underlie crimes against women, including patriarchy and sexism (Gruber 2020; see also Fattah 1991 on structural victimisation). There is some debate as to where the victim of crime sits in the social sciences dealing with crime. Schneider (1987: 87–8, cited in Kirchhoff 1994: 17) states that the victim of crime is ‘an independent dimension of criminology’, and asserts that victimology is ‘a part of criminology’. Kaiser (1994: 104) likewise writes about a ‘victim orientation in criminology’, but others posit that criminological studies centre on the criminal, the crime and its causes, and the effects of the criminal justice system on the offender (O’Connell 2004; O’Connell & Hayes 2019). Criminal victimology, however, explores, among other things, the effect of crime and the criminal justice system on the victim (Karmen 2013). This debate re-emerges later in this chapter; at this juncture, it is appropriate to explore the relevance of the victim to Holmes’ approach to solving crimes. In the modern BBC series ‘Sherlock’, Holmes demonstrates how knowing the victim and knowing the victim well can help solve a case. In ‘A Study in Pink’ (Tribe 2014), on examining the victim, he states, “She’s been married for at least ten years, but not happily. She’s had a string of lovers, but none of them knew she was married.” Detective Inspector Lestrade of Scotland Yard challenges Holmes to explain, which he does. “Her wedding ring, ten years old at least. The rest of her jewellery has been regularly cleaned but not her wedding ring.” He continues, “The inside of the ring is shinier than the outside; that means it’s regularly removed. The only polishing she gets is when she works it off her finger. It’s not for work, look at her nails. She doesn’t work with her hands; so, what, or rather who, does she remove her rings for? Clearly not one lover – she’d never sustain the fiction of being single over that amount of time – so more likely a string of them. Simple.” Holmes brilliance (to paraphrase Watson) demonstrates what Turvey (2009) states is an imperative—that is “… to accurately, critically, and objectively describe the victim to better understand victims, crime, criminals, and forensic issues.” In the analysis of crime scenes, therefore, crime scenes are not just the physical or virtual space; rather, the victim, like the criminal and other witnesses, is an integral actor (Osterburg & Ward 2010). Reflecting on modern crime scene analysis, however, Turvey (2014) claims that victim information is often not properly taken and explored by those attending a crime scene and/or reviewing the evidence gathered at a crime scene. He notes that while investigators gather the basic data, they fail to know the victim, as did Lestrade in the example above. Instead, writes Turvey (2014), investigators should seek “to examine, consider, and interpret victim evidence to understand and answer investigative questions”. Taking the victim, plus all other factors, into account should provide direction for the ongoing investigation and resolution (Turvey & Crowder 2017). A thorough crime scene analysis is central to the applied victimology known as forensic victimology, as elaborated on elsewhere in this

Forensic Victimology: A Study in Criminal Victimisation  11

chapter, which is seen by its proponents as a sub-set of Forensic Criminology, which is itself a sub-set of criminology.

An Emerging Criminology In the 1700s, Beccaria (often said to be the ‘father of classical criminology’) wrote a series of essays on crime and punishment. He opposed torture and capital punishment and deplored the abuse of power, which he identified as a source of victimisation. Kirchhoff (2007) refers to Beccaria in his challenge to those who assert that criminologists did not consider the victim until the 1940s, when criminologists, including Beniamin Mendelsohn (1940; 1956) and Hans von Henting (1940; 1948), began to examine the reciprocal relationship between the victim and the criminal. Whatever one’s opinion on this point, it is evident that criminologists in the Holmesian era did consider the victim, albeit cursory to their primary interests. In this regard, the criminologist Barzilai (1883) argued that as well as concern for those accused of committing crime, “the freedom and life of the victims have also risen in value in our time”. Notably, like Holmes but in a different context, Ferri (1905; 1917) argued that establishing the substantive truth in relation to crime and an accused’s responsibility should be based on scientific methods used during investigative and other procedural actions. Furthermore, whether a person is found guilty or not should not be a matter of chance. In addition, he argued that if the state failed to protect the interests of the victim, there was a possibility that the victim would resort to their own “sword of justice” because of their emotions. Ferri also commented on the advent of private detectives as indicative of the impotence of the police and other law enforcement institutions that were unable to cope with their official obligations. He concluded that should the victim’s rights be fulfilled and their legitimate interests in the criminal process protected, there would be no need for private detectives. According to MacDonald (1971; see also Garland 1985), criminologists’ exploration of the characteristics of victims, in particular homicide victims, that began in the early 1900s continued into the 1920s and 1930s as criminology evolved as a social science. In the 1930s, for example, Bender and Blau’s (1937) research on children as victims of sex offences went beyond the characteristics of children. They drew attention to the reactions of children who have experienced actual sex relations with adults. Contrary to what is now known about the impact of childhood sexual abuse, the cohort of children in Bender and Blau’s sample showed less evidence of fear, anxiety, guilt, or psychic trauma than might be expected and instead “frequently exhibited either a frank, objective attitude, or they were bold, flaunting, and even brazen about the situation” (p. 500).

Advent of victimology The interest within criminology in the role of victims in ‘precipitating’ crime (a term devised by Wolfgang in 1957), which gave rise to the concept of a science of the victimal (i.e., victimology), was prompted by the work of Beniamen Mendelsohn and Hans von Hentig. Both, though from differing perspectives, took the victim as one of the causative elements or determinants of crime. They did not address the needs and rights of victims, which are issues that have gained prominence in the victimological field since the 1960s. After conducting interviews with witnesses, Mendelsohn (1940) noted that victims and offenders often knew each other. Drawing on his legal knowledge of accidents, negligence, proneness, and other degrees of civil liability, he differentiated victims in relation to their degree of culpability for their victimisation. Mendelsohn’s thesis has since served as evidence for the concept of victim

12  Forensic Justice precipitation (i.e., there are situations in which victims initiate actions leading to their harm or death) (Daigle, 2017). Mendelsohn was not the first to use the term victimology (Wertham 1949), but he was the first to encourage the study of the victims, the opposite side of the coin to the study of the criminal. Several decades later, he proposed that victimology should not be confined to the study of victims of crime but rather should be a global science on the study of all forms of victimisation (Mendelsohn 1963). In a chapter on the contribution of the victim to the genesis of crime, von Hentig introduced the duet frame of crime (von Hentig 1979; see also 1940, 1948). Hentig criticised the static and unidimensional nature of criminology and urged equal attention be paid to victims. He queried why sociologists, criminologists, and others of that era failed to see the victim’s role in the doer-sufferer relationship. In many instances, he asserted, the victim “shapes and moulds the criminal” (1979, p. 384). His research led him to devise a typology that, by virtue of its structural characteristics, revealed why some people were more likely to be victimised than others. However, his surmise on the characteristics of a typical victim (i.e., the characteristics that increased the risk of victimisation of that person) has been criticised as victim blaming. Furthermore, because much of von Hentig’s conclusions are founded on information anecdote and unstructured observations, his theory is not empirically sound. Yet, Wolfgang (1978, p. iii) states, “von Hentig, more than anyone [at that time], wrote tellingly in theory about the role of the victim and the duet of crime”. von Hentig’s duet frame of crime is buttressed by Ellenberger’s (1956) later notion of the victim and the offender as the “penal couple” (see also Mendelsohn 1956). Moreover, Wolfgang’s research on homicide (1957) and Amir’s research on rape (1967, 1971) gave credence to Mendelsohn’s and von Hentig’s assertions. Wolfgang found that in 26% of all homicides in Philadelphia between 1948 and 1952, the victim was the precipitator. He also found commonalities between these murders, including a prior relationship between victim and offender, the shared gender of both parties, and the consumption of alcohol. In addition, he concluded that many of these murders began as minor altercations (Wolfgang, 1967). Amir (1967) studied rape cases, and he too found victims were not always passive actors. He suggested that by dressing provocatively or pursuing a relationship with a perpetrator, the victim contributed to their victimisation. Wolfgang’s study did not attract the fury of feminists and victim advocates as did Amir’s (1967, 1971) study on rape victims. Amir does not tackle the myths about men’s ‘rights’ in sexual encounters or the differences in physical strength between men and women. Considering such factors, a verbal altercation, as recorded by the police, might be a woman’s attempt to ward off a sexual attack rather than provoke violence. Amir might be looked upon as a victim-blamer, but in practise, he set up the first course on victimology at Berkley University. In the 1960s, Fattah (1967) theorised on the extent to which victims participated in their victimisation. Like Mendelsohn and von Hentig, Fattah devised a typology. He concluded that some victims are non-participating, whereas others are false victims (that is, they are not victims, or they are victims of their own actions). Also in the 1960s, Shafer (1968) wrote that victims had a ‘functional responsibility’ that obligated them to not provoke others into victimising them. He also argued that victims had an obligation to mitigate their risk of victimisation. He developed a typology ranging from the unrelated victim to the precipitative victim to explain the varying degrees to which victims did not, or did not, share responsibility for their victimisation. Critics claim that, like Mendelsohn and von Hentig, Shafer’s theory might appear reasonable given the nature of law (Walklate 2007), but it also “suffered from a lack of organised imagination”. Taylor (1976) also points out that these early studies relied on ‘police data’ or ‘recorded crime’, so the samples were seriously unrepresentative, hence calling into question the ‘duet frame’, victim culpability, and shared responsibility. Potentially, these theories are “dangerously misleading” (Taylor

Forensic Victimology: A Study in Criminal Victimisation  13

1976). Conversely, as crime victim surveys became more prominent and regular, a critical gap in knowledge about victims began to be filled. These surveys afforded researchers data on victims’ experiences, whether they had reported the crime or not. Analysis of the data unearthed findings on the extensive nature of victimisation, its prevalence, and effects, and confirmed that many victims are reluctant to report crime (Davies, Francis, & Greer, 2017). Sparks (1981) analysis of crime victim survey data, for instance, led him to identify groups at risk (Bracey 1990). He explored the actions, attributes, and social situations of victims and offered explanations for why some victims are prone to victimisation. Concepts of victim precipitation and victim proneness laid the foundation for ‘positivist victimology’ (Meirs 1989) and contributed to the formulation of the ‘lifestyle exposure theory’ of criminal victimisation (Gottfredson 1981). Hindelang, Gottfredson, and Garofalo (1978), in their ‘lifestyle-exposure’ theory, acknowledged that some situations are more dangerous than others, and individuals whose activities or lifestyles put them in these situations are more likely to be criminally victimised. The more time individuals spend in these situations, the greater the risk of victimisation (Felson 1998). In sum, therefore, the lifestyle theories suggest that people’s behaviours, including their habits, increase the risk of victimisation by, among other things, increasing their exposure to criminal offenders. Cohen and Felson’s (1979; see also Felson 1979) routine activities theory is another that considers contextual and individual variables. It requires that for the occurrence of crime, there must be, at minimum, the convergence of the potential victim and offender in a social context. These theories of victimisation identify those factors that determine the selection of the victim and enhance the potential victim’s exposure to risky, or vulnerable, situations. The value of these theories also rests on their recognition of how the activities of everyday life create opportunities for motivated offenders. Although these theories incorporate victimological concepts, they are not uniquely victimology theories. Moreover, like some of the earlier victimisation theories, they lack theoretical precision (Miethe & Meier 1994, p. 5). And, in light of what is currently known about the causes of crime, these theories seem more aligned with the burgeoning disciplines of criminal justice (Masters, Way, Gerstenfeld, Muscat, Hooper, Dussich, & Skrapec 2023), which includes crime prevention, and the less known criminalistics (Saferstein 2014), which focuses on discovering how and why crimes occurred and who was responsible. In recent years, the concepts of victim precipitation and proneness, as well as life-style theories, have had a resurgence in interest among forensic victimologists (Petherick, Kannan, & Brooks 2020; Petherick 2017; see also Karmen 1979, 1980), which is the study of a victim of crime, including examination of their demographic features, personality traits, sources of risk, lifestyle, and routine, among other victimological factors. As Ferguson and Turvey (2017, p. 11) observe, “The type of crime often fits the behaviour that provoked it”. Consistent with von Hentig but contrary to Mendelsohn, forensic victimologists identify victimology as a subdiscipline of criminology rather than a unique discipline or science. They acknowledge, however, that there are different perspectives on the scope of victimology. Ferguson, Petherick, and Turvey (2010), for example, distinguish general victimology, interactionist victimology, and critical victimology.

The status of victimology Victimology has been responsible for expanding knowledge focusing on the victims of crimes. Since the 1970s, greater investment has been made in seeking ways to prevent victimisation and mitigate the causes of secondary victimisation. While the victim’s role in crime remains important,

14  Forensic Justice academics, criminal justice practitioners, and victims themselves have shown interest in alleviating the harm done and improving the treatment of victims, as well as enhancing society’s reaction to victimisation. Studies repeatedly show that victims, particularly victims of sex offences and human trafficking, are reluctant to report crimes. If they do, they will face many challenges after they enter the criminal justice system. Not everyone they expect to help them does so, which is one of the reasons for the so-called ‘second injury’. Proclamations on victims’ rights are among the steps taken to address the risk of a second injury (O’Connell 2004; O’Connell & Hayes 2019). Studies also show that victims require a range of assistance: practical, material, medical, psychological, and financial. In many developed countries, dedicated victim support services, often established initially by victims, have attracted government funds, and the reliance on volunteer selfhelp has been replaced by professionals from fields such as social work and psychology (O’Connell 2015b). Whether these support services match victims’ needs can be contentious. Crime victims’ rights instruments are common, although too many victims do not have their rights fulfilled. As these developments have occurred, victimology has evolved. Although there are some who still limit its scope solely to the study of victims of crime (see, for example, Anttila 1974; Fattah 1991), there are others who do not. Victimology, for instance, is linked to human rights (Elias 1986; Gorea 2021). It is, says Walklate (2012), “an eclectically informed meeting place for academics, practitioners and policy makers who share a common concern for the victim … and the processes associated with victimhood”. Consequently, it is multidisciplinary and interdisciplinary. It can also be viewed as a fully-fledged academic social science or as a non-academic social movement (backed by some research) (O’Connell 2008). In this broad victimological field, forensic victimology exists as a subdivision (Fernando & Nair 2018), a sub-division that traverses the victimology-criminology divide.

Forensic Victimology Interest in forensic victimology has surged in recent years, primarily due to such television programmes as ‘Criminal Minds’, where profilers have an almost psychic ability to give elaborate personality and behavioural descriptions of victims and suspects. These profilers frequently refer to ‘the victimology’, which is a term associated with forensic victimology. In the non-fiction world, academics such as Turvey and Petherick (2008) combine case stories with applicable theories in their endeavours to vehemently promote forensic victimology and make it comprehensible to nonscientists, for example, police officers and judicial officers. The forensic victimologist objectively studies the victim or victims to discover clues and information about the offender’s opportunity and selection process. In practise, the forensic victimologist seeks to contextualise the allegations of victimisation and confirm or refute them. They also examine the victim and the harm, or loss, suffered (Biles 2009). To assist the investigator, the forensic victimologist develops an understanding of the offender’s motive and method of offence, which helps the investigator establish a pool of suspects. The forensic victimologist, as did Holmes, views human behaviour from multiple angles. Both recognise the complexity of human motives and behaviour. Furthermore, both explore other cases— unsolved and solved—for the purpose of identifying links between them. Proponents of forensic victimology, Petherick et al. (2020), state that a thorough and impartial analysis should not exclude victim precipitation. To do so, they claim, would have a negative impact on the conclusions derived from the analysis. It is incorrect and biased to assume that the victim played no part in their demise. The proponents’ disdain that they are resorting to victim-blaming

Forensic Victimology: A Study in Criminal Victimisation  15

Furthermore, drawing also on lifestyle and situational theories, Turvey and Petherick (2010) assert that the level of exposure (e.g., the amount of contact or vulnerability to harmful elements experienced by the victim) is a reliable measure in determining the victim-offender relationship, lifestyle exposure, and situational exposure, which are necessary to obtain an understanding of how they came to be victimised. By revisiting victim precipitation and these theories, Turvey and Petherick (2008; see also Turvey 2013) have devised a typology that categorises victims into low, medium, high, and extreme exposure levels, which they say helps others’ understanding of the role lifestyle, opportunities provided by victims, and situational factors play in the risk of victimisation. One of the most contentious issues in forensic victimology is victim profiling. Profilers’ primary objective is to understand a crime from both the victim’s and the offender’s perspectives. For this purpose, they use a set of approaches and techniques to predict the characteristics of the suspect or suspects by analysing the evidence obtained from a crime scene (see below) (Muller 2000). Despite advances made in victim profiling, it is still problematic, a point revisited below. Profiles are not always accurate, and the information derived from them is not always reliable. Forensic victimology has been applied to conventional violent crime, intimate partner violence, sexual violence, workplace crime, and transnational organised crime (e.g., trafficking in human beings). In a scientific manner, it addresses challenges in the verification of facts presented in investigations and court proceedings (Bhadra & Nair 2021). It is not limited, however, to use in criminal investigations and the resulting criminal proceedings; rather, it also serves a role in civil litigation (Turvey 2013). Given the diversity of functions forensic victimologists undertake, it is no surprise that there is also diversity among those who fall under its umbrella. Academics, forensic crime scene examiners, sexual assault nurse examiners (SANE), and forensic psychologists are among those who identify as forensic victimologists. Because virtually all inter-personal crimes involve the alteration and transfer of materials, forensic crime scene examiners and SANE know the high evidentiary value of the collection and preservation of crime scene evidence. Often, this evidence is the primary means to establish the identity of suspects or determine the circumstances of a crime. Academic proponents of forensic victimology and some forensic psychologists are wary of attempts to pathologise the normal reactions of victims. These pathologies include child abuse syndrome, battered woman syndrome, and rape trauma syndrome. Dineen does not deny the existence of these syndromes but points to what she sees as an overwhelming tendency to pathologise and psychologise normal reactions resulting in ‘manufactured victims’. As Des Pres (1976, p. 157) aptly observed, “Attempts to interpret the survivor’s experience—to see it in terms other than its own—have done more harm than good.” Forensic victimologists also claim to expose falsities in victims’ statements and to identify ‘counterfeit’ victims (Dineen 1996), but also to buttress support (including compassion) for genuine victims. They also claim to expose falsities in the accused person’s statements and to prevent miscarriages of justice. Using case examples to illustrate their expertise, Petherick and Turvey (2010) and their colleagues assert that their expert reports on victimology’ have solved unsolved crimes and prevented injustices to both victims and accused persons.

Critique of forensic victimology It is too simplistic to say people become victims because victimisers choose to act in victimising ways. It is important that theories of victimisation focus on the acts and omissions of all parties to crime events. There is an overlap between those who become victims and those who become

16  Forensic Justice offenders. Theories that divorce the victim and the offender potentially distort reality. According to Fattah (2000, p. 39), the “dominant view in victimology of a bad offender and a good victim, of an innocent victim and a guilty criminal [should] give way to the more realistic and defensible view of two human beings caught in a web of intricate social relationships and human emotions.” He therefore advocates for a realistic victimology. Turvey and Petherick (2008) and Turvey (2013) assert that forensic victimology is a genuine move towards a realistic victimology. It shifts victimology from the theoretical study of victims to an applied scientific discipline that helps solve criminal victimisations and tackle legal questions. That forensic science revisits the early victimological theories leaves it open to accusations of victim blaming. Victim precipitation, for instance, remains a controversial theory because of its assertion that victims sometimes initiate actions that lead to their harm or loss. Yet, argues Petherick (2017), “It is important to study because research shows that it happens with some frequency and therefore cannot be ignored simply because it is distasteful”. By employing scientific principles and utilising scientific methods, it might be possible to negate the criticism and avoid the perceived ‘demonisation’ of victims. Conversely, its utilisation to reveal victim deception and false reporting has the potential, should a forensic victimologist ever err, to cast an unwanted, discrediting spotlight on the entire sub-discipline. Forensic victimology is moulded by its terms of limited kinds of victimisation, particularly crime. It is “the study of victims for the purpose of addressing investigative and forensic issues” (Turvey 2013, p. xi). It therefore complements the diagnostic and preventive aims of criminal, or penal, victimology. Though the principles and methods of forensic victimology have been applied to a variety of interpersonal crimes, their capacity to explain victimisation from a diversity of other sources of victimisation is untested. This is not to say that its principles and methods cannot be applied more broadly. Sheleff and Shickor (1980), for example, explain how victimological knowledge on by-stander involvement can assist criminologists in analysing an incident, such as the role of bystanders in genocide (Grunfeld, Vermeulen, & Krommendijk 2014) or a terrorist attack (O’Connell 2019). It might, however, be found that forensic victimology does not satisfactorily deal with the conception of victimisation in terms of social harm. Instead of individual-based harms, social harm also covers harms caused by nation-states (e.g., state terrorism) and political regimes (e.g., ideologically driven victimisation), corporations (e.g., environmental degradation), and white-collar offenders (Hillyard et al. 2004), as well as institutional harm such as that attributable to the criminal justice system. Furthermore, some of these harms are associated with, or consequential to, acts or omissions that are blatantly wrong but not yet considered crimes (Hillyard & Tombs 2007). Profiling is one of the techniques associated with forensic victimology. Although proponents of forensic victimology emphasise that it is an applied science, victim profiling is not a science but maybe an art (Cook & Hinman 1999; Muller 2000). The scientific validity of a profile is challenged by those who argue that it is mainly based on guesswork, something Holmes said he never did. For example, Snook and others (2008) state that profiling might be an illusion that has neither sound theoretical grounding nor strong empirical support. Different profilers viewing a crime scene and analysing evidence can reach different profiles. Consequently, if victim profiling generates inaccurate or misleading information, it can misdirect investigations. Over-generalisations and stereotyping, as well as insufficient interpretative capacity, can also influence the accuracy of victim profiling (Kocsis, 2007). Furthermore, Pinizzotto and Finkel’s (1990) research indicates that the accuracy of different profilers varied depending on the case investigated. The criminologist Clifford (1978) suggested that the beneficiaries of crime control and crime prevention are not always those intended. On closer examination, as Holmes might do, victims

Forensic Victimology: A Study in Criminal Victimisation  17

might not always be the beneficiaries of forensic victimology. Though arguably its application improves the investigation of crime, the beneficiaries might be the police and other law enforcement agencies. Forensic victimology complements the crime-fighter model in policing rather than the police as a service model. It might assist prosecutors and courts, but unless myths and rhetoric connected with the nature and causes of victimisation are dispelled, the treatment of victims is unlikely to improve. Conversely, Turvey (2013) has explained how forensic victimology can dispel some of the uninformed notions about who is involved and why in the trafficking of human beings (e.g., how victims are forced to provide sexual services against their will and are unable to refuse violent or unsafe practises). He adds that dispelling these notions and tackling myths, among other positive activities, helps authorities, such as the police and prosecutors, better understand sexual victimisation. Victims should also benefit from steps taken to mitigate ‘risk factors’, which are integral to preventing victimisation. They may also benefit in criminal proceedings from the corroborative and explanatory testimony (including medico-legal reports) of forensic experts. Whether forensic victimology is victim-centric is, therefore, open to challenge and subject to perceptions. On balance, however, it does fulfil the tasks of victimology: • To diagnose a situation • To interpret the situation • To suggest ways of creating desired situations • To prevent undesired situations (Holyst 1982) And, to the extent that forensic professionals, such as sexual assault nurses, provide medical and psychological assistance, the scope of forensic victimology is adequate to minimise the effects of the crime on the victim (which is a task suggested by van Dijk and Groenhuijsen (2017)).

Crime Scene Analysis The ultimate objective of a criminal investigation is to present to a court both the evidence and the suspect (i.e., the accused person). The success or failure of this effort is closely related to the actions of the police investigator and/or crime scene examiner at the crime scene. According to Turvey and his co-author, Crowder (2017), a comprehensive crime scene investigation, which requires a thorough gathering of the physical evidence as well as observations (or, as Holmes said, keen observations), coupled with the victimology, should provide direction for the ongoing investigation and resolution. Turvey (2013) claims that those attending a crime scene do not always properly collect and explore victim information, so they fail to know the victim. Hence, they do not have the information needed to answer all investigative questions or to fulfil the victim’s right to access to justice. In the investigation of rape and other sex offences, where independent witnesses are seldom available, physical evidence can be crucial because conviction solely on the testimony of the victim is rare. Holmes also recognised the importance of a thorough crime scene investigation. When Holmes investigates the crime scene at the Boscombe Pool in the Boscombe Valley Mystery (Conan Doyle 1961), Watson observes that Holmes “was transformed when he was hot upon such a scent as this,” and Holmes warns, “The more featureless and commonplace a crime is, the more difficult it is to bring home.” Moreover, adds Holmes, “There is nothing more deceptive than an obvious fact.” Elsewhere in the canon, he warns of the risk of relying on circumstantial evidence, which may be misleading. Throughout the entire canon of Holmes stories, there are references to elements of crime scene analysis that are commonplace today, many of which are also mentioned in texts on forensic

18  Forensic Justice victimology. In ‘A Study in Scarlet’ (Conan Doyle, 1974), Holmes uses footprints to help him identify the culprit. He also celebrates a test to identify bloodstains. A blood stain obtained from the victim and the suspect may provide the necessary link to secure the chain of evidence against the victimiser. Yet, the finding of bloodstains at the scene of a crime of violence may be perceived as so routine that it may convey little significance to the unimaginative investigator. In the Sign of Four (Conan Doyle, 1974), he points to the value of fingerprint evidence, which today is accepted as a common form of identification. In A Case of Identity (Conan Doyle, 1961), Holmes shows the idiosyncrasies of a typewriter to be integral to solving the crime, and in The Adventure of the Reigate Squire (Conan Doyle, 1961), he analyses handwriting to solve the crime. In The Adventure of the Dancing Men (Conan Doyle, 1961), Holmes successfully uses cryptology to decipher the ‘dancing men’ and solve the mystery. In addition to physical evidence, Holmes, like the forensic victimologist, was aware that vital information could be gleaned from the study of the victim. By analysing crime scene evidence, they develop victim and criminal profiles to, among other tasks, narrow down suspect lists.

Conclusion Holmes bridges the fictional world with the real world of crime and criminal justice, while forensic victimologists bridge the theoretical world with the applied world of victimology. Just as Holmes introduced Scotland Yard and other police crime scene analysis and forensic science, today forensic victimology introduces “criminal investigators to the idea of systematically gathering and examining [among other factors] victim information for the purposes of addressing investigative and forensic issues.” In the 1940s, the notion of the victim as a contributor to his or her demise fuelled the concept of victim precipitation, which on the one hand drew praise for improving understanding of the criminal event and how to prevent such victimisation and, on the other hand, drew condemnation as victim-blaming. Notwithstanding the condemnation, Mendelsohn, Von Hentig, and other early victimologists understood that studying victims was necessary to explain crime properly and comprehensively. They showed (not always in empirically sound ways) that it is too simplistic to say people become victims because victimisers choose to act in victimising events. Rather, it is important that theories of victimisation focus on the acts and omissions of all parties to crime events. Since then, an array of victimological theories, largely under the auspices of criminology, have been promulgated. Lifestyle theory and routine activity theory, for instance, are prime illustrations of how the original ‘victim-causation’ notion has developed into ‘victim proneness’ and ‘victim vulnerability’. Although these theories embody victimological concepts, they are not purely victimological. Read today how they complement elements of the case for forensic victimology in addition to criminal justice and criminalistics. In the 1970s, the focus shifted to studies on the harm suffered by victims and their experience of criminal justice systems. Such studies drew attention to, among other concerns, secondary victimisation, which is the harm caused by those who respond ambivalently to the victim or even treat them with disdain. Victimological studies have also consistently shown the victims want to have a say in decisions that affect them and, for this purpose, require legal assistance; they require support services that match their needs; and they want reparations, including offender-paid restitution and, when that is not available, state-funded compensation. Such findings, coupled with victims’ activism, have fuelled the victims’ movement. As victimology has evolved, so has its scope expanded. The victimological field now has many sub-divisions, and one of these is forensic victimology. A key feature of this sub-division is an

Forensic Victimology: A Study in Criminal Victimisation  19

applied scientific method to explore the dynamic interaction of the criminal-victim dyad. The forensic victimologist objectively studies the victim to address investigative and forensic issues. They realise the value of ‘the victimology’. One of the practises integral to victimology is victim profiling. However, despite advances made in victim profiling, it is still problematic, a point revisited below. Profiles are not always accurate, and the information derived from them is not always reliable. Forensic victimologists also seek to dispel myths about victims and improve outcomes for genuine victims, while also exposing those who falsely purport to be victims. As well, they seek to expose falsities in confessions but also to protect the innocent by uncovering miscarriages of justice. Though television and film often sensationalise forensic victimologists’ work, the non-fictional scientists conduct research, and their research contributes to improving understanding of criminal victimisation. Although forensic victimology is not without its criticisms, the fact that it does have value in a victimological sense suggests it will be embraced and advanced by some of the next generation of victimologists. They will tackle criminal victimisation in scientifically sound ways, so the body of victimological knowledge grows and, among other positive outcomes, the promise of victims’ rights might be fulfilled, including their right to genuinely access justice.

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Forensic Victimology: A Study in Criminal Victimisation  21 44. Fido, M. & Skinner, K. (2000). The Official Encyclopedia of Scotland Yard: Behind the scenes at Scotland Yard. Revised edition. London, UK: Virgin. 45. Galchen, R. (2020). Sherlock Holmes, Scientific Detective. The New York, January 31. Online https://www. newyorker.com/culture/culture-desk/sherlock-holmes-scientific-detective 46. Garland, D. (1985). The criminal and his science. A critical account of the formation of criminology at the end of the nineteenth century. British Journal of Criminology, 25(2): 109–137. 47. Goodey, J. (2005). Victims and Victimology. Research, Policy and Practice. Essex: Pearson Longman. 48. Gorea, R.K. (2021). Basics of Victimology for Medical Personnel. International Journal Ethics, Trauma Victimology, 7(2): 1–5. 49. Gottfredson, M.R. (1981). On the Etiology of Criminal Victimization, Journal of Criminal Law and Criminology, 72: 714–26. 50. Grasmick, H.G. & Green, D.E. (1980). Legal punishment, social development and internalisation as inhibitors of illegal behaviour. Journal of Criminal Law & Criminology, 71(3): 325–335. https:// scholarlycommons.law.northwestern.edu/jclc/vol71/iss3/11 51. Greenberg, D.F. (1981). Methodological issues in survey research on the inhibition of crime. Journal of Criminal Law & Criminology, 72(3): 1094–1101. 52. Gruber, A. (2020). Feminist War on Crime: The unexpected role of women’s liberation in mass incarceration. California: California University Press. 53. Grunfeld, F., Vermeulen, W. & Krommendijk, J. (2014). The Failures of Bystanders to Prevent or Stop the Genocide in Rwanda. Online https://www.e-ir.info/2014/05/08/the-failures-of-bystanders-to-prevent-orstop-the-genocide-in-rwanda/ 54. Hentig, H. V. (1949). The Criminal and his Victim: Studies in the Sociobiology of Crime. New Haven: Yale University Press. 55. Hentig, H.V. (1979). The Criminal and his Victim: Studies in the Sociobiology of Crime. New York: Schocken Books. 56. Hill, R. (1978). Holmes: The Hamlet of Crime Fiction. In H.F.R. Keating (ed.) Crime Writers. London, GB: British Broadcasting Corporation, pp. 20–41. 57. Hillyard, P. & Tombs, S. (2007). From ‘crime’ to social harm? Crime Law and Social Change 48(1): 9–25. DOI: 10.1007/s10611-007-9079-z 58. Hillyard, P., Sims, J., Tombs, S. & Whyte, D. (2004). Leaving a ‘Stain upon the Silence’: Contemporary Criminology and the Politics of Dissent. The British Journal of Criminology, 44(3). DOI: 10.1093/bjc/ azh024 59. Hindelang, M.J., Gottfredson, M., and Garofalo, J. (1978). Victims of Personal Crime. Cambridge, MA: Ballinger. 60. Holyst, B. (1982). The scope, tasks, and aims of penal victimology. In H. J. Schneider (ed.), The Victim in International Perspective. Berlin: Walter de Gruyter, pp. 80–86. 61. Hyde, M.O. (1983). Rights of the Victim. In Bibliography on Victims in the Criminal Justice System: A Sourcebook. Alexandria, VA: Victim Witness Co-ordination Program of the National District Attorneys’ Association. 62. Jann, R. (1994). Adventures of Sherlock Holmes: Detecting Social Order. NY: Twayne Publishers Inc. 63. Kaiser, G. (1994). Comparative Perspectives Concerning Victim Orientation in Criminology and Criminal Justice. In Kirchhoff, G.F., Kosovski, E., and Schneider, H.J. (eds) International Debates of Victimology. Mönchengladbach: World Society of Victimology Publishing, pp. 104–149. 64. Karmen, A. (1979) Victim Facilitation: The Case of Auto Theft, Victimology 4(4): 361–70. 65. Karmen, A. (1980) Auto Theft: Beyond Victim-blaming, Victimology 5(2): 161–74. 66. Karmen, A, (1992). Who’s Against Victims’ Rights? The Nature of the Opposition to Pro-Victim Initiatives in Criminal Justice. Journal of Civil Rights and Economic Development, 8(1): 157–175. 67. Karmen, A. (2013). Crime Victims: An Introduction to Victimology. Monterey, CA: Wadsworth/Thomson Learning. 68. Kirchhoff, G. (2007). Perspectives on victimology: The science, the historical content, the present. Tokiwa Journal of Human Sciences, 10(3): 37–62.

22  Forensic Justice 69. Kirchhoff, G. (1994.) Victimology – History and Basic Concepts. In Kirchhoff, G.F., Kosovski, E., and Schneider, H.J. (eds) International Debates of Victimology. Mönchengladbach: World Society of Victimology Publishing, pp. 1–81. 70. Kocsis, R. N. (2007). Skills and accuracy in criminal profiling. In R. N. Kocsis (ed), Criminal profiling: International theory, research, and practice (pp. 365–382). NY: Humana Press. https://doi.org/10.1007/9781-60327-146-2_18 71. Konnikova, M. (2013). Master – mind: How to think like Sherlock Holmes. New York: Viking. 72. LEAP (no date). Sir Robert Peel’s Policing Principles. Law Enforcement Action Partnership. Online https://lawenforcementactionpartnership.org/peel-policing-principles/ 73. Lewin, K. (1951). Field theory in social science: Selected theoretical papers. New York: Harper. 74. MacDonald, J.M. (1971). Rape Offenders and Their Victims. Cal.: Thomas. 75. Masters, R., Way, L.B., Gerstenfeld, P.B., Muscat, B.T., Hooper, M.K., Dussich. J.P. & Skrapec, C.A. (2023). CJ: Realities and Challenges. USA: McGraw Hill Education. 76. Meirs, D. (1989). Positivist Victimology: A Critique. International Review of Victimology, 1(1): 3–22. DOI: 10.1177/026975808900100102 77. Mendelsohn, B. (1937). Methode a utiliser par la defenseur pur les recherches Concertant la Personalite du Criminal. Revue de Droit Penal et de Criminologie et Archives internationals de medicine legale: 877– 891. [Method to be used by the defender for research - Concerting the Personality of the Criminal Journal of Criminal Law and Criminology and International Archives of Legal Medicine]. 78. Mendelsohn, B. (1940). Rape in Criminology. Translated and cited in The Victim and His Criminal (S. Schafer, 1968). Random House; New York, USA. 79. Mendelsohn, B. (1956). Une Nouvelle Branche de la Science Bio-psycho-sociale: Victimologie. Revue Internationale de Criminologie et de Police Technique, 10. 80. Mendelsohn, B. (1963). The Origin of Victimology. Excerpta Criminologica, 3: 239–356. 81. Mendelsohn, B. (1976). Victimology and Contemporary Society’s Trends. Victimology, 1: 8–28. 82. Miethe, T.D. & Meier, R.F. (1994). Crime and its Social Context. New York: SUNY Press. 83. Muller, D. A. (2000). Criminal profiling: Real science or just wishful thinking? Homicide studies, 4(3): 234–264. 84. O’Connell, M. & Hayes, H. (2019). Victims, Criminal Justice and Restorative Justice. In H. Hayes & T. Prenzler (eds), An Introduction to Crime, Pearson, Australia, fifth edition. 85. O’Connell, M. (2004). Victimology – An introduction to the notion of criminal victimisation. In R. Sarre & J Tomanio (eds) Key Issues in Criminal Justice. Adelaide, SA: Australian Humanities Press. 86. O’Connell, M. (2008). Victimology: A social science in waiting? International Review of Victimology, 15 (2): 91–104. 87. O’Connell, M. (2015a). Victims of Sex Offences – Restorative Justice a panacea? , T Tolfenson (ed) Victimological Advances in Theory, Policy and Services – A Festschrift in honour of Prof John PJ Dussich. 88. O’Connell, M. (2015b) Evolution of Victims’ rights and victim assistance, in D. Wilson & S. Ross (eds) Crime, victims and policy. UK: Palgrave. 89. O’Connell, M. (2019) Victimology: Securing Rights and Delivering Services to Victims Terrorism, In Victimology in a Nutshell: Interdisiplinary Perspectives, Indonesia: Genta Publishing. 90. O’Connell, M. (2022). Same, Same but Different: Preventing Crime and Preventing Victimisation. Global Advances in Victimology and Psychological Studies, 1(1): 7–19. 91. Osterburg, J.W. & Ward, R.H. (2010). Criminal investigation: A method of reconstructing the past. Boston: Andersen Publishing. 92. Petherick, W. (2017). Victim precipitation: why we need to expand upon the theory. Forensic Research & Criminology International Journal, 5(2): 262–264. 93. Petherick, W., Kannan, A. & Brooks, N. (2020). Victim Precipitation: An Outdated Construct or an Important Forensic Consideration? Journal of Forensic Psychology Research and Practice. 94. Pinizzotto, A. J., & Finkel, N. J. (1990). Criminal personality profiling: An outcome and process study. Law and Human Behavior, 14(3): 215–233. https://doi.org/10.1007/BF01352750

Forensic Victimology: A Study in Criminal Victimisation  23 95. Rubenhold, H. (2019). The Five: The Untold Lives of the Women Killed by Jack the Ripper. London: Doubleday. 96. Saferstein, R. (2014). Criminalistics: An introduction to forensic science. NY: Pearson. 97. Schafer, S. (1968). The Victim and His Criminal: A Study in Functional Responsibility. New York: Random House. 98. Schneider, H. J. (2001). Victimological Developments in the World during the Past Three Decades (I): A Study of Comparative Victimology. International Journal of Offender Therapy and Comparative Criminology, 45(4): 449–468. https://doi.org/10.1177/0306624X01454005 99. Sheleff, L. S., & Shichor, D. (1980). Victimological Aspects of Bystander Involvement. Crime & Delinquency, 26(2): 193–201. https://doi.org/10.1177/001112878002600205 100. Shiri, A. (2019). Forensic Victimology. Journal of Law Research, 21(84): 215–242. DOI: 10.22034/ jlr.2019.161544.1292 101. Snook, B., Cullen, R. M., Bennell, C., Taylor, P. J., & Gendreau, P. (2008). The Criminal Profiling Illusion: What’s Behind the Smoke and Mirrors? Criminal Justice and Behavior, 35(10): 1257–1276. https://doi. org/10.1177/0093854808321528 102. Spalek, B. (2006). Crime Victims: Theory, Policy and Practice. Basingstoke: Palgrave MacMillan. 103. Sparks, R.F. (1981). Multiple Victimisation: Evidence, Theory and Future Research, Journal of Criminal Law and Criminology, 72(2):762–79Stenning 2009 104. Stricker, G., & Trierweiler, S. J. (1995). The local clinical scientist: A bridge between science and practice. American Psychologist, 50(12): 995–1002. https://doi.org/10.1037/0003-066X.50.12.995. 105. Taylor, I. (1976). Victimology: An Account and a Critique. Alternative Criminology Journal, 15(1): 50–61. 106. Tribe, S. (2014). Sherlock Chronicles: From the creative term behind the hit TV series. London: BBC Books. 107. Turvey, B. (2008). Criminal profiling: An introduction to behavioural evidence analysis. Third edition. USA: Elsevier 108. Turvey, B. & Petherick, W. (2008). Forensic Victimology: Examining Violent Crime Victims in Investigative and Legal Contexts. Academic Press. 109. Petherick, W. A., & Turvey, B. (2008). Criminal profiling, the scientific method, and logic. In B. Turvey (ed) Criminal profiling: An introduction to behavioural evidence analysis. USA: Elsevier 110. Turvey, B. & Crowder, S. (2017). Forensic investigations: An introduction. USA: Academic Press. 111. Turvey, B. (2014). Forensic Victimology: Examining Violent Crime Victims in Investigative and Legal Contexts. Academic Press. 112. van Dijk, J. (1999). Introducing victimology. In J. van Dijk, R. van Kaam & J.A. Wemmers (eds) Caring for Victims. Mounsey, NY: Criminal Justice Press. 113. Van Dijk, J., & Groenhuijsen, M. (2017). A glass half full, or half empty?: On the implementation of the EU’s Victims Directive regarding police reception and specialized support. In S. Walklate (ed) Handbook of victims and victimology. London: Routledge. 114. Walklate, S. (2012). Courting Compassion: Victims, Policy, and the Question of Justice. Howard Journal of Crime and Justice, 51(1): 109–121. https://doi.org/10.1111/j.1468-2311.2011.00698.x 115. Walklate, S. (2007). Handbook of Victims ad Victimology. London, UK: Willian Publishing. 116. Waller, I. (2019). Science and secrets of Ending Violent Crime. Lanham: Rowman & Littlefield. 117. Weber, M. (2011). Methodology of Social Sciences. First edition. Translated by E.A. Shils & H.A. Finch. London: Routledge. 118. Weir, H. (1991). The Nature and Concerns of Victimology: Victimology – Book 1. Adelaide: Adelaide Institute of TAFE 119. Weller, P. & Roden, C. (1992). The life and time of Sherlock Holmes. London: Bracken. 120. Wemmers, J. (2009). A short history of victimology. In O. Hagemann, P. Schafer & S. Schmidt (eds) Victimology, victim assistance and criminal justice: Perspectives shared by international experts at the Inter-University Centre of Dubrovnik. Monchengladbach/Keil: Band47, pp. 33–42. 121. Werner, A. (2014). Sherlock Holmes: The Man Who Never Lived and Will Never Die. London: Ebury Press & Museum of London.

24  Forensic Justice 1 22. Wertham, F. (1949). The Show of Violence. Psychoanalytic Quarterly, 18: 516–518. 123. Whitrod, R. (1986). Victimology – The Study of Victims in Australia. In D. Chappell & O. Wilson (eds) The Australian Criminal Justice Systems: The Mid 1980s. Melbourne: Butterworths 124. Wolfgang, M.E. (1957). Patterns in Criminal Homicide. Journal Criminal Law, Criminology & Police Science, 48(1): 1–11. Online https://scholarlycommons.law.northwestern.edu/cgi/viewcontent. cgi?article=4565&context=jclc [See also Wolfgang, M.E. (1970). Victimprecipitated Criminal Homicide. In M.E. Wolfgang, L. Savitz & N. Johnston (eds) The Sociology of Crime and Delinquency. 2nd ed. New York: John Wiley & Sons.] 125. Wolfgang, M. E. (1959). Suicide by means of victim-precipitated homicide. Journal of Clinical & Experimental Psychopathology, 20: 335–349. 126. Wolfgang, M.E. (1979). Preface. In H.V. Hentig, The Criminal and his Victim: Studies in the Sociobiology of Crime. New York: Schocken Books, pp. iii–iv. 127. Zedner, L. (2006). Policing Before and After the Police: The Historical Antecedents of Contemporary Crime Control. The British Journal of Criminology, 46(1): 78–96. https://doi.org/10.1093/bjc/azi043

Chapter 2

The Sociological Criminology Behind Male Adult Victim Sexual Misconduct: A Comparative Analysis of Spain and New York Javier Gomez Lanz and Adam Dubin

Abstract: The literature on victimology and criminology has centred heavily on female victims of sexual misconduct, whereas far less has been written about male adult victims of sexual misconduct perpetrated by both women and other men. Due in large part to the stigma and embarrassment faced by male adult victims of sexual misconduct and because rape and sexual aggression have historically been defined as male-on-female crimes, when cases of male victimisation do occur, victims seldom come forward. Nevertheless, there is an increasing body of literature and data sources that demonstrate a higher than expected prevalence of sexual aggression perpetrated against adult male victims and merit further research. This chapter analyses the legal and judicial responses to the sexual victimisation of male adults by comparing New York and Spain, both of which historically defined rape in gender-specific terminology (male-on-female aggression) but later modified their laws towards more gender-neutral terminology. Through an analysis of data, case law, and other studies, this chapter will analyse, from a socio-criminological perspective, the ways in which these legal systems have responded to sexual aggression perpetrated against adult males. The chapter is divided into three sections. The first section provides an overview of the legal history of laws of sexual aggression involving male adult sexual victimisation; the second section presents empirical evidence as to the prevalence of these crimes, as well as a qualitative examination of the obstacles that impede the understanding of this phenomenon; and the final section provides recommendations for improved approaches towards ensuring justice for male adult victims and for expanding future research on this topic. Keywords: Male sexual victimisation, Male rape, Male victimology, Male victim, Male victimology, Sexual assault

26 Forensic Justice

Introduction The field of victimology has historically focused on female victims of sexual misconduct. While the overwhelming majority of sexual misconduct victims are female, there is a growing body of data and literature that demonstrates higher rates of men as victims of sexual misconduct than previously thought. Although research indicates that the majority of sexual misconduct assaults against male adults are committed by men, some studies suggest that between 6% and 15% of offences against male adults involve a female perpetrator (Turchik and Edwards, 2012, 211). The circumstances and typology surrounding male victimisation often differ from those of females due to the stigma and shame experienced by male victims, threats to their masculine identity, and concerns of being judged as homosexual (Lewis, 2009, 8; Sivakumaran, 2007, 255, 272). Moreover, historical laws defining sexual misconduct as male-on-female crimes, combined with media portrayals and societal perceptions of male-female gender identities, have perpetuated stereotypes of men as aggressors seeking sexual fulfilment and women as victims. As noted by Javaid (2015) as well as Turchik and Edwards (2012), “the invisibility and marginalisation of male sexual assault” has long been associated with the preservation of “rape myths”. Consequently, this has not only given way to an understudied field about male sexual misconduct victimology but has also contributed to underreporting and a lack of attention by public policymakers, the police, and the judicial systems. Recognising these challenges, this chapter aims to highlight the varying extent of data on male adult sexual misconduct victimisation by comparing New York State to Spain and providing an analysis of ways in which public policy outcomes can be improved towards better data collection and protection of the adult male sexual misconduct victim. The first part of the chapter discusses the issues around the collection of data, followed by a historical overview of gender-specific sex crime laws. The next section reviews existing data collection in New York and Spain, highlighting the variability amongst data sources on the extent of male victimisation. The section also identifies the challenges behind data collection. The third and final part of the chapter analyses potential improvements that could be implemented towards more victim-centred justice and public policy. For purposes of this chapter, the authors have chosen to focus exclusively on male adult victims of sexual misconduct, a term that refers to any form of sexual assault (in particular, sexual intercourse, anal, or oral sex) without the victim’s consent.

Data collection, victimology, and criminal justice policy The fundamental nature of data collection in the field of victimology has long been recognised among victimologists. The availability of data assists in identifying trends in victimisation and provides a more verifiable basis to respond with adequate police, legal, and other interventions in order to assist victims and prevent further victimisation within a society. Biderman (1981, 789) notes that “The phenomena of interest to victimology are events (and their sequelae) in which persons, as individuals, or as groups (victims) have been affected by acts of other persons or groups which some judger defines as wrongful (offenses)”. Data provides an understanding and insight into this studied phenomenon and permits the researcher an empirical foray into the trends, patterns, and impact surrounding victimhood. Furthermore, and perhaps more importantly, this data provides a basis for the development of laws and policies that reflect and respond to the reality of sexual misconduct and victimisation. In recent years, in part due to improved technology and data collection methods, fields such as victimology have had greater access to empirical sources than ever before. Most governments,

The Sociological Criminology Behind Male Adult Victim Sexual Misconduct 27

including police departments and other ministerial offices, collect disaggregated data on a range of information involving the victims of crimes, from homophobic attacks to robberies. Tools such as the Federal Bureau of Investigation’s National Incident-Based Reporting Systems (NIBRS) or the Bureau of Justice Statistics’ National Crime Victimisation Survey in the United States and similar programmes in Spain such as the Ministry of the Interior’s Crime Statistics System (SEC) and the Judicial Statistics published by the General Council of the Judiciary offer comprehensive datasets that enhance understandings of victimisation and can support the development of more efficient and targeted responses. Nevertheless, despite the availability of robust data sets, not all victimisations are collected, reflected, or published, especially those that involve underreported crimes. The documentation of sexual offences is particularly challenging due to their occurrence in private settings, which are not easily observable, as well as the voluntary or involuntary concealment of such offences by perpetrators, victims, and potential witnesses (Andrés Pueyo et al., 2020, 8). Sexual victimisation against men is seldom reported to the police or other agencies. This is for a number of reasons, from shame and embarrassment (Liakopoulos, 2018, 8) to the questioning of masculinity and concerns about being labelled as a homosexual (Lewis, 2009, 8; Sivakumaran, 2007, 255, 272). Reflecting this point, a report by the International Committee of the Red Cross (2022, 11) notes that “Many humanitarian agencies not only overlook the needs of females, but also completely overlook men, boys, and sexual minority groups as sexual and gender-based violence survivors in their needs assessment, discussions with communities, during data collection and follow-up community based and humanitarian response programming”. In further reference to the challenges of collecting data on sexual violence victimisation, a study by Ramos et al. (2018, 15) observes that “… the embarrassment and secrecy around it” make it difficult to ultimately quantify the true nature of these crimes. In addition to low reporting because of shame and other factors, there is also an historical tendency, discussed in the next section, to conceptualise the victim of sexual misconduct as only female (Liakopoulos, 2018, 7; Turchik and Edwards, 2012, 211). While perhaps understandable considering that the majority of victims are indeed female, it nevertheless neglects the male adult victims of sexual violence. There is a need from both criminal justice and academic perspectives to better capture the full extent of victimisation and abandon this stereotypical view of gendered criminality. The existing body of literature indicates that this phenomenon tends to receive inadequate attention, even in contexts where its prevalence is fairly high, such as in armed conflicts (Liakopoulos, 2018, 7; Tarre Moser and Leyva Morelos-Zaragoza, 2015; Lewis, 2009; Sivakumaran, 2007) or within detention settings (Turchik and Edwards, 2012, 219; Russell, 2009, 22). The following section traces the development of sexual misconduct laws in the United States and Spain in order to understand the roots of gender-specific laws that have historically conceptualised the perpetrator as only male and the victim as only female. Although nowadays many, if not most, countries have adopted genderneutral sexual misconduct laws, the historical existence of these laws has undoubtedly conditioned societies to continue perceiving rape and other forms of sexual misconduct as a male-on-female crime, ultimately leading to the neglect of a subset of sexual misconduct victims.

The Legal Response to the Sexual Victimisation of Male Adults: Towards a Gender-Neutral Characterization of Sex Crimes There is a close correlation between the modification of social beliefs and customs and their effect on the development of criminal law. This is ubiquitous, particularly in the field of sex crimes. The

28  Forensic Justice choice of specific interests that the law has intended to protect in this area has affected the structure and typology of sexual criminal offences and, notably, the legal definition of rape. The earliest formulation of rape can be found in the Code of Hammurabi, which defined rape in gender-specific terms as an act perpetrated by a man against the wife of another man. Since then, and until fairly recently, sexual misconduct laws in most of the world have reflected this same perspective: a sex crime could only be committed by a man against a woman. This narrow definition appears to be driven historically, at least in part, by patriarchal views (Turchik and Edwards, 2012, 213). Nevertheless, over the last five decades, many jurisdictions have adopted new criminal codes reflecting gender-neutral language in sexual misconduct laws. This section will trace the shift from gender-specific to gender-neutral laws in the State of New York and Spain, two geographies with roughly similar population sizes and gender ratios and both of which recognised gender-neutral sexual offence laws during the same decade.

The state of New York Statutory formulations of rape and sexual misconduct have historically been defined under Common Law with gender specificity. The recognition of rape in Common Law can be traced back to Aethelbert of Kent (approximately 560 AD), who recognised rape to be an act performed specifically and only against women, giving rise to civil offences resulting in a monetary judgement determined by whether or not the victim was a virgin betrothed to another man or other factors such as her noble status (Smith, 1974). Some one thousand years later, Lord Edward Coke of England is said to have formulated the classical definition of rape, defining it in gender-specific terms as “when a man hath carnal knowledge of a woman by force and against her will” (Tchen, 1983, 1523). The first rape laws in America date back to the colonial period, in which the definition of rape inherited from the United Kingdom was defined across many of the colonies in gender-specific terms as “carnal knowledge of a woman 10 year or older, forcibly and against her will” (Bishop, 2018). Since then, sexual misconduct laws have slowly evolved with respect to two identifiable aspects, both of which have gender implications. The first, which will not be discussed in substantial detail but is nevertheless worth observing, concerns the meaning of consent within rape laws, which Tchen (1983, 1552) notes has historically created difficulties in American courts for women because “Courts were reluctant to convict accused rapists on such testimony alone [by the female victim alleging nonconsent], primarily because of fundamental distrust of the female complainant”. This distrust of female rape victims is reported often in newspapers and media and is perhaps best exemplified by an historical case that reflects the doubts commonly expressed towards female victims of sexual violence. The comment was made by the Chief Justice of the Supreme Court of Illinois in People v. Fryman (1954), in which the Court overturned and remanded for retrial a rape conviction. The judge stated: “The fact that she, on the night she was assaulted, agreed to another date is highly suggestive of an approval on her part of what happened. There were other facts, however, that indicated the contrary”. A certain irony is worth noting here. While laws were historically created in gender-specific terms to protect women against sexual aggression, in practise, women have faced tremendous difficulty alleging rape in the absence of evidence of violence or explicit force. This has led over time to reconsiderations of standards and understandings of proof and evidence in an attempt to ensure a fair trial without the imposition of moral standards, stereotypes, and other irrelevant aspects of the personality and general behaviour of female victims. The second change, which is the crux of this chapter, involves gender specificity in sexual misconduct laws. Despite the challenges in bringing allegations of rape, as detailed in the previous

The Sociological Criminology Behind Male Adult Victim Sexual Misconduct  29

paragraph, such accusations could, until fairly recently, in many states across the United States, including in historically more progressive states such as New York, only be brought by females against males. This changed in New York in 1984, when the Court of Appeals of the State of New York decided to expand the scope of sexual misconduct laws, declaring gender-specific sexual misconduct laws unconstitutional. In The People of the State of New York v. Mario Liberta, the Court held gender-specific sexual misconduct laws to be in violation of the 14th Amendment Equal Protection Clause of the United States Constitution. According to the facts of this case, Mario and Denise Liberta were married in 1978 but separated in 1980 as a result of Mario’s physical violence against Denise. An order of protection was granted against Mario, and in 1981, he called Denise to ask if he could visit their son, who was born just before they separated. Upon arriving to see his son, he forced Denise to perform oral sex and then proceeded to forcibly engage in sexual intercourse with her, all in front of their child. The defendant was subsequently charged with rape and sodomy under §130.35 of the New York State Penal Law, which provided in relevant part that, “A man is guilty of rape in the first degree when he engaged in sexual intercourse with a female…by forcible compulsion”. The defendant challenged the constitutionality of §130.35 on the grounds that it violated Equal Protection because it exempted females from criminal liability. Although the Court agreed that the law was unconstitutional, it nevertheless refused to vacate the judgement. Instead, the Court affirmed the lower court’s conviction while at the same time striking out the gender-specific language of the statute. In this case, the court was faced with the question of whether to expand the scope of the criminal statute. The Court was initially hesitant to do so, noting that “we recognise that a Court should be reluctant to expand criminal statutes due to usurping the role of the legislature…”. However, it ultimately concluded that “in this case overriding policy concerns dictate our following such a course…” (The People of the State of New York v. Mario Liberta, 1984, 172). The Court, in choosing to expand the definition of the statute, cited a case from Alaska, Plas v. State (1979), involving the criminalization of prostitution among only females. In deciding this case, the Alaska Supreme Court emphasised the need for legislation to reflect “some logical justification having a basis in the actual conditions of human life” (id. at 969). The Court recognised that prostitution affects both males and females, and by expanding the definition, “it would accomplish the broad aim of the statute, and would not unreasonably distort the legislative intent” (id. at 969). The New York Court was influenced by this line of reasoning and ultimately recognised the importance of striking down gender-specific laws when doing so would serve a larger purpose. The New York Court of Appeals ended up abandoning historical notions of rape and other sexual misconduct and instead broadening the scope to encompass both male and female perpetrations. This subsequently led to the adoption of new sexual misconduct laws by the State legislature, which modified existing language to refer to the perpetrator as the “person” and the victim as “he or she”. On a related note, this raises new questions about people who identify as non-binary and will likely be a consideration in future revisions of the law.

Spain The evolution of Spanish criminal law in the area of sexual offences exemplifies the correlation between the choice of the specific interests that the law intended to protect and the legal definition of rape. For 130 years, from the 1848 Penal Code until the enactment of the 1978 Constitution, the legal regulation of sexual offences in Spain had a markedly moralising nature (Polaino Navarrete, 1975, 18). Criminal law aimed to protect legal interests such as sexual honesty and public morality,

30  Forensic Justice with the latter notion understood according to the sexual mores under Catholicism (Díez Ripollés, 2004, 214). From the late 1960s onwards, a greater social openness in Spanish society and a more pluralistic consideration of these issues contributed to changing perspectives, leading to legal reforms on this matter after the approval of the 1978 Constitution. Thus, the new system of constitutional rights and freedoms gradually influenced criminal law, culminating in 1989 with new laws and sexual offences aimed at protecting sexual freedom. Until 1989, rape was defined in Spain as a sexual assault in which the perpetrator had to be a male and the victim a female. This legal definition was reinforced by the use (in the description of the offence) of the archaic Spanish verb ‘yacer’ (to lie with), which referred to a semantic spectrum limited to vaginal penetration and, consequently, to heterosexual relationships (Alonso de Escamilla, 1989, 572) and, at least hypothetically, procreative acts. In this context, the sexual victimisation of male subjects was articulated through a different criminal offense—“abusos deshonestos (dishonest abuses)”—which included a variety of sexual acts of different natures and significance. While rape was then punished with a prison sentence of twelve to twenty years, the criminal offence of “abusos deshonestos” was punished with a substantially less severe penalty (a prison sentence of six months to six years). The application of this outdated offence is exemplified by a rather recent ruling, the Spanish Supreme Court’s decision on July 12, 2002 (STS 1320/2002). This ruling specifically addresses the punishment of a military personnel who coerced two other military personnel, who were under arrest, into engaging in homosexual acts under the threat of causing serious harm. This disparate treatment prompted the Spanish Supreme Court (Criminal Chamber) to present what is known as a Motivated Report to the Spanish Government on November 2, 1987, in which it highlighted the need to reform the Law due to a perceived injustice. This Report advocated for the promotion of a bill that would subject sexual intercourse with a woman, committed either against her will or without her consent, to the same level of punishment as intercourse obtained under similar circumstances with individuals of any gender. As stated before, the paradigm shift took place in 1989 with the passage of Organic Law 3/1989 of June 21st. On the one hand, this regulation established sexual freedom (instead of sexual honesty and public morality) as a legally protected interest. Sexual criminal law, therefore, shifted its focus to protecting the freedom and autonomy of individuals engaged in consensual sexual activities (Orts Berenguer & Suárez-Mira Rodrguez, 2001, 16–18). At the same time, the new regulation provided the first gender-neutral definition of rape under Spanish Law: “Whoever has carnal access with another person, whether vaginal, anal, or oral (…) in any of the following cases: 1. When force or intimidation is used. 2. When the person is unconscious or when their mental faculties are abused. 3. When the victim is under twelve, even if none of the circumstances described in the previous two paragraphs are present”. With this new wording, any person, regardless of their gender, could become a victim of this criminal offence. Under this legislation, the key criterion for classifying a sexual assault as rape (and thus, for imposing a more severe penalty) was the presence of carnal access (“acceso carnal”), a term commonly understood to refer to penetration (Dez Ripollés, 1991, 52). The inclusion of anal and oral penetration as forms of sexual assault that, along with vaginal penetration, could be classified as rape was met with opposition from certain authors who argued that such acts, particularly oral penetration, had a different nature and were less harmful to the victim (Alonso de Escamilla, 1989, 589; Muñoz Conde, 1989, 282). However, the categorisation of these acts as rape was, for obvious reasons, instrumental in formulating a gender-neutral criminal offence.

The Sociological Criminology Behind Male Adult Victim Sexual Misconduct  31

This new legal definition of rape put an end to punitive discrimination and ensured consistent punitive equality (at least, in theory) for cases of both female and male victimisation. This amendment, which aligned the legislation in this area with the principle of equality enshrined in Article 14 of the Spanish Constitution, received high praise from leading legal scholars (Muñoz Conde, 1989, 280; Díez Ripollés, 1991, 53). Moreover, the definition of the criminal offense of rape did not specify the gender of the perpetrator, thus making it, in theory, an offense that could be committed by any person, regardless of their gender. While some authors, such as Muñoz Conde (1989, 280), interpreted that only a male could be the perpetrator, as they were required to engage in carnal access or penetration with the victim, the majority of scholars argued that penetration was necessary but that the person performing the penetration could also be the victim when coerced to do so (Díez Ripollés, 1991, 53). The Spanish Supreme Court, in a ruling dated May 25, 2005, explicitly recognised this latter perspective. However, since the 1989 amendment to the Penal Code required the existence of penetration by a penis, whether vaginal, anal, or oral, a sexual assault in which both the aggressor and the victim were female could not be classified as rape, as the aforementioned sexual act could not take place (Alonso de Escamilla, 1989, 589; Díez Ripollés, 1991, 54; Orts Berenguer and Suárez-Mira Rodríguez, 2001, 25). Since then, there have been several amendments that have broadened the scope of what qualifies as rape to include the insertion of body parts (such as the tongue and fingers) or objects into the vagina or anus. Consequently, the roles of both perpetrator and victim in sexual misconduct can now extend to females. However, an ongoing debate focuses on the question of whether an individual coerced into performing the act of inserting body parts or objects can be categorised as a victim. Some argue that this coerced action, even when compelled through force, may not carry the same significance as being the recipient of the insertion (Cabrera Martín, 2019, 99).

Quantitative and Qualitative Analysis of Male Adult Victim Sexual Misconduct Victimology in cases of sex crimes has historically centred around the female as a victim of sexual misconduct. One study cites the women’s movement as one of the biggest influences in the field of victimology, noting that “sexual assault and domestic abuse were a by-product of sexism, traditional sex roles…” (Daigle, 2017, 6). This has undoubtedly led to an understanding of victimisation in sexual misconduct as being mainly female-centred. While data shows that females are overwhelmingly the victims of sexual misconduct, and this study by no means seeks to refute this conclusion, this has frequently led researchers and government bodies to overlook male adult victimisation in sexual misconduct cases. Thomas and Kopel (2023, 2) note that “the literature unanimously agrees that there is a dearth of information on the subject when compared to information on female victims”. Highlighting the importance of studying male adult victimisation for public policy purposes, a report by the Canadian Government, which collects and publishes statistics on the rate of male sexual violence victimisation, notes that: In recent years, there have been several calls to action to address and prevent violence against women, with the acknowledgement that women experience certain forms of violence… This has resulted in the recognition of violence against women as a public health concern requiring immediate attention. The Canadian Centre for Justice and Community Safety Statistics has released many gender-based violence reports which highlight the victimisation of women and girls and, while corresponding data for men and boys is shown comparatively, they have typically not been the focus of analysis (Sutton, 2021, 4).

32  Forensic Justice Undoubtedly, the lack of literature and data affects public policy development and an ability to provide comprehensive assistance to male adult victims of sex crimes. The male adult victim experience often results in a sense of emasculation (Lewis, 2009, 7; Sivakumaran, 2007, 270), feelings of self-blame since men are supposedly more able to fight off violence, and accusations and doubts over the victim’s sexuality (Thomas and Kopel, 2023, 7), requiring specialised support services and victim assistance. The following sections are meant to draw attention to the troubling state of data collection on male sexual violence and promote the development of criminal justice policies that adequately respond to the pervasiveness of this victimization.

New York National estimates As stated above, there is an important gap in research concerning male adult sexual violence victimisation. In fact, at the national level in the United States, unlike in Spain, there is no official available reporting data on male adult sexual misconduct victimisation based on victim reporting; instead, there are government and academic studies and surveys with estimated prevalence rates that vary considerably from one publication to another (Thomas and Kopel, 2023, 4). These studies vary even more when considering certain subcategories, such as the sexual orientation of the male victim, with some studies showing higher prevalence rates among heterosexual males and others finding higher prevalence rates among homosexual males (Thomas and Kopel, 2023, 5). Studies on the prevalence of male adult victims of sexual violence are thus largely inconclusive and offer a varying range of results. One of the largest surveys was carried out by the Center for Disease Control. The CDC’s 2016– 17 National Intimate Partner and Sexual Violence Survey: Report on Sexual Violence published the results of the national survey of 15,152 women and 12,419 men. Although it is hardly a representative sample in a country with over 300 million people, it nevertheless offers a comparative estimate of victimisation rates between men and women. The results (Table 2.1) show that despite significantly higher rates of female victimisation, male adult victimisation is by no means statistically insignificant, Table 2.1 National Intimate Partner and Sexual Violence Report: Comparative Analysis between Males and Females Crime

Women

Men

Rape

1 in 4 women reported completed or attempted rape in her lifetime (26.8% or 33.5 million women)

1 in 26 men reported completed or attempted rape in his lifetime (3.8% or 4.5 million men)

Made to Penetrate

n/a

1 in 9 men reported being made to penetrate in his lifetime (10.7% or 12.6 million men)

Sexual Coercion

1 in 4 women reported sexual coercion victimisation in her lifetime (23.6% or 29.4 million women)

1 in 9 men reported sexual coercion victimisation in his lifetime (10.9% or 12.8 million men)

Unwanted sexual contact

1 in 2 women reported unwanted sexual contact victimisation in her lifetime (47.6% or 59.4 million women)

1 in 4 men reported unwanted sexual contact victimisation in his lifetime. (23.3% or 27.5 million men)

Source: Center for Disease Control: 2016/17 National Intimate Partner and Sexual Violence Survey: Report on Sexual Violence

The Sociological Criminology Behind Male Adult Victim Sexual Misconduct  33

with millions of men across the country identifying as being victims of some form of sexual misconduct. Other studies have also confirmed high levels of victimisation among males, finding not only elevated rates of sexual violence victimisation but also rates somewhat similar to those of women (Stemple and Meyer 2014). Towards a state estimate For the New York portion of this study, a number of government institutions were consulted to seek data about the rate of male adult victims of sexual violence across the state. These institutions included the New York City Police Department, the Manhattan District Attorney’s Office, and the New York State Department of Criminal Justice Services, all of which collect data on both misdemeanour and felony crimes. This latter government agency explicitly confirmed in writing to the authors of this study the lack of disaggregated data regarding the gender of victims of sexual misconduct. They also mentioned that they were unaware of any agency that maintains statistics specifically on male adult sexual assault victims. The State of New York and municipal police departments collect other information about sex crimes, including the race and ethnicity of both the perpetrator and the victim, but do not provide information about the gender of the victim outside of intimate partner violence. For other crimes, such as homicides, assaults, and robberies, data about the gender of the victim is published in government statistical reports. New York State does, however, collect data on intimate partner violence, which includes information about sexual misconduct in intimate partner settings and the gender of the victim. Although this data, which will be discussed later in this section, offers a snapshot into the extent of the problem, it is nonetheless limited and unrepresentative of sex crimes outside of intimate partner relationships. The same New York State government agency referred to above also confirmed that the only available data on sex crime victims disaggregated based on sex involves victims of intimate partner domestic violence, which, they noted, is ultimately a very small subset of sexual criminal offences. Because of the limited data available on male victims of sexual violence in New York State, it is impossible to determine a precise number of male victims. This section on New York, therefore, endeavours to provide an estimated quantification of the total number of male victims across the State while at the same time highlighting the methodological challenges in doing so. It represents a starting point towards a more precise determination of the total number of male victims of sexual misconduct at the state level and demonstrates the need to develop and make available disaggregated data on the gender of sexual violence victims. This section employs a methodology based on the proportion of the total number of male victims across the United States and then determines the proportion of New York victims based on the proportional population relative to the population of the United States, which is currently 334.8 million people according to the U.S. Census Bureau. Of the total population, 169 million are female (50.5%) and 165 million are male (49.5%). 72% of the population is over 18, which amounts to approximately 241 million men and women. Applying the same female-male percentages referenced above, the number of women (adult females) is 121 million (50.5%) and the number of men (adult men) is 119 million (49.5%). Comparatively, the State of New York has a population of 19.7 million as of July 1, 2022 (U.S. Census Bureau), with gender percentages similar to the rest of the population: 10 million (51%) are female and 9.7 million (49%) are male. With 80% of the total population over 18 years of age (adults), this comes out to approximately 15.8 million men and women, of which approximately 49% are male, equalling 7.7 million men across the State of New York.

34  Forensic Justice According to the CDC’s national survey (Table 1), 57.4 million men across the United States reported being victims of some form of sexual misconduct versus 88.8 million women. This amounts to approximately 50% of all women and 33% of all men in the U.S. identifying as having experienced sexual violence. Applying these percentages to the State of New York, this would translate to roughly 2.5 million men (32%) in NYS who have experienced sexual misconduct of some form. Even if this study methodologically overestimates the number of male sexual violence victims in New York State, there is other data that provides more conservative estimates of male sexual violence victims and is nonetheless statistically significant in terms of victimisation rates. For example, in a survey carried out among 165 respondents in New York State by the New York State Coalition Against Sexual Assault, it was found that 6.6% of male respondents identified as having suffered sexual violence in their lifetime, compared to 84.3% of females. This amounts to approximately 512,000 men, or 640,000 males in total. Another data source is intimate partner violence. While, on the one hand, it makes up only a small percentage of all cases of violence, it nevertheless is disaggregated based on gender and includes a category for sexual violence. Across New York City in 2021, there were 749 reported cases of intimate partner sexual violence victims, of whom 749 were female and 30 were male (NYS 2021). Across New York State (non-New York City), there were a total of 501 sexual violence cases reported to police, of which 476 victims were female and 26 were male. This comes out to a rate of 3.8% and 5.1% for male sexual misconduct victimisation, respectively. It is important to note that these last figures have a number of limitations. First, they only reflect sexual misconduct in the context of intimate partner sexual violence. Second, the data only includes offences reported to the police, likely a much smaller fraction than the actual number of cases, especially among men. A study by the U.S. Department of Justice found that more than 50% of violent crimes go unreported to the police, with men 7% less likely to report crimes than women. (Thomson & Tapp, 2022, 7) The data in this section provides a wide range as to the number of male victims of sexual violence in New York State. This is due to a number of factors, including underreporting among men, in addition to a lack of data collection and disaggregated statistics on sexual violence in New York State. Consequently, it is impossible to determine with greater precision the number of male victims. Nevertheless, this section of the study highlights that male victimisation is a real phenomenon and that the number of victims is not insignificant, even by more conservative estimates.

Spain As previously mentioned, one of the main tools in Spain for collecting statistical data on criminality is the Crime Statistics System (SEC) of the Ministry of the Interior. Undoubtedly, there are other significant instruments in Spain that supply official criminological information. These include the judicial statistics prepared by the General Council of the Judiciary, the Reports of the State Prosecutor General’s Office, and the prison statistics compiled by the General Secretariat of Penitentiary Institutions. However, it should be noted that the information provided by these tools predominantly focuses on the offender rather than the victim. Consequently, the data offered by the SEC offers greater utility for the present study. When examining victim statistics, the SEC differentiates between three categories: known facts, cleared/resolved cases, and victimisations. The term “known facts” encompasses a range of criminal and administrative offences that have been reported or uncovered by law enforcement agencies, either through filed complaints or proactive police actions (such as preventive or investigative work). A case is classified as “cleared” when the perpetrator has been apprehended in flagrante delicto

The Sociological Criminology Behind Male Adult Victim Sexual Misconduct  35

(caught in the act) or has been fully identified, even if they have not been formally arrested. It is also considered “cleared” when there is a verified confession, substantial evidence, or a combination of both, or when the investigation determines that no offence actually took place. Lastly, the concept of “victimisation” pertains to the number of reported incidents in which individuals declare themselves as victims or claim to have been affected by a criminal offence. It should be distinguished from the term “victim”, which refers to individuals. Therefore, “victimisations” serves as the encompassing term for the various incidents that impact a specific victim. The values associated with “known facts” and “cleared cases” solely indicate the overall number of incidents and their geographical and temporal distribution. However, the data pertaining to “victimisations” can be disaggregated based on the gender of the individuals involved. Taking this into consideration, the values collected by the SEC allow for the formulation of the following table (Table 2.2) for 2021 (the last year recorded by the SEC). It must be noted that the SEC partially follows the categorization of offences established in the Spanish Penal Code but does not distinguish all the criminal types established therein. As a result, the official data available shows an excessive aggregation of offences (Ballesteros Doncel y Blanco Moreno, 2021, 144). Table 2.2

Victimization Report on Criminal Offences of Rape

2021

Known Facts

Cleared Cases

Male 18+

Female 18+

2313

1792

123

1281

Sexual assault with penetration (rape)

2143

1735

116

1215

Other offenses against sexual freedom

11474

8985

658

5185

Sexual assault

Victimisations

Source: Crime Statistics System (SEC) of the Ministry of the Interior (2021)

According to these official data, in 2021, male adult victims accounted for 8.72% of victimisations related to the criminal offence of rape. This percentage increased to 8.76% when considering the offence of sexual assault and to 11.26% when including other offences against sexual freedom. It is important to emphasise that these figures specifically pertain to adult male victims. The Report on Crimes against Sexual Freedom and Sexual Integrity in Spain (2021, 16), prepared by the Coordination and Studies Office of the State Secretariat of Security under the Ministry of Interior, based on SEC data, indicates male victimisation rates of 10% (sexual assault), 9% (rape), and 14% (total offences against sexual freedom) across all age groups (including both male adults and minors). Table 2.3 reflects the evolution of these percentages from 2016 to 2021. Table 2.3

Evolution of Male Adult Victimization from 2016 to 2021

Percentage of male adult victimisations

2016

2017

2018

2019

2020

2021

5,97

7,19

7,39

6,61

7,47

8,76

Sexual assault with penetration (rape)

9,13

6,24

6,66

6,65

6,88

8,72

Other offenses against sexual freedom

11,18

9,39

9,38

9,7

10,5

11,26

Sexual assault

Source: Crime Statistics System (SEC) of the Ministry of the Interior

The official victimisation data provided by the SEC are also disaggregated according to categories other than gender. Of particular interest are the categories related to the age range of the victim and their nationality.

36  Forensic Justice In this regard, the data for 2021 reveal a significant concentration of sexual aggression and rape offences (both in relation to male and female victims) among younger age groups. Specifically, 39.1% of sexual assault victimisations involve minors, while 32.9% occur in the age range of 18-30 years. In the higher age brackets (31-40, 41-64, and 64+), the percentages are 12.6%, 13.6%, and 1.5% respectively. Regarding rape offences, 31.7% of victimisations occur in relation to minors, with the remaining percentages distributed as follows: 36.7%, 14.8%, 16.1%, and 0.6% across the other age brackets, respectively. The combination of disaggregated data by gender and age range shows that, across all age groups, the proportion of male victims in relation to the total varies between 9% and 14%, with the exception of minors under 13 years old, where the proportion of male victims increases to 22% of the total. Additionally, it should also be noted that, out of the 2,340 reported cases of male sexual victimisation in 2021, 82.86% were Spanish victims and 17.14% were foreign victims. As previously indicated, it is essential to take into consideration that the SEC data originate from the incidents reported to Police Departments, which entails a significant limitation. The shortcomings associated with official information concerning sexual offences highlight the importance of complementing this data with findings derived from social research, particularly victimisation surveys (Ballesteros Doncel & Blanco Moreno, 2021, 151; Andrés Pueyo et al., 2020, 84). However, in Spain, efforts to gather information on sexual victimisation have inadequately addressed male adult victims. Notably, the most recent and significant initiative in this area, the sexual victimisation survey conducted by the Centro de Investigaciones Sociológicas (CIS) on January 20, 2023, is overtly titled Sexual Violence against Women, explicitly focusing on the sexual victimisation of women in its questionnaire content. This is not an isolated occurrence: a prior survey on Social Perceptions of Sexual Violence conducted by the CIS on July 5, 2017, despite its neutral title, solely includes inquiries pertaining to female victimisation. Similarly, the victimisation survey conducted by the CIS on June 5, 2001, conspicuously reveals its intended limitation in its title: Sexual Harassment of Women in the Workplace. The widespread omission of adult male victims from public statistics represents a significant obstacle to attaining a comprehensive understanding of sexual misconduct. As highlighted by Andrés Pueyo et al. (2020, p. 284), the underrepresentation of sexual victimisation extends to various groups, and among them, male adults stand out as one of the primary groups affected.

Qualitative assessment of the former data As is frequently the case with data analysis, there are certain limits to what can be extrapolated from statistical information. The previous section demonstrated the lack of disaggregated data available and the broad spectrum of results in studies and surveys, but offered less information on the underlying reasons for these gaps in data. Therefore, a mixed-methods analysis involving qualitative considerations is also valuable for a more robust understanding of the phenomenon. In particular, this part of the section seeks to identify from a qualitative perspective some of the underlying determinants for the limitations in data collection, which will then be drawn upon in the subsequent section to provide recommendations for assisting male victims of sexual violence. One of the more frequently cited reasons, as discussed in previous sections, for limited or inexistent data is the low levels of reporting by male victims (Thomas and Kopel, 2023). On the one hand, the survey statistics demonstrate relatively high levels of sexual misconduct among men, as seen in the CDC survey. However, in Spain, for example, where more police data does exist, there is a clear discrepancy between being victimised and reporting the victimisation, as noted when comparing the U.S. CDC survey results to Spanish reporting rates. While the data itself does not account for the reasons behind these discrepancies, the literature offers some insight. Firstly, although victimisation

The Sociological Criminology Behind Male Adult Victim Sexual Misconduct  37

against men is committed by both men and women, there exist certain societal beliefs that women are not capable of committing sexual misconduct. Stemple et al. (2017, 303) note that “The idea that women can be sexually manipulative, dominant, and even violent runs counter to these stereotypes”. This view is reinforced by the justice system itself in the United States, which, when confronted with female sex offenders, has some tendency to punish them less severely compared to male sex offenders, offering in certain instances probation or community service in lieu of prison terms (Goodwin, 2019, 436). Regardless, however, of whether the offence is perpetrated by a male or female, there is still an overriding stigma attached to the male victim that leads to lower levels of reporting and visibility of crimes (Liakopoulos, 2018, 8). In a survey carried out amongst U.S. college students about barriers to reporting sexual violence, male and female students both identified shame and embarrassment as their primary reasons for not reporting, but male students also identified fear of being judged gay as another primary reason for not reporting (Sable et al., 2006, 160). The authors of the survey note that reporting by men “is perceived to jeopardize their masculine self-identity” (Sable et al., 2006, 160). Beyond men failing to report sexual assaults, there is still an overarching presumption that sexual misconduct is specific only to female victims, which may partly explain why data on sexual victimisation is not disaggregated by gender in many countries. For instance, as mentioned earlier, sexual victimisation surveys conducted in Spain by the leading official statistics agency (the CIS) exclude inquiries about sexual victimisation of men in their questionnaires. In this regard, it is profoundly disquieting that sexual misconduct against adult males is not specifically categorised as such within the context of International Criminal Courts but rather classified as generic acts of torture or inhuman treatment (Liakopoulos, 2018, 11–12; Tarre Moser and Leyva Morelos-Zaragoza, 2015, 74). A general presumption of single-gender victimhood is perhaps a reflection of certain societal constructions around gender roles in society that place women—and often exclusively—as victims of male violence. Since the time of the Code of Hammurabi and up until only some years ago in many countries, sexual misconduct has been codified in statutory terms as a male-on-female crime, so it is perhaps not surprising that data collection may be driven in part by ingrained societal conceptualizations and stereotypes of who can perpetrate and who can be victimised in sexual misconduct cases. The societal tendency to view men as capable of fending off an attack significantly impacts the presentation of evidence in criminal proceedings involving male adult victims of sexual offences. In this regard, it is worth noting the ruling of the Spanish Supreme Court on May 27, 2008 (STS 294/2008), which corrects the lower court’s assessment of the victim’s lack of consent. While primarily relying on the inconsistency between the victim’s accounts, the judgment also highlights how it is “surprising” that a “young man and professional soldier, who is presumed to possess at least a minimal ability to defend himself, adequate physical fitness, and knowledge of hand-to-hand combat, could be forcefully restrained by the arms and thrown to the ground by a lone individual, without any use of a weapon or causing any discernible injuries. Furthermore, the assailant proceeded to unbutton the victim’s trousers and shirt, engage in fellatio, and later coerce the victim into performing the act on the accused. All of this took place in a public area, with the victim being unable to defend himself or seek assistance”. Loxton and Groves (2022, 192) note that “[t]he existence and discourse of male victimisation challenges traditional gender stereotypes generally...”. They go on to argue that male sexual victimhood, especially when perpetrated by a female, challenges social and cultural values (192). In other words, to develop more robust and complete data on male victim sexual misconduct would involve the foregoing of ingrained beliefs about the gender of the perpetrator and victim. Ultimately,

38  Forensic Justice by continuing (or failing) to collect or publish data that is disaggregated, there is a failure to demonstrate an accurate reality of victimhood while at the same time perpetuating a certain societal presumption that the data on sexual violence victimization is exclusively female. Sable et al (2006, 160) point out that, “Research on male rape and the barriers to reporting for men could strengthen rape theory as a crime of power rather than as an expression of unmet sexual needs”.

Addressing Male Adult Sexual Victimisation: Proposed Recommendations A comprehensive approach to addressing male adult sexual victimisation necessitates, above all, the strengthening of systematic data collection focused on male adult victims. This involves implementing official policies aimed at enhancing the collection of victimisation data and enabling the acquisition of disaggregated information based on various criteria, including gender, age, race, and other pertinent factors. Official data should encompass the diverse experiences of individuals impacted by sexual victimisation, facilitating analyses that elucidate the complexity of the phenomenon. Furthermore, acknowledging the limitations associated with official information on sexual offences, it is crucial to broaden the scope of victimisation surveys and research studies to cover male adult victims (Javaid, 2015, 289; Turchik and Edwards, 2012, 220). This relatively inexpensive measure holds the potential to significantly advance a comprehensive understanding of the prevalence, characteristics, and impact of sexual victimisation on men. Additionally, the inclusion of questions pertaining to male sexual victimisation in general surveys can contribute to dispelling stigmas and misconceptions surrounding the issue. Recognising the challenges of addressing sexual misconduct among adult males, the question turns to the changes required to improve reporting and public policymaking concerning victims. One of the overarching conclusions based on the data and literature is the lack of procedural access to justice among victims. Access to justice under international law is a fundamental right that encompasses more than merely access to a courtroom (Lawson et al., 2020). It includes the ability to report criminality, to enter the justice system without prejudice against the victim, and to access victim services and assistance. The discrepancies between survey data and reporting demonstrate the procedural inability to access justice, in part due to a lack of trust and confidence amongst victims to seek comfort and assistance, often undergirded by what Hogan et al. (2021, 935) refer to as masculine values that are inconsistent with seeking help. A study by Walker et al. (2020) highlights the challenges of reporting at both family, friend, and criminal justice levels facing male victims. The survey of 143 male victims of intimate partner violence found that even among the victims’ families and friends, many failed to take the allegations seriously, either downplaying the seriousness of the assault or laughing at the victim. Similarly, the victims surveyed also encountered cavalier attitudes among the police, either dismissing the seriousness of the allegations or doubting the allegations in the first place. Many victims chose not to go to the police all together, believing that gender bias, the lack of a witness, or the insignificance of the violence would prevent police action against the perpetrator (Walker et al., 2020). Although an overarching aspect of sexual misconduct against men is the emasculating outcomes perceived by victims, it is the obligation of the government to create a means of reporting that helps victims overcome these identifiable challenges and adequately access justice. For example, in Spain, the Family and Women’s Unit of the National Police Force provides female-victim-centred support for women alleging sexual misconduct. Through established protocols, from women being escorted to the Unit in an unmarked vehicle to access to police officers specifically trained to support female

The Sociological Criminology Behind Male Adult Victim Sexual Misconduct  39

victims of sexual misconduct, there has been an effort to expand reporting and overcome many of the barriers limiting women’s access to justice. Other actions, such as hotlines with specially trained counsellors in male sexual violence and police units trained in dealing with male victims, may help foster greater access to justice. Thomas and Kopel (2023, 14) argue that the specific circumstances of male sexual misconduct “…necessitates unique sensitivity to creating a haven for them to process the incredible and ineffable pain...”. Goodwin (2019) demonstrates through her work on lenient sentencing for female-on-male perpetrated sex crimes in the United States that the lack of seriousness with which the criminal justice is perceived to adjudicate male sexual victimisation is not just a perception by victims but often a real outcome. She points to a number of statistics and cases showing that female perpetrators (against males or females) are less likely to be prosecuted, and even when they are, sentencing is often less harsh than if the crime involved a male-on-female perpetration. Training for judges and prosecutors on male sexual violence is often lacking in the judicial sector. For example, in Canada, a change to the Judges Act (Bill C-3, 2021) requires new judges to now undergo training on sexual assault in order to prevent biases, myths, and stereotypes from influencing decision-making (Department of Justice Canada). This bill came about in response to a number of lower court cases that were overturned by the Supreme Court because of their reliance on myths and stereotypes about women. While this training likely focuses primarily on female victims, it is important that trainings of this nature also include a gender focus on males to break many of the preconceived notions discussed throughout this paper that lead to the denial of justice for male victims. A relevant question to consider in the U.S. context is how to eliminate this bias also among juries, which are the triers of fact in most criminal cases. Considerations to eliminate biases in these cases may include a particular voir dire on identifying bias (and excluding jurors), a greater reliance on bench trials, or, as some evidence supports, the use of jury instructions that address implicit bias (National Centre for State Courts).

Conclusion This study began by analysing the historical development of sexual misconduct laws in Spain and New York State, highlighting how gender-specific language was traditionally used to understand this form of criminality. Not surprisingly, as this chapter suggests, these laws have reinforced a common view within society that only males can perpetrate sexual violence and only females can be victims. Nevertheless, despite modifications to the laws in both jurisdictions, sexual violence is still often conceived as a male-on-female crime, even though a survey of data and literature suggests that prevalence rates of male victimisation are higher than previously understood. Consequently, many males fail to report sexual victimisation for a broad range of reasons, from a feeling of emasculation to a perception that the criminal justice system will not take their allegations seriously. In addition, data on male sexual misconduct is often missing or not disaggregated, resulting in public policy that ignores the very real phenomenon of male victimisation. This study has sought to shed light on the rate of male victim sexual violence and offer a number of recommendations, both in terms of data collection and public policy, in order to more adequately prevent this crime and provide resources to assist victims. In no way does it seek to downplay the very real and very high rate of sexual violence perpetrated upon women, who compose the majority of victims, but rather demonstrate that sexual misconduct affects both sexes and that effective remedies in policy and law need to be developed.

40  Forensic Justice

References 1. Alonso de Escamilla, A. 1989. El delito de violación: la conducta típica. In Anuario de derecho penal y ciencias penales (42, 2), 571–592. 2. Alvazzi del Frate, A. & Van Kesteren, J. 2004. Key Findings of the 2000 International Crime Victim Surveys. United Nations Interregional Crime and Justice Research Institute (UNICRI). 3. Andrés Pueyo, A. et al. 2020. Análisis empírico integrado y estimación cuantitativa de los comportamientos sexuales violentos (no consentidos) en España. Madrid: Ministerio del Interior. 4. Ballesteros Doncel, E., & Blanco Moreno, F. 2021. Las estadísticas de criminalidad sexual en España: una propuesta de caracterización. in EMPIRIA. Revista de Metodología de Ciencias Sociales (50), 137–174. 5. Basile, K.C., Smith, S.G., Kresnow, M., Khatiwada S., and Leemis, R.W. 2022. The National Intimate Partner and Sexual Violence Survey: 2016/2017 Report on Sexual Violence. National Center for Injury Prevention and Control, Centers for Disease Control and Prevention. 6. Biderman, A. 1981. Sources of Data for Victimology. In Journal of Criminal Law and Criminology (72, 2), 789–817. 7. Bishop, K. 2018. A Reflection on the History of Sexual Assault Laws in the United States. In The Arkansas Journal of Social Change and Public Service. Available in https://ualr.edu/socialchange/2018/04/15/ reflection-history-sexual-assault-laws-united-states/. 8. Cabrera Martín, M. 2019. La victimización sexual de menores en el Código Penal español y en la política criminal internacional. Madrid: Dykinson. 9. Daigle, L.E. 2017. Victimology. A Text/Reader. Sage Publications. 10. Díez Ripollés, J.L. 1991. Las últimas reformas en el Derecho penal sexual. In Estudios Penales y Criminológicos (15), 42–108. 11. Díez Ripollés, J.L. 2004. Delitos contra la libertad e indemnidad sexuales. In Comentarios al Código Penal. Parte Especial. II, ed. J.L. Díez Ripollés and C.M. Romeo Casabona, 211–389. Valencia: Tirant lo Blanch. 12. Goodwin, D. 2019. “Anything You Can Do, I Can Do Shorter”: An Analysis of Lenient Sentencing for Female Sex Offenders in the United States. In William & Mary Journal of Race, Gender, and Social Justice (25), 433–459. 13. IFRC (2018) ‘The Responsibility to Prevent and Respond to Sexual and Gender-Based Violence in Disasters and Crises’, available at https://oldmedia.ifrc.org/ifrc/wp-content/uploads/2018/07/17072018SGBV-Report_Final.pdf (last accessed 16th May 2023). 14. Javaid, A. (2015) Male Rape Myths: Understanding and Explaining Social Attitudes Surrounding Male Rape. In Masculinities and Social Change, (4, 3), 270–294. 15. Lewis, D. A. 2009. Unrecognized Victims: Sexual Violence Against Men in Conflict Settings under International Law. In Wisconsin Journal of International Law (27), 1–49. 16. Liakopoulos, D. 2018. Male Rape and Sexual Crimes in International Criminal Law Jurisprudence: A Critical Appraisal. In Revista de Estudios Jurídicos (18), 1–34. 17. Loxton, A., and Groves, A. 2022. Adult male victims of female-perpetrated sexual violence: Australian social media responses, myths and flipped expectations. In International Review of Victimology (28, 2), 191–214. 18. Ministerio del Interior. Secretaría de Estado de Seguridad. Dirección General de Coordinación y Estudios. 2021. Informe sobre delitos contra la libertad e indemnidad sexual. 19. Ministerio del Interior. Portal estadístico de criminalidad (Crime Statistics System – SEC – of the Ministry of the Interior). https://estadisticasdecriminalidad.ses.mir.es/publico/portalestadistico/. 20. Muñoz Conde, F. 1989. Los delitos contra la libertad sexual. In Estudios penales y criminológicos (13), 267–296. 21. New York State Coalition Against Sexual Assault (2022), Survivor Survey Report: Sexual Assault Survivors’ Experiences Getting Help in New York State, available at: https://www.nyscasa.org/survivor-survey-report/ (last accessed 16 May 2023).

The Sociological Criminology Behind Male Adult Victim Sexual Misconduct  41 22. New York State, Division of Criminal Justice Statistics, Domestic Violence Victims Reported in 2021, available at: https://www.criminaljustice.ny.gov/crimnet/ojsa/domesticviolence2021/index.htm (last accessed 16 May 2023). 23. Orts Berenguer, E., y Suárez-Mira Rodríguez, C. 2001. Los delitos contra la libertad e indemnidad sexuales. Valencia: Tirant lo Blanch. 24. The People v. Fryman, 4 Ill.2d 224 (1954). 25. The People of the State of New York, Respondent, v. Mario Liberta, Appellant. No. 597. Court of Appeals of New York. 64 N.Y.2d 152; 474 N.E.2d 567 (1984). 26. Polaino Navarrete, M. 1975. Introducción a los delitos contra la honestidad. Sevilla: Publicaciones de la Universidad de Sevilla. 27. Ramos, R. (Coord.), Fabra Florit, M.E., Redondo Palomo, R., Dubin, A., Martínez García, C., Paul Larrañaga, K. 2018. Los costes de la violencia contra la infancia. Madrid: Educo / Universidad Pontificia Comillas. 28. Russell, W. 2007. Sexual Violence against Men and Boys. In Forced Migration Review (27), 22–23. 29. Sable, M.R, Denis, F., Mauzy, D.L. and Gallagher, S. 2006. Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students. In Journal of American College Health (55, 3), 157–162. 30. Sivakumaran, S. 2007. Sexual Violence Against Men in Armed Conflict. In The European Journal of International Law (18), 253–276. 31. Smith, C.J. 1974. History of Rape and Rape Laws, In Women Lawyers’ Journal (60, 4), 188–191. 32. Stemple, L., Flores, A.R. and Meyer, I.H. 2017. Sexual victimization perpetrated by women: Federal Data Reveal Surprising Prevalence. In Aggression and violent Behavior (34, 4), 302–311. 33. Stemple, L., and Meyer, I.H. 2014. The Sexual Victimisation of Men in America: New Data Challenge Old Assumptions. In American Journal of Public Health (104, 6), e1–e8. 34. Sutton, D, Victimisation of Men and Boys in Canada 2021, Juristat, Government of Canada, available at: https://www150.statcan.gc.ca/n1/pub/85-002-x/2023001/article/00001-eng.htm (accessed May 21, 2023). 35. Tarre Moser, P. and Leyva Morelos-Zaragoza, S. 2015. Violencia sexual contra el hombre: avance jurisprudencial de la Corte Interamericana de Derechos Humanos. In Revista Internacional de Derechos Humanos (5), pp. 69–90. 36. Tchen, C. 1983. Rape Reform and a Statutory Consent Defense, In Journal of Criminal Law and Criminology (74, 4), 1518–1555. 37. Thomas J.C. and Kopel, J. 2023. Male Victims of Sexual Assault: A Review of the Literature. In Behavioral Sciences (13, 4), 1–22. 38. Thompson, A., & Tapp, S. 2022. Criminal Victimization 2021, United States Department of Justice, NCJ 305101. 39. Turchik, J.A. and Edwards, K. M. 2012. Myths about male rape: A literature review. In Psychology of Men & Masculinity, (13, 2), 211–226.

Chapter 3

Role of Forensic Criminology in Access to Justice—A Critical Analysis Arvind Tiwari and Sonali Kusum

Abstract: Forensic Science emerged in the Roman era as an applied branch of science in criminal and civil laws enforced by police and courts under criminal and civil laws. There has been a gradual development of teaching, training, research, and development of forensic science in India with the setting up of Central and State Forensic Science Laboratories, the Bureau of Police Research and Development, and teaching Departments of Forensic Science in various universities such as Sagar University, the National Institute of Criminology and Forensic Science under the Ministry of Home Affairs, the Government of India (now known as NFSU, Delhi Campus), and the National Forensic Sciences University (NFSU), among others. Simultaneously, forensic law emerged as a major branch of Criminology and Criminal justice, addressing the importance of forensic evidence in fair crime investigation. Criminology, as an academic discipline, besides addressing theories and causes of crime, has also given more attention to the sentencing process (crime, criminal, and proportionality tests), as discussed by the Apex Court in State of Madhya Pradesh v. Udham, reported in (2019) 10 SCC 300, which states that sentencing for crimes has to be analyzed on the touchstone of three tests, viz., the crime test, the criminal test, and the comparative proportionality test. Forensic criminology has strongly upheld the right to access to justice in cases of crimes against women and children through the existing statutes, such as the Protection of Children from Sexual Offences Act, 2012, which provides for medical examination and medical opinions, and the Indian Evidence Act, which deals with the provision calling for Experts by courts; the Malimath Committee’s (Committee on Reforms in the Criminal Justice System relating to Forensic Science) 2003; and Criminal Reform 2013, which recommends the role of forensic science in crime investigation. Accordingly, the judiciary of India in K.S. Puttaswamy (Retd.) v. Union of India (2019) laid emphasis on forensic evidence, medico-legal examination, fingerprinting, and DNA profiling. In several cases, conviction is based solely on forensic evidence, proving guilt beyond a reasonable doubt, overriding hostile witness testimony in Abdulwahab Abdulmajid Baloch v. State of Gujarat and Ajayvir Singh v. State of Haryana. In Anita Kushwaha vs. Pushap Sudan, it was held that access to justice is a fundamental right guaranteed under Article 21 of the Constitution of India, and at the international level, in Raymond v. Honey (1983) and R v. Secretary of State for Home Dept. (1993), it was held that access to justice is a basic human right under Magna Carta 1215, the Universal Declaration of Human Rights (UDHR) 1948, and the International Covenant on Civil and Political Rights (ICCPR) 1966. There are several challenges in expediting access to justice, such as a lack of

Role of Forensic Criminology in Access to Justice—A Critical Analysis 43

forensic infrastructure, skilled human resources, and awareness about the specialized procedures. As seen in Ram Udagar Mahto vs. State, 2021, there was almost a year delay in collecting forensic samples. In view of the emergence of forensic criminology and its impact on access to justice, this is highly significant. The present article focuses on Forensics as an Applied & Behavioural Dimension of Criminology, Criminalistics Implicit in Forensic Criminology, Forensic Criminology as the New Feature of Criminology, and the significance of Forensic Criminology in strengthening access to Justice for vulnerable & marginalized sections of society. Keywords: Forensics, Criminology, Criminalistics, Cyber Forensics, Access to justice, POCSO Act

Introduction The term “criminology” is derived from the Latin word “crimen” (crime) and the Greek word “logos” (science). The term criminology emanates from the magnum opuses of French anthropologist Paul Topinard, who used the French term “criminologie” in 1879. In 1885, Italian sociologist Raffael Garofalo espoused Topinard’s term criminology and defined it as “Criminologia”, a science that studies crimes. He also wrote a textbook with the title “Criminology” (Renneville, 2018). Thus, criminology is defined as “a body of knowledge regarding crime as a social phenomenon. It includes within its scope the processes of making laws, of breaking laws, and of reaction toward the breaking of laws” (Sutherland et al., 1992). Sacco & Kennedy define criminology as “an interdisciplinary science that attempts to understand (a) the factors that prompt or fail to inhibit criminal motivation, (b) the circumstances leading up to the act, and (c) the consequences of the act for the victim(s), for others in the community, and for society at large” (Sacco et al., 2002). According to Subert and Niksova, criminology is “an independent science focusing on (a) the essence of crime as being a consequence of the collective, dangerous social act; (b) the condition, structure, dynamics, and tendencies of crime; (c) the circumstances and reasons for committing the crime; (d) the personality of the offender; (e) the importance of the victim of crime; and (f) target-oriented activities to prevent crime. Criminology involves research into the negative social features defined in criminal law, such as crime itself, offenders, victims, conditions and causes of crime, sanctions and punishments, and the prognosis of crime progress” (Metenko et al., 2014). One of the facets of criminology is crime prevention and control by understanding the objectives or motives behind the commission of the crime, imposing punishment, and formulating sentencing policy, including humanistic consideration. Criminology has within itself three broad divisions, namely “Sociology of Crime,” which is a study of the social aspects of crime. “Criminal Etiology” is an effort at a scientific and systematic investigation of the causes of crime. “Penology” is the scientific approach to understanding the nature of crime commission, punishment, and sentencing (Rarh et al., 2014). Criminology has a broad scope, including facets of different disciplines such as biology, sociology, law, and psychology. Some of the emerging areas include interdisciplinary fields such as victimology, forensics, criminalistics, forensic sciences involving criminalistic techniques, and the futuristic scope of forensics such as cyber forensics, among others. All these are within the wider penumbra of criminology.

44 Forensic Justice

Forensics as an Applied and Behavioral Dimension of Criminology The term “forensic” is derived from the Latin term “forensis” meaning “of or before the forum”. Forensic Science is the application of scientific methods and laws to the criminal justice system. Forensic Science is defined as “the use of scientific methods or expertise to investigate crimes or examine evidence that might be presented in a court of law” (Forensic Science NIST). In simple terms, forensics means the application of science and scientific techniques to the law. For the same reason, the forensic sciences involve criminalistics in their investigation techniques. There are certain foundational principles of forensic science that are implicit in their application, as follows: • Law of Individuality. • Principle of Comparison. • Law of Circumstantial Facts. • Law of Probability. • Principle of Exchange. • Law of Progressive Change. • Principle of Analysis. • Locard Principles, developed by Prof. Edmand Locard, University of Lausanne, Switzerland in 1928 states that, i.e. “When any two objects come into contact, each of them will leave its traces on to the other”. • Law of Individuality—Every object naturally including human beings, animals, plants, leaves or man-made including guns, bullets, shoes, pens, paper, animate or inanimate, has some individuality/uniqueness of its own which is not repeated in any other objects. • Law of Progressive Change—Everything in the Universe undergoes a change as time progresses. People undergo change with the passage of time. Criminals disguise themselves or adopt alibi to hide their identity. • Principle of Comparison—The principle of comparison is based on the hypothesis that only like things can be compared. • Principle of Analysis—The analysis can be no better than the sample itself. Hence the importance of the proper collection of samples and also its integrity and chain of custody is of great significance. • Law of Probability—All identifications, definite or indefinite, are made consciously or unconsciously based on Probability (Thakkar and Kumar).

Criminalistics Implicit in Forensic Criminology The term “criminalistics” includes “technical and scientific tests or examinations of evidence in criminal investigations carried out in laboratories and in the field either when a crime is suspected, or crime occurs for detection, prevention, and prosecution of crime” (“Research in Forensic Science and Technology” US Department of Justice National Institute of Justice). “Hans Gross”, is referred to as the “father of criminalistics”. “Alphonse Bertillon”, “Luke S”. developed the scientific method of “identification of repeat offenders” by using recorded body measurements of such history sheeter criminals. Forensic Science Laboratory (FSL) employs criminalistics, and forensic experts apply criminalistics for the investigation of crimes. Hence, Criminalistics is referred to as the “sub set of forensic criminology”. “Criminalistics” is held as close to equal with “forensic science”. According to this model, forensic science uses criminalistic techniques employed for technical solutions of judicial problems.

Role of Forensic Criminology in Access to Justice—A Critical Analysis  45

Criminalistics is an independent science that “examines the manifestation of the event in the form of physical and memory characteristics”. The “Criminalistics distinguishes between “evidence” and “trace evidence”. “Evidence” is a term for proving something and is basically regarded as proof, whereas “trace evidence” is meant as an imprint used for identification. Trace evidence is the object of the science of criminalistics. Criminalistics differentiates two types of trace evidence: physical (material) and mental (memory)” (Metenko et al., 2014). The modern criminalistics has two main groups, criminalistic techniques, and criminalistic tactics. “Criminalistic techniques focus on an examination of material (physical) trace evidence”, while “criminalistic tactics examine mainly memory trace evidence.” The investigative methods developed with the evolution of the history of criminalistics. The first ever method used in criminalistics was “an interrogation”, followed with “anthropometric method or a detailed measure-based description of a person” and “dactyloscopy or fingerprint analysis”. In 1879, French police officer “Louis Alphonse Bertillon” introduced “anthropometry” as an identification method based on measurements of human body parts. The introduction of the anthropometric method for the purpose of personal identification was a significant event in criminal investigation history which laid foundations for modern criminalistics. The founder of fingerprint analysis is considered to be “Czech scientist Jan Evangelista Purkyne”. However, an “Englishman Henry Faulds in 1880” introduced its real application of fingerprint analysis. These ushered development of criminalistics across the world. This paved the way for developing a stream of “Forensic Criminology as a specialized study of crime investigation, evidence collection, and production with the fusion of science and criminalistics techniques and standards”.

Forensic Criminology as the New Feature of Criminology While Criminology is “the scientific study of crime, criminal behavior, and efforts to regulate crime, criminology is not only a behavioral science but also an applied science and science of applied techniques and social control” (IGNOU), whereas “forensic criminology is a discipline within criminology in the nature of behavioral science, involving practice and application of scientific investigative methods as forensic science. Thus, forensic Criminology is the scientific study of crime and criminals for the purposes of addressing investigative and legal issues” (Petherick, 2010). “Forensic” refers to the application of specific acquired knowledge to a legal discussion or debate. “Forensic criminology is a behavioral and forensic science, characterized by an integration of material from many sub-disciplines including forensic science, criminal investigation, criminalistics, forensic psychology, victimology, crime reconstruction, criminal event analysis, criminal profiling, practical experience, and more” (James, 2023) Forensic Criminology involves the actual application of forensic sciences and criminalistics in redressing criminal justice issues of crime investigation, evidence collection, preservation, analysis, and production before the court of law, trial, and prosecution. This is aimed at resolving legal issues of sentencing, conviction, and access to justice for the victims of crimes and society. Some of the common pieces of forensic evidence collected by law enforcement agencies during the investigation of sexual offenses include bite marks, fingerprints, footprints, cyber evidence such as phone clippings, social media clippings or posts, video recordings, etc. These are also referred to as “forensic footprints”. These are presented before the Court of law as valid and legitimate evidence for the prosecution and trial of cases. The forensic techniques involve a fusion of science and law for the examination of the aforementioned materials. This involves DNA analysis, serology, chemistry, dental analysis, narcoanalysis, polygraph, and brain mapping.

46  Forensic Justice Forensic Criminology implies the inter nexus between the scientific techniques of criminalistics in view of the legal provisions and regulations to address the needs of the criminal justice system. In general parlance, it is often said that “forensic science is the place where science meets the law” (Jayewardene, 2023). The first and foremost principle of forensic science, the Locard Principle, is the most significant one in establishing a chain and trace of evidence. This is exemplified under the criminal law; this is manifest from the Indian Evidence Act (Section 27), 1872, which includes the tracing of information and facts from the person accused of any offense in the custody of a police-officer either amounting to a confession or not may be proved or otherwise. Under different legislation, there is a provision for calling for forensic evidence or calling for an expert report or scientific or technical report as evidence before the Court of law. Under Section 293 Cr.P.C., calls for “reports from certain Government scientific experts”, Chemical Examiner, Director of Fingerprint Bureau, and reports from the Government scientific experts can be used as evidence. These reports have legitimate evidentiary value as per the Indian Evidence Act. Under the Indian legal framework, the legal mandate of using forensics in the criminal justice system involving investigation, court trial, prosecution, conviction, and sentencing is provided under the Indian Constitution. The Article 20 of the Indian Constitution provides a safeguard against self-incrimination as the vanguard of personal liberty under Article 21 of the Indian Constitution. However, the Judiciary, through progressive interpretation in a catena of cases, have upheld the significance of forensics and criminalistics. In State of Bombay v. Kathi Kalu Oghad held that “collecting DNA samples, impressions are relevant for forensic examination and these are lawfully permitted by the direction of Supreme Court (SC)”. In this case, SC held “giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression ‘to be a witness’,. ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise”. Thus, this is exempted from the protection under Article 20 of the Indian Constitution, the same is reiterated in Selvi Vs. State of Karnataka. Similarly, there is a provision that “witness not excused from answering on ground that answer will criminate (Section 132 of Indian Evidence Act, 1872). Hence, there is scope for the applicability of criminalistics and forensic techniques for generating evidence. In Dalli v. State of U.P, the Court laid emphasis on use of scientific techniques such as DNA profiling in aid of criminal investigation. In Amandeep Singh vs The State of Punjab and Ors. The Punjab and Haryana High Court observed that “Forensic Science Laboratories provide the best scientific evidence to enable courts to administer justice and are an inseparable part of the justice dispensation mechanism considering an increase in crime rate especially against women and children”. In the recent past, in 2019–2020, in RM. Arun Swaminathan Vs. Government of Tamil Nadu (The Principal Secretary to the Government, Health and Family Welfare Department) ((W.P.(MD) No. 78 of 2019) has reiterated the valuable judicial directives laid down in Muniammal V. The Superintendent of Police and others, 2007, Court held that “medical evidence” is a scientific factor, which plays a crucial role in determining many of the crimes perpetrated against the human body. Further, the know-how in “Forensic Medicine” on the part of Medical Officers is of utmost significance for “Justice Delivery System”. Thus, this direction brings in the fusion of forensic criminology in the criminal justice system. The Madras HC has issued the following directions: • To give utmost importance to the teaching – research and practice of forensics and criminalistics in medico-legal cases by medical professionals and law enforcement agencies.

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• To increase the teaching of forensics so as to facilitate a better understanding of the nuances of Forensic Medicine in the early years of a clinical study and to appreciate the importance of forensic principles applicable to the given circumstances. • The expertise of Forensic Medicine Experts may be availed of to train the Medical Officers to guard against the loss of valuable evidence. • The Police Department is directed to issue further directions to the Investigating Officers (IO) of the crimes to get “the final opinion of forensic experts” as regards “the nature of wounds in injury cases” and the time and cause of death, especially in cases of unnatural death. • Forensic expertise and expert opinion may check for any slipshod or improper investigation in the cases handled by the police. This would strengthen the wound certificates or post-mortem certificates as well. These guidelines are directed to the State Government, and concerned authorities will be farreaching in implementing the practice of forensics in the criminal justice system, which will improve the credibility of evidence collection. Similarly, under the Indian Evidence Act (IEA), 1872, which provides scope for the applicability of forensics (section 27), information received from an accused may be proved. Further, the IEA Act provides that the “evidence of an expert can be led” (Section 45 of the Indian Evidence Act). The Code of Criminal Procedure (Cr. P.C.), 1860, provides “Examination of accused by medical practitioner at the request of police officer” (Section 53 of Cr. P.C.). The Cr. P.C. was amended by the Cr. P.C. (Amendment) Act, 2005, including “Section 53A of the Code of Criminal Procedure”, dealing with a detailed medical examination of the person accused of rape by a medical practitioner. This enables the collection of biological evidence, such as blood, human body fluids, DNA Profiling, blood stain examination, and semen test, so as to build a “chain of custody’ of samples from the suspect or accused that may be sent to FSL for forensic examination. Section 164 A of the Cr. P.C. provides for the medical examination of the victim of rape by a registered medical practitioner by a medical expert within twenty-four hours from the time of receiving the information relating to the commission of such an offense with her consent. This enables a forensic examination of the same. The nature of forensic evidence is secondary in nature (Section 63 of the Indian Evidence Act, 1872). In many cases, it requires corroboration. However, corroboration is not always a mandatory rule.

Emerging Branch of Forensics Criminology as Cyber Forensics Forensics generally means the use of science and technology to establish facts in courts of law. Forensics, prefixed by the word cyber, means the application of forensics in cyber space, digital or electronic medium bearing upon the cyber or electronic evidence. “Electronic evidence” is defined as the collection, preservation, analysis, and court presentation of computer-related evidence. In India, after the enactment of the Information and Technology Act, 2000 consequent amendments in the Indian Evidence Act, 1872, and the Indian Penal Code, 1860, “an electronic record” is admissible evidence in criminal legal proceedings. Forensic labs are notified as “Examiners of Electronic Evidence” under Section 79A of the Information Technology Act 2000. The “Cyber Forensics” is a branch of forensic science that is aimed to restore, collect and examine the digital evidence of materials found in digital devices in relation to cybercrimes. In cybercrimes, investigation of the same requires scientific knowledge, techniques through forensic evidence, and forensic methods of investigation, which is called as “which is called Cyber Forensics” (eGyanKosh).

48  Forensic Justice The cyber forensics is divided into two broad categories as “network forensics” and “computer forensics”. “Network forensics is the process of capturing, analyzing and reporting on online or digital medium or network to identify suspicious activity so as to investigate data breaches, malicious virus attack”. “Computer forensics is the process of recovering and analyzing data from computers or electronic devices to investigate crimes such as child pornography, identity thefts among others” (European Union Agency for Cyber Security, 2021). The history of cyber forensics can be traced back to the early 1980s, emanating from the USA, with the “Cuckoo’s Egg title” referring to the experiences of the American hacker group. This originated in the USA in 1986, when Cliff Stoll published a book called The Cuckoo’s Egg, describing the process of copying data from a remote computer without authorized access or hacking into the code. It is popularly stated that the father of cyber forensics is Michael Anderson, who was heading the FBI CART program, which was previously known as the “Magnet Media Program.”

Rising cyber crimes & scope of cyber forensics in India There is a rising incidence of cybercrimes across India. “Around 10,834 cases of cybercrimes were reported in the year 2022, as against 14,315 cases of cybercrimes were reported in the year 2021” (The Hindu, 2022). Cybercrimes against women and children include these Cyber Stalking, Sextortion, Cyber Hacking, Cyber Bullying, and Cyber pornography, among others. “It is reported that around 17,460 anonymous complaints related to cybercrime against women and children in the year 2020. Whereas, around 56,102 complaints related to cybercrime against women and children were filed in the year 2022” (Indian Today, 2023). This indicates a jump in numbers by over three times increase in the same, which is alarming! One of the commonly reported cyber crimes against women and children are instances of cyber crimes against children such as Child Pornography. The term “cyber pornography” is described as “an act of possessing image or video of a minor (under 18), engaged in sexual conduct” (The US Dept. Of Justice, 2023). In the year 2021, the Union Territory of Delhi reported the highest number of more than 160 cases of “cyber child pornography”. Overall, across the country, around 969 cases of cyber child pornography were reported (Indian Express, 2022). India has one of the large networks of child pornographic websites reflecting online child sexual abuse in India. In a few of these cases, both the accused and the victim are children. Interpol estimates that “more than 24 lakh online child abuse are reported from 2019 to the 2022 year in India” (Deccan Herald, 2022).

Significance of cyber forensics in cyber crimes & sexual offenses in India Cyber or Computer forensics is the science of collecting, inspecting, interpreting, reporting, and presenting computer-related electronic evidence. Cyberforensics is an aid to investigations in law enforcement. This is essential in the recovery of private or confidential information as electronic evidence, including existing or deleted documents or files, chat or text messages, emails, SMS, phone call registers or logs, phone call audio recordings, video recordings over the phone, and photographs or images on phones. The cyber forensics investigator’s task is to collect, examine, and safeguard electronic or digital evidence, which is indispensable in the investigation of cyber crimes. The cyber forensics investigation and verification make the electronic or digital evidence admissible as legit and valid evidence for all production before the Court of law during the legal proceedings. This is evident in the infamous Nirbhaya case, Mukesh v. State (NCT of Delhi), and Vinay Sharma v. State (NCT of Delhi); the conviction was based on evidence cogently corroborated by the recovery

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of a mobile Samsung Galaxy phone of the deceased victim from the applicant convict and forensic inputs such as DNA and fingerprint matches. In Justice K.S. Puttaswamy (Retd.) v. Union of India, a public interest litigation (PIL) is filed by K.S. Puttaswamy, J. (Retd.) in the Supreme Court (SC) of India. The SC dealt with a plethora of legal issues pertaining to the right to informational privacy and emphasized legal protection for the same. This judgment is imperative to forensic sampling since DNA and other biological and digital/cellular samples store invaluable personal information.

The Conceptualization & Trajectory of Access to Justice Movement in India According to Galanter, “access to justice” refers to access to “Government’s judicial institutions” and acquired a newer meaning in the late 1970s. The meaning of “access to justice” is the ability of an individual to avail of various institutions (judicial and nonjudicial) to pursue justice. Cappelletti and Garth define “access to justice has two prongs: first, that the legal system must be equally accessible to all; and second, that it must lead to individual and socially just results.” Therefore, the citizen must be able to approach and get his or her matter or dispute admitted into the court system. The concept of access to justice deals with only access to lawyers, expanding the scope of legal assistance, legal aid, legal assistance programs for the poor, and pro-bono lawyering. The history of the access to justice movement Mr. Cappelletti, the global level may be traced to the early 1960s–1970s, following the pioneering work of the “Florence Access to Justice Project” sponsored by the Ford Foundation undertaken by Mr. Cappelletti in 1978–1979 by undertaking a comparative survey of legal aid needs of marginalized sections of society so that their legal aid needs are met, and legal rights are enforced (Cappelletti et al., 1978). This work was published in four volumes, namely “Volume I. Access to Justice: A World Survey (edited by Messrs. Cappelletti and Garth)”; “Volume II. Access to Justice: Studies of Promising Institutions (edited by Mr. Cappelletti and Mr. John Weisner)”; “Volume III. Access to justice: Emerging Perspectives and Issues (edited by Messrs. Cappelletti and Garth)”; and “Volume IV. Patterns in Conflict Management: Essays in the Ethnography of Law – Access to Justice in an Anthropological Perspective (edited by Professor Klaus-Friedrich Koch)” (Sarat, 1981). The “access to justice” includes two basic purposes, “firstly, the system must be equally accessible to all. Secondly, it must lead to individual and socially just results” enforced (Cappelletti et al., 1978). The Cappelliti project was followed by Lord Woolf ’s, Report on Access to Justice, 1996, for reforming the civil justice system by integrating small claims track, the fast track, or the multi-track Court for the benefit of weaker sections of society. This subsequently led to the UK Access to Justice Act 1999. Similarly, in Australia, the Access to Justice Committee, 1976, was set up by the Australian Law Council Standing Committee to formulate legal aid funding policies, to facilitate access to justice issues for Indigenous people and regional, rural, and remote areas (“Access to Justice Committee” Law Council of Australia).

Legal Framework on Access to Justice in India for Marginalized Sections of Society The conception of justice and access to justice are manifested in the Preamble or the foreword stating social, economic, and political justice in the Indian Constitution. The chapter on “Fundamental

50  Forensic Justice Rights,” Part III, Article 14, guarantees equality before the law and equal protection of the laws to every person, including non-citizens. The constitutional policy directives under the “Directive Principles of State Policy, Part IV of the Indian Constitution” provide “that the operation of the legal system promotes justice on the basis of equal opportunity.” Under Part IV, Directive Principles of State Policy, Article 39 provides for free legal aid to poor, weaker, or marginalized sections of society who are not in a position to pay for the same. Similar provisions for free legal aid are provided under both Criminal and Civil procedural laws in India. Under the “Code of Criminal Procedure (CRPC), 1860”, “Section 304” of the Code of Criminal Procedure provides for state-funded or sponsored lawyers to represent the accused before the Court trials in case of his or her inability to pay for the same. The “Code of Civil Procedure, 1908” and “Order 33 of the CPC” (suits by indigent persons) also provide for free legal aid and representation by a lawyer free of charge in civil suits. In 1977, Justice Bhagwati and Justice Iyer submitted a report jointly named “National Juridicare: Equal Justice-Social Justice,” which suggested that there should be the establishment of an authority in the nature of “National Legal Service Authority (NALSA)” to provide legal aid and facilitate access to justice for all, especially the vulnerable and marginalized sections of society. This led to the enactment of the statute, the Legal Services Authority Act, 1987. Under the Act, certain sections of society are recognized as women, children, scheduled caste, Scheduled tribe (SC/ST), industrial workers, victims of disasters or trafficking, etc. Access to justice through legal aid in Suk Das v. Union Territory of Arunachal Pradesh, Justice Bhagwati observed access to justice through legal aid. Free legal assistance from the State is a fundamental right.

Judicial Developments on Access to Justice Movement for Marginalized Sections of Society in India In the trailblazer cases of the Indian Constitution, in Keshav Singh, L. Chandra Kumar v. Union of India, and Hussainara Khatoon v. State of Bihar, Court held that Article 39A made free legal service an inseparable and integral part of reasonable, fair, and just procedure as a facet of right to life, personal liberty under article 21 of Indian Constitution. In Imtiyaz Ahmad v. State of Uttar Pradesh & Ors. In Brij Mohan Lal v. Union of India and Ors., this Court declared that Article 21 guarantees to the citizens the right to a fair and speedy trial at the cost of state expenses in case a person is unable to fend for the same. In Tamilnadu Mercantile Bank Shareholders Welfare Association v. S.C. Sekar and Others, the Court observed that “an aggrieved person cannot be left without the remedy and that access to justice is a human right and even a fundamental right”. Access to justice by moving the Court is specifically recognized by Article 32 of the Constitution as a fundamental right as held in Re Article 143 case. Imtiyaz Ahmad vs. State of Uttar Pradesh and Ors The Supreme Court of India observed that timely justice is an important facet to access to justice. The immediate measures are the creation of additional courts to help in the elimination of delays, speedy clearance of arrears, and reduction in costs. It is trite to add that the qualitative component of justice must not be lowered or compromised.

Contemporary judicial pronouncements on access to justice In Anita Kushwaha vs. Pushap Sudan, the court held that access to justice is a fundamental right guaranteed under Article 21 of the Constitution of India. Any litigant whose fundamental right

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to access to justice is denied or jeopardized can approach this Court for redress under Article 32 of the Constitution of India for protection and enforcement of his or her right. Article 142 of the Constitution of India, read with Article 32, empowers this Court to intervene and issue suitable directions wherever such directions are considered necessary to do complete justice to the parties. “The concept of ‘access to justice’ as an invaluable human right, also recognized in most constitutional democracies as a fundamental right, has its origin in common law as much as in the Magna Carta. The Magna Carta lays the foundation for the basic right of access to courts”. Further, the importance of “Access to Justice” is expressed as “the right of effective access to justice has emerged with the new social rights”. In Amitbhai Anilchandra Shah vs. CBI and ANR The Supreme Court of India held that there are four main facets constitute the essence of access to justice as following: • The State must provide an effective adjudicatory mechanism; • The mechanism so provided must be reasonably accessible in terms of distance; • The process of adjudication must be speedy; • The litigant’s access to the adjudicatory process must be affordable. “Access to justice” as a constitutional value will be a mere illusion if justice is not speedy. Justice delayed is justice denied. Correspondingly, access to justice has been upheld in foreign legal jurisdictions. In Raymond v. Honey Lord Wilberforce described it as a ‘basic right’. It is a principle of our law that every citizen has a right of unimpeded access to a court. In R v. Secretary of State for Home Dept., ex p Leech Steyn LJ, the Court held that access to justice was a basic right which could not be denied or diluted by any kind of interference or hindrance. Llewelyn Evans AIR 1926 Bom 551 signified the recognition of access to justice as a valuable right by courts in India long before the commencement of the Constitution of India. The European Court of Human Rights in Delcourt v. Belgium held that access to justice was a valuable human and fundamental right relatable to Article 21 of the Constitution of India. Eshugbayi v. Officer Administering the Govt. of Nigeria recognized the concept of access to justice as the right of a citizen to move the Court as a valuable constitutional right.

Significance of Forensic Criminology in Strengthening Access to Justice for Marginalized Forensic science utilizes scientific principles and techniques for the detection and investigation of crimes, the results of which may be presented as scientific evidence in the courts of law. The Forensic scientist assists the courts of law in determining the existence of a crime and the identity of its perpetrator through scientific examination of crime evidentiary material. The crime investigation has to include Forensic scientists, whose initial actions can be crucial in identifying and collecting the relevant physical evidence material at the scene of the crime. The attendance of a Forensic scientist at the crime scene is the first step in the process of recovering contact trace evidence, without which the potential for using Forensic Science in the crime investigation process cannot be realized. The most important contribution that a Forensic scientist can make to the crime investigation process is the reconstruction of events from the evidence. Forensic science is an aid to crime investigation, commencing with the very first identification of the crime scene. Forensic evidence is important, and there are traces of forensic evidence to be collected from varied stages of crime investigation, such as the crime scene, post-crime scenes,

52  Forensic Justice the cause of death, and developments involving stakeholders such as the victim, the accused, case preparation, the identification of the culprit, and the accused. Forensic evidence is collected from the very scratch of the crime scene through photography, measurements and sketching, searching for evidence, marking/tagging evidence, the dusting of fingerprints, the collection–packing of evidence, interrogation, and witnesses among others. The measurements and sketching eye view Sketching or NajarNaksha are forms of forensic evidence. In Banshi vs. The State of Madhya Pradesh, or the Bolada Bajar Murder Case, forensic test, including the “Diatoms Test” was used post the scene of crime investigation. An autopsy examination was conducted in the same. In State Of Chhattisgarh vs. Anil Kumar Pandey, there was circumstantial evidence found that was subject to forensic examination and analysis. This circumstantial evidence includes fluids of human origin from the refrigerator, blood-stained clothes, and blood stains on the wall, which helped establish the proof and conviction beyond a reasonable doubt. In the State vs. Sushil Sharma or Tandoor murder case, the dead body was charred into the tandoor, but it was only possible due to DNA test examination and analysis for the identification of the victim. The second autopsy was conducted for the same cause. Legal Framework on Access to Justice for Women & Children as Vulnerable Section of Society under POCSO (Sexual Assault, Violence) and Cyber Crimes (Cyber Pornography) in India: The Constitution of India, under Part II, the chapter on fundamental rights, Under Article 14, provides for equal treatment and equal protection of the law for all. Under Article 15, there is a prohibition on gender discrimination on the grounds of sex and other differential grounds. Further, the state is allowed to make special provisions for women and children. Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. The Constitution of India, Under Part IV, Directive Principles of State Policy, under Article 39(f), provides that the State shall direct its policy towards securing, inter alia that the tender age of children is not abused and the health of women is safeguarded. Childhood and youth are protected against exploitation and against moral and material abandonment. Under the criminal procedural law, with reference to the Indian Penal Code (IPC), 1860, there are specific offenses constituted against women, including rape (Sec. 376 IPC), Assault on Woman with Intent to Outrage Her Modesty (Sec. 354 IPC), Sexual Harassment (Sec. 354A IPC), and Insult to the Modesty of women (Sec. 509 IPC). Under the Indian Criminal Manal, the Code of Criminal Procedure (Cr. P.C), 1973 was further amended by the Cr. P.C. (Amendment) Act, 2005, including “Section 53A of the Code of Criminal Procedure”, dealing with a detailed medical examination of the person accused of rape by a medical practitioner. Section 164 A of Cr. P.C. provides for the medical examination of the victim of rape by a registered medical practitioner by a medical expert within twenty-four hours from the time of receiving the information relating to the commission of such an offense with her consent. This enables a forensic examination of the same. Under the statutory law in India, there is a specific statutory enactment, namely the Protection of Children from Sexual Offences Act (POCSO) 2012. This Act has the objective of protecting children from offenses of sexual assault, sexual harassment, and pornography and establishing Special Courts for the trial of such offenses. The Act constitutes the offense of “exploitative use of children in pornographic performances and materials, prostitution, or other unlawful sexual practices” and provides punishment for the same. Under relevant chapters and sections of the Act, namely, Chapter III, Sections 13, 14, and 15 of the POCSO Act, it constitutes an offense against “Using Children For

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Pornographic Purposes And Punishment”. Further, Section 15 of the POCSO Act states that “the act of the accused persons to store, forward, and possess pornographic material involving a child is squarely covered under the same. Further, another specific statute, the Information Technology (I.T.) Act, 2000, the Cyber Law In India, Section 67-B of the Act, provides punishment for publishing or transmitting material depicting children in sexually explicit acts, etc., electronically. Similar provisions are provided under the Indian Penal Code (IPC), 1860. Sections 292 and 293 of the Indian Penal Code, 1860, make it illegal to sell, distribute, exhibit, or circulate obscene objects. The POCSO Act was enacted to protect children from sexual assault, sexual harassment, and pornography. In Attorney General For India vs. Satish, 2021, the Supreme Court of India observed that as the long title of the Protection of Children from Sexual Offence Act, 2012 states, the Act has been enacted to protect the children from the offenses of sexual assault, sexual harassment, and pornography and provide for the establishment of special courts for trial of such offenses and for the matters connected therewith. While enacting the said Act, Article 15 of the Constitution, which empowers the State to make special provisions for children, and the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, as acceded to by the Government of India, prescribing a set of standards to be followed by all the State parties in securing the best interest of the child, were also kept in view.

Role and Significance of Forensics – Criminalistics in POCSO (Sexual Assault, Violence) and Cyber Crimes (Cyber Pornography) in India The forensic evidence plays a very crucial role in POCSO (Sexual Assault, Violence) and cybercrimes (Cyber Pornography) cases, including sexual violence or assault cases and cybercrimes such as cyber pornography against women and children. The use of forensic evidence may be helpful in increasing the conviction rate, sentencing, and expeditious trial of cases. The rationale for the same is discussed briefly under the following:

Child forensic interviewing (CFI) The POCO Act provides for Child Forensic Interviewing (CFI), which provides information regarding abuse and perpetrators. A Child Forensic interview is a formal, structured interview technique that is used to investigate whether a child has experienced or witnessed physical or sexual abuse and, if so, to get disclosure. A specialized interviewer conducts the interview: a psychologist or someone with a similar education.” (Ministry of Women and Child Development). Information obtained from an investigative or forensic interview may be useful.

Appreciation of biological specimens Forensic evidence plays a very crucial role in sexual violence or assault cases against women and children. The key to scientific investigation is the timely identification of biological specimens as body fluids, collection and submission in FSL, medical examination, followed by forensic examination and analysis by forensic experts. The detailed examination of bite marks, nail scratches, bruises, and injuries by forensic experts The forensic investigation of fingerprints, voice samples, and DNA profiling is key to a scientific and fail-proof examination. This facilitates a time-bound investigation

54  Forensic Justice and the submission of substantial proof beyond reasonable doubt to support the facts before the Court.

Anonymous nature of sexual violence (Assault) and cyber crimes (cyber pornography) complaints It is observed that the nature of complaints against the offenses of Sexual Violence (assault) and cybercrime (cyber pornography) is mostly anonymous. As these crimes take place mostly in isolated or deserted places. Also, there are issues of privacy and dignity in reporting the same. There is a sense of taboo and shame associated with reporting the same to the victims as well. But due to its anonymous nature, the criminal investigation process suffers. This leads to a lesser number of FIRs, and police authorities investigating cybercrimes are unable to approach the complainants for additional corroboration or information”.

Testimony of a child, scope for tutoring, and turning hostile In POCSO Cases, the testimony of the child may not always be credible. In Dattu Ramrao Sakhare vs. State of Maharashtra, it is observed that the evidence of a child witness and the credibility thereof would depend upon the circumstances of each case. In Ratansinh Nayak vs. State of Gujarat, it was observed that the decision on the question of whether the child witness has sufficient intelligence primarily rests with the Court. In Arbind Singh vs. State of Bihar, it is observed that if the Court finds traces of tutoring of a child, corroboration is a must before evidence of a child witness can be acted upon.

Age determination In POCSO cases, one of the most common issues is the age determination of the accused and victim for culpability and sentencing. This is manifest in Jarnail Singh v. State of Haryana (2013), where the Court laid down these standards as follows: i) Matriculation Certificate, if not (ii) Date of Birth from School iii. (iii) Birth Certificate by the corporation, the municipal corporation of Panchayat; entry of Date of Birth (DoB) in school register is admissible. But in the absence of all these, the medical opinion of an expert is sought. This involves in many cases seeking the opinion of experts, including forensic experts from dental tests as one of the medical evidence as held in Sikkim v. Girjaman Rai Kami, 2019.

Need for substantial evidence, beyond reasonable doubt Mohammed Shabeer vs. State Rep., The Madras High Court observed the absence of scientific evidence as to the authentic and original source of the photograph in the cell phone of the accused, as the prosecution failed to prove that the photographs emanated from the cell phone of the accused. Thus, this case showed the need for cyber forensic investigation in the same way concerning cyber or digital investigation, digital sample collection, and analysis.

Conviction and sentencing based on DNA as forensic evidence for culpability, trial, and prosecution The heinous case of Nithari Murder, or Surendra Koli vs. State Of U.P. Ors., unraveled the shocking case of the killing of around thirty (30) children whose deceased bodies were found in the drain. The DNA test was the major tool used to identify these children’s bodies and ascertain their convictions.

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Analysis of cyber evidence and cyber pornography The cyberforensic evidence was produced before the Court for the purpose of establishing the conviction by adducing evidence beyond a reasonable doubt. In one of the popular cases, Santosh Kumar Singh vs. State through CBI, or the Priyadarshini Murder case, the investigation includes mobile, WhatsApp chatting, call logs, posts on social media on Facebook, SMS, text, etc. All this electronic or cyber evidence was produced with a certificate under the Indian Evidence Act. In one such recent case of the year 2023, before the Calcutta High Court in Riki Das, Babai, and Goutam Das vs. The State Of West Bengal & Anr., the electronic or digital documents and materials that were produced before the Court during the course of adjudication, including microSD chips, mobile phones, SIM cards, memory cards, and mobile phones, were subject to the Cyber Forensic and Digital Examination Laboratory Investigating Officer for detection of sexual harassment or sexual assault upon a child under Section 12 of the POCSO Act. The investigation conducted by the Cyber Cell and Forensic Team revealed that the contested cyberchild porn video was aired by the accused and his friends. Accordingly, cyber forensics proved useful for tracing the accused and establishing proof beyond reasonable doubt of the accused.

Issues and Challenges in Application of Forensic Criminology and Criminalistics in Redressing Crimes against Women and Child under POCSO ( sexual Assault, Violence) and Cyber Crimes ( Cyber Pornography) Limitations in functioning of access to justice delivery institutions As per the India Justice Report: Ranking States on Police, Judiciary, Prisons, and Legal Aid, October 2019, Tata Trusts has conducted research and compiled data on police, prisons, legal aid, and the judiciary. All these institutions face the problems of a lack of adequate funding, a deficiency in human resources or staff requirements, the need to upgrade infrastructure, the burden of workload on the existing staff, and a lack of representation, inclusion, and diversity in these institutions from all sections of society (Tata Trusts, the India Justice Report).

Contamination and manipulation of forensic evidence at the sampling level by law enforcement agencies There is the possibility of degradation, manipulation, contamination, and tampering with forensic evidence in many cases due to the lack of training for law enforcement officials, including Investigation Officers (IO). This affects the integrity of the reporting of forensic evidence. There are also reported cases of forensic fraud, as found in Rajiv Singh v. State of Bihar. In State Govt. of NCT of Delhi v. Khursheed, the Court found that there was tampering with the forensic evidence as the sample seal was broken. In an appeal, the High Court of Delhi noticed that there was something amiss in the FSL report.

Delay in submission of FSL samples (computer, mobile, audio-video forensics) and forensic reports The Karnataka High Court in Sri Naveen Kumar vs. State of Karnataka observed that the time taken for submission of reports, including computer/mobile/audio-video forensics, takes about one and a

56  Forensic Justice half years, this being the average time for the report to be submitted. For instance, in State vs. Mohan, the Delhi District Court recognized the delay in submission of the same. The Supreme Court in Pooja Pal v. Union of India and Others, Neetu Kumar Nagaich v. State of Rajasthan and Others, and Vinubhai Haribhai Malaviya and Others, The blood samples were seized and sent to the FSL for examination. However, the samples were not timely analyzed at the FSL and could only be examined after a delay of more than one year and four months from the date of their receipt at the FSL. The High Court of Madhya Pradesh, in Habu Sunil Motilal Bheel, vs The State of Madhya Pradesh, The High Court of Madhya Pradesh (MP) observed that “the investigating officer has slept over the forensic reports.” No efforts were made by the IO to get the DNA profiling done which has led to sheer injustice, The M.P. High Court directs the State to initiate an inquiry in accordance with law and proceed against the officer for negligence and dereliction of their duties. The High Court of Madhya Pradesh observed that “Forensic Science plays a vital role in the criminal justice delivery system providing the investigators with scientifically based information through analysis of physical evidence”. The Court directs that “it is the duty of the State Government to provide sufficient staff and competent officers for examination of the seized exhibits in the Forensic Science Laboratories for speedy and effective analysis and to furnish accurate forensic reports for the proper dispensation of justice delivery system.”

Assessment of quality and quantity of forensic labs and accreditation procedures The Malimath Committee on Reforms in Criminal Justice (2003) has highlighted that “the present level of application of forensic science in crime investigation is somewhat low in the country, with 5%–6% of the registered crime cases being referred to FSLs and Finger Print Bureau put together. The Committee observed that the number of FSLs in the country is grossly inadequate and highlighted the need for using forensic science facilities by police and law investigation agencies in criminal investigation.

Contemporary Legislative – Policy Developments Strengthening Forensic Criminology – Crminialistics towards Access to Justice in India Criminal procedure (Identification) Act, 2021 The Government of India has recently proposed the Criminal Procedure (Identification) Act , 2021. The Act has the main objective to authorize for taking measurements of convicts and other persons for the purposes of identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental thereto. The Act provides for the procedure including a standard operating procedure for obtaining forensic samples in the form of “measurements,” including finger-impressions, palm-print impressions, footprint impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioral attributes including signatures, handwriting or any other examination in consonance with the relevant provision of CRPC. The Act directs a police officer or a prison officer to obtain the measurements.

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Padmanabhaiah committee on police reforms The Padmanabhaiah Committee on Police Reforms was set up by the Ministry of Home Affairs, Government of India, in January 2000. The Committee recommended building world-class forensic science facilities, training the police to use forensic science facilities in criminal investigations, and ensuring that forensic reports achieve a reputation for integrity and impartiality”.

Forensic criminology in evidence-based policing: Involving research experts for quality evidence collection Forensic criminology encompasses “Evidence-based policing,” which allows for the search, collection, and production of good-quality evidence for legal purposes. Evidence-based policing involves coordinated work between research professionals using research, analysis, and laboratory techniques and police professionals who have access to field data from crime scenes as part of the investigation. (Sherman, 2015).

Ministry of home affairs (MHA), forensic guide for crime investigators (standard operating procedures) for law enforcement agencies Digital evidence uses the computer as a Repository of evidence, as the computer is used as a tool. A computer is used for the detection of cybercrimes such as Computer Fraud and cybercrimes. New types of crime, such as internet-based crime, computer-aided crime, etc., have emerged as a major challenge to law enforcement agencies. The Ministry of Home Affairs (MHA) provides for Standard Operating Procedures (SOPs) to be available to the IO, judicial officers, and prosecutors for better appreciation of forensic evidence and its references.

Government of India Legal and Policy Initiatives on the Development of Forensic Criminology to Redress Crimes Against Women and Children Ministry of health and family welfare, committee to standardize medical examination for victims of sexual violence and sexual assault, 2013 A Committee is constituted under the chairmanship of the Secretary of the Ministry of Health and Family Welfare (H&FW) to look into the plight of survivors and victims of sexual violence and sexual assault arising out of the Justice Verma Committee Report, 2012, particularly with reference to standardizing the medical examination protocols for them. This has emphasized Forensic medical examination in cases of sexual offenses and the submission of reports in a time-bound manner (“Guidelines and Protocols for Medico-legal Care for Survivors and Victims of Sexual Violence,” Ministry of Health and Family Welfare).

The ministry of health and family welfare, government of india, guidelines and examinations—Uniformity in proformae for medico-legal cases of victims of sexual violence, 2014 These guidelines have been formulated to ensure uniformity in approaching, treating, and documenting cases of sexual violence, mainly against women and girls, from rape cases to sexual and

58  Forensic Justice physical violence against women in India. The mandate for standardization and uniformity is taken after the Justice Verma Committee Report (“Guidelines and Examinations - Uniformity in Proforma for Medico Legal Cases of victims of sexual violence”, Ministry of Health & Family Welfare).

Government of India ministry of road transport and highways, “Nirbhaya Fund” scheme for women safety in public road transport, 2014 There is a detailed framework laid down for the operationalization of the scheme under the “Nirbhaya Fund” for security for women and girl children in public road transport in India. This includes mapping the routes of public vehicles, tracking the vehicles on the route, and video recording in public transport vehicles. The video recordings of public transport are a crucial piece of cyberforensic evidence sample.

Ministry of home affairs, use of forensic science in investigation of crimes against women, 2015 The Union Minister of State for Home Affairs, while addressing the valedictory function of the 23rd All India Forensic Science Conference and laying the foundation stone of CFSL, Bhopal, highlighted the theme of the Conference as “role of forensic science in countering crime against women”. The Union Minister reiterated strongly on the need for “more use of forensic sciences” for twofold objectives: a) in reducing pendency of cases, and b) in redressing crimes, especially crimes against women, in a time-bound manner (Union Minister of State for Home Affairs Kiren Rijiju Addresses Valedictory Function, 2015).

National human rights commission (NHRC) webinar on Forensic Science, 2020 The webinar was organized by NHRC that brought forth issues of the lack of an adequate number of forensic laboratories and manpower to handle the same in India. The NHRC recommended “to increase the number of forensic labs in proportion to the number of cases to avoid delay in administering justice” (NHRC Webinar on Forensic Science Setup Dominates the Sentiment, 2020).

Ministry of home affairs (MHA), proposal to make forensics mandatory in all crimes punishable with seven (7) years or above, 2022 MHA has declared that there is a proposal to make forensic investigation compulsory in all cases where the offense attracts a punishment of six years or more (Indian Express, 2022). The MHA has directed the establishment of an independent Directorate of Prosecution and an independent Directorate of Forensic Science in each State/UT. For effective criminal prosecution and trial, both the central and state governments should work in collaboration on a three-pronged approach to reforms in Police Investigation, Prosecution, and Forensics.

Contemporary Best Practices against Cyber Crimes and Cyber Child Pornography in India Constitution of a Special FSL team for POCSO Cases The Forensic Science Laboratory has formed a special team of six officials to collect evidence under the Protection of Children from Sexual Offences Act and rape cases as DNA samples, cyber evidence, and other evidence required for POCSO for fast-tracking of cases (The Hindu, 2019).

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Formulation of ‘Cyber Crime Prevention against Women and Children (CCPWC)’ Scheme “The Ministry of Home Affairs formulated a scheme called the ‘Cyber Crime Prevention against Women and Children (CCPWC)’ functioning under this, an online Cyber Crime reporting portal, (www.cybercrime.gov.in) has been launched to function as grievance redressal to report offenses or complaints anonymously or pertaining to Child Pornography/Child Sexual Abuse Material, rape/ gang rape imageries or sexually explicit content”. The Guidelines have been notified for the collection of “forensic evidence in sexual assault cases” and the standard composition in a “Sexual Assault Evidence Collection Kit”.

National commission for protection of child rights (NCPCR)’s POCSO e-box The POCSO e-box is developed by NCPCR, and launched by the Minister of Women and Child Development, a direct reporting channel or an avenue for reporting child sexual abuse under the Protection of Children from Sexual Offences (POCSO) Act, 2012. Children can register their complaints by emailing or through given phone call numbers (“Cyber Crimes against Children Can Now Be Reported at the POCSO E-Box,” 2017).

Parliament of India, Rajya Sabha, Department-Related Parliamentary Standing Committee on Home Affairs, Two Hundred Thirtieth Report, on Atrocities and Crimes Against Women And Children The Ministry of Home Affairs (MHA) recommends initiatives to prevent “crimes against women”. This seeks to enhance forensic sciences capabilities at national and state levels in the country, training to investigative and medical officers on forensic evidence preparation, notification, and standardized procedures for forensic evidence collection for dealing with sexual assault cases. The MHA has sought to bring all States on board by providing funds to establish forensic laboratories and modernize them to optimize their available resources. The MHA makes recommendations and takes actions. The MHA notes that conviction depends on various factors, including forensic analysis reports, the consistency of witnesses and victims during trials, etc. This is to facilitate the efficacy of law in preventing crimes against women and children, forensic facilities were strengthened. The MHA has conducted specific training on these tracks for better investigation by Law Enforcement Agencies as “Forensic Track: Targeting Digital Forensics: A specialist at States/UTs and Central Forensics departments/Labs”. Under the aegis of MHA, NCRB has also established a state-of-the-art e-Cyber Lab at NCRB Headquarters, New Delhi. The Lab is equipped with more than 25 of the latest Digital Forensics tools from industries and more than 50 open-source cybercrime detection and forensics tools.

Role of Academia—University in Development of Forensic Criminology as Academic Discipline In India, Criminology was first introduced as a separate subject in the syllabus of the Jail Officers’ Training School, Uttar Pradesh, Lucknow in 1940. A Diploma course in Criminology at the J. K. Institute of Human Relations and Sociology was organised at the University of Lucknow in 1949.

60  Forensic Justice From 1950 onwards, a series of deliberations were held among Shri K.F. Rustamji, the then IG Police, Madhya Pradesh, University Grants Commission in August 1961, Shri D. P. Kohli, the then Director, Central Bureau of Investigation in 1967, to bring the subject of Criminology and Forensic Science into the general stream of the University education so that (i) the country would get the required number of functionaries properly trained in these fields; and (ii) there would be a greater awareness and stimulation of thinking and research on the problems relating to crime and delinquency. Some of the existing teaching models of Criminology in existing Indian Universities are through the Central, State Government Departments offering Criminology, Criminal Justice Correctional Justice as Criminology & Forensic Science (Dr. Hari Singh Gaur Vishwa Vidyalaya, Sagar, Dharwad University, Mysore, Mangalore, Bundelkhand University, Rani Chennama University, Belgavi, etc. The Department of Criminology & Correctional Administration (TISS, Mumbai and other Schools of social Work), and Department of Criminology & Criminal Justice (University of Madras, Tirunelvelli, Tamil Nadu Open University, etc.) Further, study of criminology- forensics, has been included as “a specialised paper or subject” in Sociology, Psychology, Development Studies, and other social sciences conflict Management by Central Universities as Central University as Jharkhand University. The University Grants Commission (UGC) under the Curriculum Development Committee (Law), in its report, has suggested six clusters of specialization subjects for Masters in Laws (LL.M.), out of which one of the clusters pertains to criminology as a paper in Social Sciences and Humanities. Accordingly, the Law Schools and Law Universities offer LL.M. (Criminal and Security Law), with inclusion in Law Courses the subjects of Criminology such as Criminology and Criminal Justice Administration and Victimilogy. There is another initiative by the Central and State Government Police universities offering courses on Criminology through specific schools and centres offering criminology and police administration. This is offered by the National Institute of Criminology and Forensic Science (NICFS), Raksha Shakti University, Police University, Rajasthan (RRU), National Forensic Sciences University (NFSU), Punjab University, etc. Among these, notable contributions have been made by the National Forensic Sciences University (NFSU) in strengthening knowledge creation, research, training, community outreach, and field intervention in the arena of forensic sciences.

National Forensic Sciences University (NFSU) This is an institution of national importance to facilitate and promote studies and research and to achieve excellence in the field of forensic science. The NFSU is actively working with applied behavioral science studies, law, criminology, and other allied areas and technology and other related fields. The NFSU not only advises and assists the Central Government, State Governments, and Union Territory Administrations in the formulation of relevant policies, including their review in the fields of forensic science, but also coordinates with the Central Government and State Governments to improve investigation, crime detection, and prevention through projects and research. Some of the salient courses at NFSU on novel areas of criminology, such as forensics and cyber forensics, are “B.Sc.–M.Sc. Criminology and Forensic Science” is modeled after the mandate of the National Educational Policy (NEP), 2020. As recent as the present year 2023, there is an Integrated BA/ MA course on Criminology and Forensic Science at NFSU, Delhi campus. The other unique courses on forensics, cyber forensics are “M.A Criminology (with specialization in Forensic Psychology)” and “M.Sc. Digital Forensics and Information Security.” The specialized courses on forensics are

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“PG Diploma in DNA Forensics”, “PG Diploma in Forensic Document Examination”, “PG Diploma in Crime Scene Management”, PG Diploma Crime Scene Photography”, and “PG Diploma Fingerprint Sciences”, among others. The NFSU has state-of-the-art research Centres, namely “Forensic Innovation Centre”, Centre for Humanitarian Forensics.” The NFSU has been organizing international conferences, seminars, skill building, capacity development, and conducting training of trainers (ToT) program, and academic – professional outreach for disseminating knowledge on criminology forensics in society. The NFSU, Centre for Excellence in DNA Forensics, organized a workshop on “DNA Evidence in Criminal Investigation” and “Rapid DNA Solutions for law enforcement agencies” in the year 2021. The National Forensic Sciences University, India, in collaboration with University of Dhaka, Bangladesh and Rukoku University, Japan, organised an international conference on Criminology and Forensic Science. In this year 2023, the NFSU organized an All India Forensic Sciences Conference (AIFSC) in collaboration with the Directorate of Forensic Science Services (DFSS) and under the patronage of the Ministry of Home Affairs, Government of India. This has transcended into similar course formulations and academic developments. The West Bengal National University of Juridical Science, Kolkata, offers a unique five-year integrated BSc LLB Honours programme with a specialization in criminology and forensic sciences. In contemporary academic developments, The University Grants Commission (UGC) provides Learning Outcomes-based Curriculum Framework (LOCF) for Criminology (General) Undergraduate Programme-A Templet, 2019. The LOCF has expanded the scope of criminology, over the last decades of the 20th century, to encompass a number of specialized study areas. One of such is criminalistics, or scientific crime detection, which includes photography, toxicology, fingerprint study, and DNA evidence. The New Education Policy 2020 (NEP 2020), whose major objective is transforming higher education institutions into large multidisciplinary universities and integrating diverse disciplines, Accordingly, the NEP 2020 envisages a curriculum for multidiscipline courses such as criminology and forensic science. The advent of technology and research developments have led to a paradigm shift in criminology from traditional concepts to contemporary and multi-disciplinary issues such as forensics, criminalistics, cyber forensics, and overall forensic criminology.

Recommendations and Conclusion It is recommended that definite steps be taken to bring the subject of Criminology and Forensic Science into the general stream of University education, promoting greater awareness and stimulating thinking and research on the problems relating to crime, forensics, and delinquency. It is recommended to produce properly trained Criminologists and Forensic Scientists. The novel and cutting-edge courses offered by pioneering universities such as NFSU are a step in the right direction. A few of the National Law Universities are also toeing a similar line. There is a need for capacity-building training in law enforcement agencies for better appreciation and timely analysis of forensic evidence. The police should be vigilant in submitting the samples from the crime scene or during the investigation to the FSL lab. There is a need for the development of scientific temper to be maintained in pursuit of the investigation of crime, as upheld by the Court in Karnail Singh v. State of Haryana; this is also prescribed as the fundamental duty to “develop scientific temper, humanism, and the spirit of inquiry and reform” under Article 51A, Part IV A of the Indian Constitution.

62  Forensic Justice In view of progressive policy and legislative developments, government-constituted expert committees are set up for the use of forensics and criminalistics. There has been a Parliamentary Consultative Committee graced by the Ministry of Home Affairs (MHA) organizing deliberations on “Forensic Science Capabilities: Strengthening for Time-bound and Scientific Investigation”. MHA has stressed that the use of forensics by law enforcement agencies facilitates “technology-based” and “evidence-based investigation” to achieve the requisite conviction rate and disposal of cases (Indian Express, 2022). In Court On Its Own Motion v. State and Anr., the court gave significance to forensic evidence; therefore, such evidence can help convict or acquit the guilty. In Virender v. The State of NCT of Delhi, the Delhi High Court directed that the IO shall promptly refer for forensic examination articles necessary to be examined to the forensic laboratory, which shall deal with such cases on a priority basis to make its report available at the earliest. The courts have relied on forensic evidence for conviction and sentencing in several cases. It is right to reiterate the judicial directions laid down by the Madras High Court in upholding the significance of forensics in the criminal justice system. This evinces the emerging judicial trend of incorporating aspects of forensic criminology into the justice delivery system. In RM. Arun Swaminathan vs. Government of Tamil Nadu, 2019 (Principal Secretary Health and Family Welfare Department), the Madras High Court has observed that forensic science” utilizes “scientific principles and techniques” for detection and investigation of crime, the result of which may be presented as scientific evidence in the courts of law. The Forensic scientist assists the courts of law in determining the existence of a crime and the identity of its perpetrator through scientific examination of crime evidentiary material.” Therefore, forensic science plays a very key role in the investigation of crimes. It is pertinent to refer to some of the laudable recommendations posited by India’s leading independent human rights institution, namely the National Human Rights Commission, on the same. The NHRC has recommended measures to strengthen the standards of forensic investigation in India, as follows: • “To fill in all the vacant posts in Forensic Science laboratories, provide them with sufficient infrastructure and funds. • To introduce Forensic study and training in MBBS course; to introduce Forensic law studies as a separate course curriculum in integrated BSc. (Forensic) LLB. • To make post-mortem an important activity for medical professionals with proper orientation to the Doctors about medico-legal procedures” (NHRC Webinar on Forensic Science Setup Dominates the Sentiment, 2020). In a similar vein, the country’s most path-breaking criminal reform committee, namely the Malimath Committee on Reforms in Criminal Justice (2003), while appreciating the value of forensic evidence in increasing the conviction rate and speedy trial of cases, the Committee has recommended the following: • Police Manuals and Standing Orders of different States/Union Territories need to be amended to make Forensic Science mandatory, as far as practicable, in investigating all grave and important crimes such as sexual offenses, narcotics, poisons, and computer crimes. • The State Governments should immediately create appropriate forensic science facilities in each District. This should include one or more Mobile Forensic Science Units, depending on the District’s size, and the crime incidence. Each unit should have a Forensic Expert, a Finger Print Expert, a Photographer, and a Videographer. The job of these mobile units would be not only to

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• • • • • • •

identify, collect, and preserve the evidence but also to tender the necessary opinion on the spot to the IO if scientifically feasible. Each police station should be provided with a set of Scientific Investigation Kits for the identification and lifting of scientific clues from the crime scene. An appropriate number of Regional FSLs at the headquarters of each Police Range should be set up by the State government. The Central and State FSLs are facing an acute shortage of manpower. The governments should take appropriate steps to fill up these vacancies. Most FSLs suffer from a financial crunch. The budgetary position of the FSLs should be reviewed, and sufficient funds should be made available to them. A mandatory time limit should be prescribed for the submission of reports to the police/courts by the FSLs. A national body on the pattern of the Indian Council of Medical Research should be constituted in the country to prescribe testing norms for the FSLs and ethical standards for the forensic scientists. The UGC should consider creating departments of Forensic Science in at least all the major universities. Later, Forensic Sciences could be introduced as subjects at the school level. Funds should also be earmarked and allotted for research in these departments.

Futuristic trends of Forensics and Criminalistics and their applicability in the legal arena under the Criminal Justice System Virtopsy as forensic tool for medico-legal examination: Virtopsy is the future of medico-legal examination in order to provide a variety of forensic inputs. Virtopsy is a portmanteau of ‘virtual and ‘autopsy’ (to see with one’s own eyes), combining scanning and radiographics with powerful 3D resolution. This technology employs a multi-disciplinary approach combining forensic medicine and pathology. Artificial Intelligence (AI) in Cyber Forensics: NITI Aayog, the Government of India’s strategy paper on artificial intelligence Forensic Criminology using Artificial Intelligence (AI) and Automated Facial Recognition Technology (AFRT) or Facial Recognition. The usage of “automated facial recognition technology” as a sample of forensic evidence or by law enforcement agencies for surveillance purposes is largely practiced (Mikalef et al., 2021). This is prescribed by NITI Aayog, the Government of India’s think tank and policymaking body in a strategy paper published in 2018. However, this is fraught with informational privacy issues, as highlighted in K.S. Puttaswamy v. Union of India, abridging the right to privacy and personal liberty.

Transnational Criminology as an Emerging Area in Criminology “Transnational criminology” describes “the process of knowledge translation and implementation of research evidence from multiple sources”. This pervades the integration of criminology with allied branches of the physical sciences. Hence, the future scope of forensic criminalistics in legal areas has a long way to go with these advancements.

64  Forensic Justice

Acknowledgment I, Dr. Sonali Kusum, convey my thanks and gratitude to our respected Prof. Dr. Arvind Tiwari, Dean, SLRCG, for giving me this wonderful opportunity to co-write and jointly develop the paper. I thank him for his kind guidance and steadfast motivation for the same. I thank him for this learning opportunity. I thank my family for their support and constant encouragement. I thank my colleagues and students for generating healthy academic discussions on contemporary legal issues and keeping the quest for knowledge and learning in me alive.

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Role of Forensic Criminology in Access to Justice—A Critical Analysis  67 86. “Guidelines & Protocols Medico-legal care for survivors/victims of Sexual Violence.” March 18, 2013. Ministry of Health & Family Welfare. Department of Health & Family Welfare. Hospital Division. No.Z.28015/21/2013-H. https://main.mohfw.gov.in/sites/default/files/953522324.pdf. (accessed May 2, 2023). 87. “Guidelines and Examinations - Uniformity in Proformae for Medico Legal Cases of victims of sexual violence.” March 19, 2014. Ministry of Health & Family Welfare. Government of India. https://main. mohfw.gov.in/sites/default/files/953522324.pdf. (accessed May 2, 2023). 88. “Nirbhaya Fund’ Scheme for Women Safety in Public Road Transport.” Press Information Bureau. Ministry of Road Transport & Highways. Government of India. https://pib.gov.in/newsite/PrintRelease. aspx?relid=103102. (accessed May 2, 2023). 89. “Union Minister of State for Home Affairs Kiren Rijiju Addresses Valedictory Function of the 23rd All India Forensic Science Conference and lays foundation stone of CFSL, Bhopal, more use of forensic sciences can expedite cases and help tackle crimes.” March 24, 2015. Press Information Bureau. Ministry of Home Affairs. Government of India. https://pib.gov.in/newsite/PrintRelease.aspx?relid=117653. (accessed May 2, 2023). 90. “Forensic Probe to Be Made Mandatory for Offences Attracting 6 Yrs or More in Jail.” Indian Express, June 7, 2022. https://indianexpress.com/article/india/forensic-probe-to-be-made-mandatory-for-offencesattracting-6-yrs-or-more-in-jail-7992841/. (accessed May 2, 2023). 91. “Forensic Laboratory Constitutes Special Team for POCSO Cases.” The Hindu, September 25, 2019. https://www.thehindu.com/news/cities/Delhi/forensic-laboratory-constitutes-special-team-for-pocsocases/article29503397.ece. (accessed May 2, 2023). 92. “Digital Exploitation of Children.” July 18, 2019. Manupatra. MANU/PIBU/1177/2019. Press Information Bureau. https://updates.manupatra.com/roundup/contentsummary.aspx?iid=22623. (accessed May 2, 2023). 93. “Cyber Crimes against Children Can Now Be Reported at the POCSO E-Box.” June 23, 2017. Press Information Bureau. Ministry of Women and Child Development. Government of India. https://pib.gov. in/newsite/PrintRelease.aspx?relid=166857. (accessed May 2, 2023). 94. UGC, CURRICULUM DEVELOPMENT COMMITTEE LAW, 2001. 95. Rashtriya Raksha University Act, 2020. NO. 31 OF 2020, [28th September, 2020.] 96. NATIONAL FORENSIC SCIENCES UNIVERSITY ACT, 2020, NO. 32 OF 2020, [28th September, 2020.] 97. Karnail Singh v. State of Haryana (2009) 8 SCC 539. 98. “Forensic Probe to Be Made Mandatory for Offences Attracting 6 Yrs or More in Jail.” Indian Express, June 7, 2022. https://indianexpress.com/article/india/forensic-probe-to-be-made-mandatory-for-offencesattracting-6-yrs-or-more-in-jail-7992841/. (accessed May 2, 2023). 99. Court On Its Own Motion v. State and Anr CRL. REF. No.2/2016. 100. Virender v. The State of NCT of Delhi Crl. A. No. 121/2008. 101. “NHRC Webinar on Forensic Science Setup Dominates the Sentiment That the Country Lacks the Adequate Number of Forensic Laboratories and Manpower to Handle Them.” August 11, 2020. National Human Rights Commission India. https://nhrc.nic.in/media/press-release/nhrc-webinar-forensic-sciencesetup-dominates-sentiment-country-lacks-adequate. (accessed May 2, 2023). 102. Vidhi, Centre for legal Policy, Better laws | better governance Indian Law Enforcement’s Ongoing Usage of Automated Facial Recognition Tech – Ethical Risks and Legal Challenges Working Paper 1 | August 2021. 103. Mikalef, Patrick, and Manjul Gupta. “Artificial Intelligence Capability: Conceptualization, Measurement Calibration, and Empirical Study on Its Impact on Organizational Creativity and Firm Performance.” Information & Management 58, no. 3 (April 1, 2021): 103434. Accessed May 2, 2023. https://www. sciencedirect.com/science/article/pii/S0378720621000082. 104. “White Paper: On Artificial Intelligence – a European approach to excellence and trust.” 2020. European Commission. https://ec.europa.eu/info/sites/info/files/commission-white-paper-artificial-intelligencefeb2020_en.pdf. (accessed May 2, 2023). 105. K.S. Puttaswamy v. Union of IndiaW.P. 494 of 2012.

Chapter 4

Countering Extremism in North East— Learning from Past and Way Forward Vidushi Sahani and Beulah Shekhar

Abstract: The North East Region of India is today emerging as one of the key national priorities and the fulcrum of India’s Act East policy. As per the Annual report of the Ministry of Home Affairs, there has been an 80% drop in insurgency-related incidents over the last decade. The government has also recently reduced the disturbed areas under the Armed Forces Special Powers Act (AFSPA). However, for decades, the North East Region of India remained strife-torn due to several factors, including the need for ethnic and religious identity, poverty, and a lack of development, among others. However, prolonged political inaction and overzealous military interventions sowed seeds for an inherent contempt for the system as well. In the last couple of years, political focus, multiple peace accords, and a focus on development have addressed local aspirations. This widespread appreciation of the government’s initiative across the media and by the general public offers us an opportunity to analyse India’s counter-insurgency strategy in the region. The paper attempts to present how the current strategy is addressing the concerns of surrendered extremists and armed rebels and the strategy for their integration into the mainstream. The paper finally attempts to deliberate on the way forward for extremism and insurgency in the region in the face of changing socio-economic dynamics. Keywords: North east region, Extremism, Armed rebellion, Insurgency, Counter-extremism strategy, Development, Peace accords

Introduction A famous parable from Panchatantra, a Sanskrit collection of fables from ancient India, narrates a tale about six blind men who come across an elephant for the first time, learn about it, and imagine what it looks like. The men, known for their wisdom, aptly described the animal, but in parts, the one touching the stomach said that an elephant is smooth and solid like a wall! The one touching the trunk said that an elephant is like a giant snake! So on and so forth. The men, with the best of intentions, knowledge, and judgement, were unable to describe the animal as a whole, but for their

Countering Extremism in North East—Learning from Past and Way Forward 69

one limitation. The story is much like the world trying to understand the long-standing conflict in the North East Region. Conflict in the North East is multidimensional. It is as political as it is social; it is as human as it is geographical; it is as cultural as it is economic; and it is as national as it is international. India’s North East is much like that elephant, which is so enormous that every single part deserves analysis and understanding but cannot be representative of the whole picture. Extremism and Radicalization are two such components of the bigger picture that emanate from the multiple aspects of the North-East conflict. Using the term radicalization may well have its own limitations when explaining the decades of violence, bloodshed, and anti-state sentiment that have wreaked havoc in the region. For some parts, it might well be a fight for self-determination; for others, it might just be a cold, brute anti-state repression and political tactic. Northeast India has experienced several insurgencies over the years, driven by various factors such as ethnic tensions, demands for autonomy, and political grievances. But the history of Insurgency in Northeast India dates back to the years following India’s independence in 1947. As a newly independent nation and much like other former colonies, India found herself in a rather uncertain position when handling territorial disputes between neighbours, disagreements, cross-border illegal trade, and the unrestricted movement of ethnic communities looking for safe haven to settle. When taken as a whole, these difficulties frequently dampened the enthusiasm of government organisations for modernization and actions to promote connectivity and economic development. Efforts to establish long-lasting peace in outlying areas were thwarted by insurgency, secession, and armed conflict with the State. The North East Region, characterised by its diverse ethnic groups, languages, and cultures, became an easy victim to the rapidly evolving socio-political situations in a newly independent nation and the rough edges of its socio-economic framework. However, the last decade has seen a radical shift in the security scenario. Since the boiling 80s and 90s, the North East Region has entered a phase of relative peace, as is evident from the massive dip in insurgency incidents. Nonetheless, maintaining the fine act of balance between fragile peace and years of discontent is a task to reckon with. The fact that several of these insurgent organisations continue to get help from neighbouring nations, particularly China, just complicates the matter further. The paper thereby attempts to understand how the historical baggage, the sociological underpinnings, political chicanery, and financial ramifications perpetuated extremism and radicalization all through the years, bleeding out the North East of its true worth and potential. It further examines the reasons behind the massive decline in insurgency noticed over the last decade, making the North East an interesting case study where a long-standing conflict was doused through a strategy of dialogue, conciliation, and participation. The next section attempts to understand radicalization in the North East region within the wider understanding gained of the concept through several studies.

Radicalization as a Concept A rather simple and unwitting explanation of radicalization would appear to be a process that happens overnight. Someone who was previously regarded as being tolerant and law-abiding now appears intent on forcefully toppling the system and willing to risk other people’s lives and well-being for the greater good. This explanation would often force one to look for the ‘seed’ or root’ of the person’s radicalization. However, several studies over the years have amply established that radicalization can

70 Forensic Justice never be a linear and simple process (Horgan, 2008). There is a larger agreement among scholars that radicalization and extremism cannot be explained as a sudden realisation and instant transformation but as a gradual result of a series of events, signs, and experiences that lead to the creation of a radicalised individual (Neumann, 2013). Those common experiences and events may not be triggers enough for all to turn to extremism and take up arms against the State. McCauley and Moskalenko (2008), who propounded the Pyramid Model of Radicalization, envisioned the pyramid not just as floors or steps but as various mechanisms including personal events such as victimisation, injustice, identity crises, and mass events such as martyrdom and dehumanisation. However, they point out an important fact that ‘Ninety Nine percent of those with radical ideas never act’, while, ‘many join radical actions without radical ideas’ (McCauley and Moskalenko, 2017). This throws light on different kinds of typologies, indicating why, in the first given space, somebody would join a radical group or present radical behaviour. It is important to understand what drives an individual to join a radical group and use violence against the State and fellow citizens. Every Radicalised mindset/terrorist may have a specific psychological need that defines his or her motivation behind the chosen path. Knowing these psychological needs would help craft a targeted approach with multiple interventions to be able to bring about a behaviour change (Doosje et al., 2022). In the literature on the process of radicalisation, four needs can be identified: identity seekers (Tajfel & Turner, 1979), Justice Seekers (Van Den Bos, 2018), Significance Seekers (Kruglanskey et al., 2013), and Sensation Seekers (Nussio, 2017).

Justice seekers Justice seekers, as the name suggests, pick up arms and are particularly attracted to extremist ideas or groups to counter injustice done to them or their social groups. The feeling of injustice and relative deprivation have been identified as the root factors of radicalization (Van Den Bos, 2018). Quite often, this feeling of injustice revolves around comparing your own living standards in the past with those of others. The feelings can be based on economic conditions but are very strongly intertwined with political, cultural, and religious factors as well. This feeling of Injustice is not limited to geographical boundaries; an excerpt from interviews with radical Islamist youth (Buges & Collegues, 2006) further illustrates this. Quoting from the study: “I am also worried about suppression of Muslims. I feel, with my religious brothers. Islam is like a body; the pain is felt through all parts. I therefore feel the pain of Muslims. Feelings of Injustice can trigger negative emotions, like anger, hatred and humiliation and these emotions play a very strong role in the background of radicalizations.” These emotions can play out at the individual level as well as at the group level. At the group level, they often take the shape of groups based on revenge (Lickel, 2012). Besides identity and injustice, the need to have a sense of purpose in life is the third most important need pushing individuals towards radicalization. Box 4.1: Solidarity Emanating from Ethnic Ties—Case of Mizoram and Myanmar Recently, when the Myanmar Government launched attacks on the insurgent camps located 10 kilometres across the India-Myanmar border from the village of Farkawan in Mizoram, the insurgent groups found support in Mizoram. In order to help victims of an attack by the Myanmar Air Force on an insurgent camp, leaders of Mizoram’s civil society organisations have announced that they will send a medical assistance mission across the border with Myanmar. Since they are related to the ethnic-Chin people in adjacent

Countering Extremism in North East—Learning from Past and Way Forward  71 Myanmar through kinship and tribal ties, the Mizoram residents who live along the border have been sheltering relatives who are escaping the conflict. According to reports, forty families of CNA guerillas working out of Camp Victoria have taken refuge in Mizoram so far this year.

Significance seekers Considered to be one of the main drivers of radicalization (Krug Lanskey et al. 2018), the desire for significance It is connected to Maslow’s desire to have a high sense of one’s own value. Re-establishing a sense of significance might lead to radicalization. Negative school or home experiences, for instance, are frequently cited as motivators for joining radical right-wing extremist groups (Moller & Shumaker, 2006). Existential uncertainty (Van Deb Boss, 2009) is yet another relevant aspect in this context. The term used to describe the state of feeling profoundly uncertain about one’s place in the world as a result of humiliating or demeaning experiences as well as traumatic experiences (death, severe injury). Leaders of extremist groups have utilised rhetorical devices such as calls to humiliation to incite hatred and retaliation against other communities and to legitimise terrorist acts. Box 4.2: Use of AFSPA and Secret Killings of Assam The infamous Armed Forces Special Powers Act has proved to be a major blot in the lives of people of the North East region and led to spate of extra Judicial Killings. Several state and non-state actors acted within the ambit of the AFSPA, creating a deep chasm between the people and State. The Death Squads or the ‘Secret Killings’ or the “gupta hoitya” of Assam invoked an existential crisis among the people, leading to a lasting feeling of humiliation and fear. a string of unreported killings over a four-year period that were purportedly planned by the government with assistance from security services between 1998 and 2001. The majority of the victims were family members, close friends, and anyone suspected of sympathising with the United Liberation Front of Asam (ULFA), an illegal insurgent organisation that says it is fighting for an independent Assam. The violence led to further crystallization of antagonism towards the State. For more than 50 years, AFSPA and the alleged extra-judicial killings under it continue to alienate the people of the region. Despite the martial law, militants groups have both flourished and grown in number. Several thinkers are of the view that the law has instead led to an increase in the number of insurgent groups.

Identity seekers Groups give us a sense of belongingness and offer safety and attachment, which are important for our self-esteem. According to social identity theory (Tajfel & Turney, 1979), a person’s sense of who they are depends on the group they belong to. This so-called social identity is very important to boost self-esteem. A radical or extremist group offers the same to individuals. To know this better, 13 former right-wing individuals were interviewed, and the impact of joining the group on their self-esteem was analysed (Feddes et al. 2013). The results showed that before joining the groups, individuals experienced low self-esteem; their self-esteem was high during their association with the group, and post-leaving the group, they felt to have fallen ‘in a black void (Feddes et al. 2013)’. So while it is rather attractive to be part of a group and gain an identity, leaving a group leads to losing a sense of attachment, self-esteem, and protection (Bjorgo, 1997). Young teenagers who belong to ethnic groups and face discrimination and who feel that their society is discriminatory towards them or their ethnic group frequently join radical organisations.

72  Forensic Justice Box 4.3: Kuki and Maiti Conflict—Rocked the Calm Waters of NE in 2023 Similar to the rest of the North Eastern area, Manipur is home to a number of communities that have a long history of mistrust. The tribal communities, which include the Kukis and Nagas, make up over 40% of the population, with the Kukis making up 25% and the Nagas 15%. The Meiteis make up just over half of the population. Tribal people are concentrated in the highland districts, while Meiteis are concentrated in the Imphal valley. Meiteis are primarily Hindu, but they also adhere to their traditional animist beliefs and practises and a certain sect also follows Islam. Conflicts between Meitei Muslims and Hindus occurred in the state in 1993. Compared to Kukis and Nagas, Meiteis are better educated and have more influence in state politics and business. Kukis and Nagas mainly practice Christianity and are widely spread throughout India’s and Myanmar’s North Eastern regions. Many Kukis in Manipur originated in Myanmar and were first settled by Meitei kings in the hills to act as a buffer between the Meiteis in the Imphal valley and the Nagas, who periodically assaulted the valley. At that time, many Kukis had moved from Myanmar some centuries before. There have been clashes between Nagas and Kukis as well. Over a hundred Kukis were killed by Nagas in Manipur in 1993 as a result of the ongoing fighting between the two ethnic groups. The majority of the Kuki population in the state now is made up of “New Kukis” from a subsequent wave of immigration from the Chin state of Myanmar in the latter end of the 19th century. Recently, Manipur witnessed a spate of violence across the State leaving more than 50 people dead and houses burned. The immediate trigger was the demand for Scheduled Tribe status for the Meitei community and other tribal groups opposing it. A Tribal Solidarity March organised by the All Tribal Students Union of Manipur (ATSUM) in the Torbung neighbourhood of Churachandpur to protest the inclusion of Meiteis in the ST category saw the first outbreak of violence in the state on May 3 2023 and raged upto a lot of time and loss of life. The Kuki Maiti Violence is a reminder that the fragile peace established in the region over the past one decade, can be shattered with the slightest of triggers or reigniting the fear of loss of identity and rights among the people. Experts argue that the May 3rd incident has brought to the fore an important aspect of conflicts in the North east. It has brought together all Kuki/Zo people in Manipur and other states, indicating the underlying affinities and faultlines that can aggravate any situation in the North East Region.

Sensation seeking People who are typically looking for excitement and adventure are known as sensation seekers. These individuals are particularly drawn to radical organisations (Nussio, 2017). In fact, extremist groups, by way of the visual look of tough-looking warriors, target this need for sensation (Van San, 2015). This need may come from simple boredom or from the absence of a positive outlook that things will be better in the future. Glory, excitement, and romance could be powerful motivators to satisfy the demand for sensation (Venhaur, 2010). It is important to note that these motivations can coexist. Identifying a particular need can help us create a reverse roadmap towards deradicalization.

Psychological Aspects of Radical Groups Motivation and psychological needs can get people attracted to the concept of radicalization. They can even get people enrolled in radical or extremist groups. But it takes a step further to make them think and behave in line with the ideology of the group, follow similar processes, and psychologically be ready for violent attacks. There are three basic processes that are followed in the groups to channelize and ensure that the recruits continue in the same spirit. Categorization: To begin with, people are distinguished via the categorization process by being placed in different categories. It becomes easier to process information, and it helps them predict traits and

Countering Extremism in North East—Learning from Past and Way Forward  73

behaviours depending on the category they belong to. Here, recruits are expected to behave very strictly in a certain manner and completely in sync with the ideology of the radical group. Us vs. them: the process is all about creating a distinction between Us and Them. There is a tendency to create differences between their own groups and those of others. Recruits are forced to spend more time with their own radical group than other groups, to the extent that they are barred from having connections with their family or friends and are forced to spend more time with their comrades to ensure stronger bonds are created within the radical community. These distinctions are also made by following ritualistic processes where new recruits have to forego something to be part of the current group. Thus creating an environment where the new group association is taken seriously and an undying commitment is embedded in thinking and behaviour. In group superiority, the third process is where the recruits are made to think, feel, and behave as if they occupy a morally higher ground than other groups. All radical groups craft their ideology in such a manner that their in-group is presented as superior to the out-group. Sometimes, this Superiority is also tangible in nature (being indigenous to the land of Assam vs. the migrants from Bangladesh), and sometimes it is described in terms of culture and morality (Belonging to the affluent and original ethic group on the mainland versus the tribal communities from the neighbouring hill areas). These sets of processes are crafted and exercised keeping in mind human psychology. We, as people, live to belong, and the danger of being ostracised from our community keeps us from following the norms and order. Members of radical groups are tutored and motivated to follow the group’s norms and values, and at the same time, the outside group’s perception is always that of a threat. These two processes, hand in hand, ensure that the recruits are well submerged into the new order while seeing others as threats and inferior to their in-group. Taken together, it becomes easy for the radical group to instigate their group to use violence if necessary. As explained by Archana Upadhyay (2006), North east Insurgency groups can be categorized into following themes. Conflicts between tribal groupings and the state: These disputes are caused by the idea of a distinct and separate nation. Tribal vs Tribal: Conflicts between tribal groups arise when less numerous and less powerful tribal groups challenge the political and cultural hegemony of the more powerful tribal group. Conflicts arise not only with the dominant group as a result of them, but also between multiple opposing factions. The insurgency in Nagaland, Manipur and the rebellion of the Mizo National Front in 1966 fall in this category. Tribals vs. non-tribals: These movements call for constitutional amendments to recognize ambitions for subnationality on the political stage. These groups are in direct opposition to the state governments that are already in place, which are required by the constitution to maintain peace and order. Several conflicts in Manipur, Tripura, Nagaland and Assam fall in this category. Criminality: The region’s militancy can be partially analysed as a criminal enterprise designed to increase and solidify control over vital administrative and economic activities. As a result, a set of social interactions that are intricately entwined with economics and violence within the context of identity politics have been established.

Reading Radicalization in Context of North East ‘If a tall, thin man from the state’s Jeraigaon village had not been an exceptional football player, things may have turned out differently for Assam and the thousands of young people who live there. Paresh Baruah, who was 22 at the time, first caught the attention of radical guys on the football pitch,

74  Forensic Justice high in a tea garden above Dibrugarh, who stoked his radical fervour. Midway through 1979, Assam was on fire as irate students agitated for the removal of all illegal immigrants from the state. Initially, Baruah was more concerned with playing football than he was with politics or religion. But as the demonstration got louder, he began to discuss the rights of the locals and the migrants. He abandoned the football pitch in December 1979, quit his job at the Tinsukia train station and vanished into the woods. Baruah, who once played football for Oil India and was believed to be among Assam’s best goalkeepers at the time, joined the ULFA in 1981. Baruah returned having undergone a significant transformation, and he quickly rose to the position of United Liberation Front of Asom supreme leader. He remade himself as a well-armed rebel, enticing others to join ULFA. In an interview to a media house, he made references to the 17 wars fought by Assam’s legendary monarch Lachit Borphukan in the 1600s against the Mughals, he referred to the armed challenge as “the 18th war of independence (2009).” The instance above is a brief profile of ULFA commander Paresh Baruah, who is believed to be hiding in China or Mynamar and is willing to enter talks with India provided the issue of sovereignty is discussed. Though weakened in influence, Baruah is among the few extremists who continue to wage the war against the State and uphold the demand for sovereignty. The case of ULFA and the fate of its commanders is but one aspect of how the feeling of ethnic insecurity, the need for justice, and disillusionment led many youth in Assam to join militant groups. Over the years, many of them surrendered, accepted rehabilitation packages, and entered mainstream life. Some of the key leaders of many extremist groups are today in prominent positions, such as members of the State Legislative Assembly in respect to states, businessmen, government contractors, authors, etc. With many group members accepting a new life, the militant groups lost their bargaining power with the government. Those who refused mainstream treatment sought refuge in neighbouring countries such as Myanmar and China and continued to rake up the issue while in hiding. There are reports that absconding ULFA leaders travel to Myanmar and recruit young and passionate men and women. As per news reports, as recent as 2022, it has been revealed that recruitment overdrive is ongoing in the antipeace talks faction of ULFA (Parashar, 2022). A recent social media post by the 29-year-old Janardhan Gogoi, vice president of the Congress youth wing at Sadiya in Upper Assam, in which he informed his pregnant wife about his decision to join ULFA, is an interesting insight into the radicalization of individuals in the region. The post, which says, “I couldn’t wait to see our own people being destroyed since they are helpless in their own state. I couldn’t keep my hands still after observing the misery of my own people, who have been victims of lies and manipulation for years” (Agarwala, 2022). As per reports, Gogoi was leading a normal life except for a few social media posts expressing his emotions for Assam. As per police sources, insurgent groups are now relying on social media to recruit and reignite feelings of injustice among the youth of the region. It was also mentioned that the recruits in recent times are mostly from the rural and economically weak sectors of society rather than the educated and affluent sections. This point, however, shows an evolution in the radicalization and recruitment processes adopted in the North East Region in the early and more violent years of the 1980s and 1990s. During a discussion with a former sympathiser of the insurgent groups, I learned that the movement began at the level of civil society and did not initially form into groups. The public protests after the influx of immigrants were a heterogeneous group of people from both rich and poor families, both educated and illiterate, who protested with the common demand of sovereignty. The mavericks among them eventually organised the movement into several groups and started instigating the members to use violence and bloodshed as the only means of getting their voices heard until Delhi.

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While the impact of the government’s strategies in the last decade and their impact on insurgency in the region will be discussed in successive sections, The rise, sustenance, and decline of insurgencies largely confirm the larger psychological categorizations propounded by theorists, as mentioned above. Additionally, criminal activity that aims to increase and consolidate control over vital economic resources has recently come to resemble a different kind of conflict. As aptly mentioned in a paper on Terrorism in the North East (Upadhyay, 2006): “The conflicts in the North East have some peculiar characteristics: they are asymmetrical; they are ambiguous, making it difficult to differentiate a friend from an enemy; they are fought in unconventional modes, deploying political and psychological means and methods; and the conflicts eventually tend to escalate into prolonged wars of attrition. Violence in the region is also caused by the failure of the State administration to provide security. This has led to the creation of alternative forces of ethnic militia for provision of security. From the perspective of its ethnic constituency, a private ethnic militia is considered a more reliable provider of security when it is threatened by another ethnic group that is armed with its own militia. This is usually the context in an ethnically polarised situation in which the State administration fails to provide security and the actions of the Army are seen as partisan”.

Groundwork for Discontentment Pre-colonial One of the final regions of the Indian subcontinent to be colonised by the British was the “Northeast”. The British turned to protecting the borders of their Indian Empire from the perceived threats of Russian expansion in Central Asia and from the westward push of the Burmese Empire after nearly conquering it in its entirety by the first quarter of the nineteenth century. (Bhaumik, 2009). However, the failure in Afghanistan compelled them to abandon it as a crucial buffer between Tsarist Central Asia and British India, prompting them to grab control of the Northeast of India after the Burmese army’s defeat. The British decided to have a limited role in governing the Northeast. The princely states of Tripura and Manipur were viewed as dependents that were overseen sporadically rather than on a regular basis by political authorities (Mackenzie, 1884). As a result, the Northeast was never a part of the British Empire; it remained a boundary. Only Assam was integrated because of its large oil and tea fields, as well as its productive agriculture and industry potential, which provided ample basis for direct administrative authority. The prosperous trade between Tibet, Bhutan, and Assam on the one hand and Burma and China on the other is attested to by British trade records. H.L. Jenkins wrote a travelogue of Burma in 1869–1870, and it mentions that traders who visited Assam brought back a lot of opium, which eventually made its way to China. Oil was discovered, which fanned imperial ambitions and caused the British to turn their attention to the hills (Kokon, 2018). These economic aspirations spelt chaos and identity conflict for the hill tribes. Coolies from the Chhotanagpur-Santhal region were brought in to work in the plantations because they were seen to be ethnically more suited for hard labour (Sharma 2009). Many of them stayed around even after their contracts ended, drawn in by the quantity of arable land. Some reports claim that by the turn of the century, the non-indigenous population in the Brahmaputra Valley had risen from just 6% in 1872 to around 25%. At the spots, the seeds of identity-related discontentment were sown. With the British taking over, the natives were first exposed to an alien political system, monetary system,

76  Forensic Justice and administrative structure that worked against their tribal way of life. The influence of Christian missionaries also contributed to this expansion of the British government. The British, in order to protect their economic interests in the tea plantations, created the imperial system of ‘inner line’. The movement beyond it required a licence, or permit’. Thereby alienating the people of the region and laying a mental and physical disconnect from the rest of India (Kar, 2007). While it would be beyond the scope of this paper to detail all the activities of the British Empire, which laid the groundwork for great discontentment, British imperialism proved to be one of the key factors that stoked resentment among the tribal population by invading their traditional way of life and exploiting them for commercial purposes.

Partition In 1947, when the nation was celebrating its newly found independence, the people of the North East had to make peace with their convoluted identities. The ‘chicken neck’ corridor served as the landlocked area’s shaky connection to the mainland. People and their lands were split by hastily drawn lines. East Pakistan, Burma, and China were left to the northeast, making them challenging neighbours. Overnight, both the riverine and road connections were broken. Meghalaya and Tripura, which had free access to the Bengal Plains, suddenly stood apart from one another with a new country between them (Kundra, 2022). The Irrawaddy basin was no longer accessible to Manipur and Mizoram. International borders are marked by 99 percent of the new region’s physical boundaries. Sub-national conflicts with significant trans-border dynamics are the most prevalent and pervasive conflicts in South and Southeast Asia, affecting half of the countries in the region, according to Goodhand. Identity groups’ cross-border ties can result in violence spreading throughout an entire region, as was the case in the Balkans in 1990 (Pau 2019). Similarly, in the North East Region, strategic alliances within rebel groups, ethnic ties, and cross-border linkages act as force multipliers and exacerbate the dynamics of warfare. Today, for instance, the violence in India’s North Eastern States is closely related to the civil war in Myanmar. The Kuki-Chin-Mizo ethnic groups, who left Myanmar in the last century, have populated considerable numbers in Assam, Manipur, and Mizoram’s border regions (Chaudhry, 2020). These ethnic groups are related in Myanmar, a country with open borders and a weak central government led by Naypyidaw. The International boundary and the Durand Line are both despised by the Nagas, who reside on both sides of the boundary. Th Muivah, Isak Chisi Swu, and SS Khaplang were among the 140 members of the “China Group” who opposed the Shillong Accord and, after returning from China, established the National Socialist Council of Nagaland (NSCN) from bases in Myanmar (Yousuf, 2022).

Immigrants and ethnic insecurities Yet another factor resulting from geopolitical reasons was the massive demographic shift that began in the colonial era. In the early 1900s, the north-east region witnessed massive expansion of agriculture. The rise of agriculture also brought about significant immigration from other parts of the subcontinent, increased population density, many indigenous tribes facing the threat of becoming minorities, and the worry that other similar cultures might also become marginalised (Baruah, 2007). Fear and existential crises caused by poorly managed political affairs intensified in the northeast region of India. Bengal was divided into the Pakistani province of East Bengal and the Indian state of West Bengal in 1947. Later, East Bengal became East Pakistan. The majority of East Bengali refugees settled in Kolkata (Calcutta) and other West Bengali cities, towns, and rural areas, although a sizeable number also went to the Barak Valley of Assam and the princely state of Tripura,

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which later became part of India in 1949. According to estimates from the Indian government, 2.6 million people migrate from East Bengal to India and 0.7 million people migrate from India to East Pakistan (Elahi, 2003). During that time, minority Chakmas and Hajongs also left the former East Pakistan to seek refuge in the Northeast, along with Bengali Hindus. The 1962 construction of the Kaptai dam on the river Karnaphuli put the continued existence of Chakmas and Hajongs in their ancestral land in even greater danger. They crossed into India via the Lushai Hills region of Assam, which is now Mizoram. While some stayed back with the Chakmas, who were already living in the Lushai Hills, the Indian government gave settlement to the majority of the refugees in the sparsely populated North East Frontier Agency (NEFA), present-day Arunachal Pradesh. Immigrants from Burma are yet another aspect that forms the multiethnic makeup of the region. The military takeover in 1962 compelled a large number of Burmese Indians to leave their homeland and seek refuge in the Northeast. The Burmese military regime’s widespread and ongoing persecution of people on the basis of their ethnicity, politics, or religion caused thousands of members of the Chin population to seek safety in adjacent Mizoram. Between 1988 and the middle of the 1990s, most Chins migrated to Mizoram. The Tibetans were yet another group of refugees from persecution who crossed into the Northeast from a neighbouring nation. When the Dalai Lama escaped China in 1959, they arrived. Most of them made Arunachal Pradesh their home. The indigenous communities had an identity crisis as a result of the immigration wave. Such illegal migrations threatened their cultural existence, compromised their political dominance, and reduced their employment chances. The All Assam Students Union (AASU), a student organisation, spearheaded an anti-foreign movement in 1979 against illegal immigrants, Bengali dominance, and inaccurate voter registration that included thousands of immigrants. The All Assam Gana Sangram Parishad (AAGSP) and All Assam Student’s Union (AASU) led the Assamese protest as a result of the government’s failure to address the issue of illegal migration. Governmental instability, ongoing civil disobedience activities, and the worst instances of ethnic violence were all witnessed in Assam. It has also been argued that a number of factors, including unemployment, corruption in government institutions, an influx of illegal immigrants, the dominance of non-Assamese in the business world, the perception of the Centre exploiting Assam’s natural resources, and alleged human rights violations by the Security Forces, contributed to young people joining the ranks of the ULFA. The Second Administrative Reforms Commission Report (2006) notes that since 1947, when large-scale migrations from the newly formed East Pakistan transformed Tripura from a predominantly tribal region to one with a majority of Bengali-speaking plainsmen, its demographic makeup has changed. Tribes were forcibly removed from their agricultural grounds and forced into the wilderness. The ensuing tensions led to severe violence and widespread terror, with the Tripura National Volunteers (TNV) developing as one of the North East’s most vicious extremist groups. These are just some of the examples of how the influx of immigrants sowed insecurity among the inhabitants of the region and led to violent unrest among the people.

Intraregional boundary conflicts As mentioned earlier, throughout the British colonial era, the North East region was treated entirely differently from other parts of colonial India. This feeling of separation was perpetuated by British colonial masters who were indifferent to ethnic sensitivities and the psychological impact of the policy of separation and sowed the seeds of resentment towards figures of authority or the State, which, unfortunately after independence, was the democratically elected Government of India.

78  Forensic Justice Following independence, the Indian government was unable to adequately address the nuanced realities of the North East. Instead, it appeared to treat the North East differently from the other Indian republics, continuing the colonial strategy of alienation and isolation (Fürer, 1991). In the North East Region, all of the aforementioned factors manifested themselves as the source of resentment and discontentment towards the Indian States. It added to already simmering discontent and the legacy of British misadventures. At various stages, Assam was divided into the four northeastern states of Arunachal Pradesh, Meghalaya, Nagaland, and Mizoram. Various stages in time saw the separation of Assam into the four north-eastern states of Arunachal Pradesh, Meghalaya, Nagaland, and Mizoram. All four of the states have boundary issues with Assam because they each view their respective regions differently (Sharma, 2023). These conflicts have continued to this date, with many being resolved with central government interventions. After the reorganisation of the United States, many groups expressed strong resentment, particularly those from the hill region, who expressed their displeasure with the reorganisation’s results and felt that it was an attack on their ethnic identity. Such dissatisfaction gave rise to demands for autonomy and then for the creation of a separate state, which often led to anti-government agitations and armed rebellion (Inoue, 2005). For instance, the Naga Insurgency, led by the demand for a separate Naga state, has been a longstanding issue in the region. The creation of Nagaland as a separate state in 1963 did not fully resolve the demand, leading to continued insurgencies and conflicts in the region. The creation of new states in the northeast has also fuelled aspirations for separate statehood among various ethnic communities. For instance, demands for separate states like Bodoland, Karbi Anglong, and Twipra have led to ongoing movements and occasional conflicts. It’s important to note that the situation in the northeast is complex and multifaceted, and conflicts in the region cannot be solely attributed to the state reorganisation process. Historical, socioeconomic, and political factors have also contributed to the challenges.

How a half-baked policy response gave rise to further discontentment To counter the partition violence, security forces were given special powers to control the raging situation. Laws created and put into effect in the conflict-affected States of West Bengal and Punjab granted the Army special authority to employ force, including that of non-commissioned officers, to the point of inflicting death, search property without a warrant, and rescue people without facing legal repercussions. (Subramaniam, 2022). Similarly, The Armed Forces (Special Powers) Act came into force to maintain law and order in disturbed areas. AFSPA was first introduced in the north-eastern state of Assam in 1958 to combat the Naga insurgency. It was initially implemented in three districts of Assam: Lakhimpur, Nowgong (present-day Nagaon), and Sibsagar (present-day Sivasagar). The legislation provided the armed forces with broad powers, including the authority to arrest, search, and use force in certain situations. Over time, AFSPA’s jurisdiction was extended to other states in Northeast India facing insurgency and militancy. In the 1960s, it was extended to Manipur and parts of Arunachal Pradesh. In the 1970s, it was further extended to Nagaland, Meghalaya, and Mizoram. Tripura was brought under AFSPA in 1997. Over the years, there have been numerous protests and civil unrest against AFSPA in the Northeast. One significant event was the “Malom Massacre” in Manipur in 2000, when ten civilians, including a young woman named Thangjam Manorama, were allegedly raped and killed by security forces. This incident sparked widespread outrage and led to prolonged agitation demanding the repeal of AFSPA. A group of women, known as the “Meira Paibis” (Torch Bearers), organised a powerful and

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symbolic protest in Imphal, the capital of Manipur. Some of these women publicly stripped off their clothes and held banners with slogans against the security forces and AFSPA. The naked protest in Manipur gained significant attention both within India and internationally, shining a spotlight on the concerns and grievances of the people in the region regarding human rights violations, especially against women, and the controversial nature of AFSPA (Vajpeyi, 2007). The B.P. Jeevan Reddy Committee (2005), which examined the implementation of the AFSPA following the rape and murder of Thangjam Manorama by members of the Assam Rifles in Manipur, recommended repeal of the Act, but the recommendations were not accepted, and the implementation of the Act continued for many years to come. In 1997, the Supreme Court in the case of Naga People’s Movement of Human Rights v. Union of India laid down guidelines to prevent abuse of powers under AFSPA. However, the implementation of these guidelines has remained a subject of debate. Experts also argue that the root of this law was in the ‘History of Imperial Policing’ (Baruah, 2007) Violence spiralled out of control as a result of security forces using force frequently in response to rebel activity. Heavy-handed tactics and instances of collateral damage during counterinsurgency operations resulted in civilian losses and a sense of unfairness, which then fuelled insurgent group recruitment and support. Apart from the judicial and legal countermeasures to put down violent outbursts in the region, the phenomenon of secret killings rocked the region, especially Assam, during the 1990s. The “secret killings” in Assam refer to a series of extrajudicial killings that occurred in the state during the late 1990s and early 2000s. The secret killings were primarily linked to the ongoing insurgency in Assam, particularly the conflict between the United Liberation Front of Assam (ULFA) and various counterinsurgency groups supported by the state government (Zahan, 2022). The conflict had created an atmosphere of violence and fear in the state. The victims of the secret killings were individuals suspected of having connections with insurgent groups or sympathising with them. Many of the victims were alleged ULFA members or their family members, but there were also cases of innocent individuals being mistakenly targeted. There were allegations that state security forces, in collusion with the surrendered ULFA militants (SULFA), would pick up their victims without warning at night. The spate of these killings led to an atmosphere of fear and further mistrust of the government.

The inter-linking of socio-ethnic conflicts and transnational crimes All over the world, there have been repeated instances where, over time, ethnic conflicts, which have arisen out of feelings of insecurity, resentment, and identity crises, have become bed partners with criminal syndicates. For instance, during the conflicts in the Balkans in the 1990s, criminal networks took advantage of the chaotic situation and engaged in various criminal activities, including arms smuggling, drug trafficking, and human trafficking. Columbia’s Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN) got involved in cocaine production and smuggling as a means to finance their insurgency. In countries like Nigeria, Mali, and Niger, ethnic tensions and conflicts have intersected with transnational crime. Human trafficking networks have taken advantage of the vulnerable situation of displaced populations in Myanmar. Gangs such as MS-13 and Barrio 18 in Central America have exploited social and ethnic divisions, contributing to violence and criminal activities like drug trafficking and extortion (EFSAS, 2021). For North East, the immediate neighbourhood provides multiple opportunities for insurgents to establish a mutually beneficial nexus with the criminal syndicates. Over the past few months, security authorities have seized drugs worth millions of dollars in the north-eastern regions of India. Separatist organisation members were also apprehended throughout all of these searches. It is obvious

80  Forensic Justice that drug trafficking is both a significant source of cash for insurgent groups and a way for them to collaborate with their allies outside of India (EFSAS, 2021). Manipur is adjacent to Myanmar, which is part of the “Golden Triangle” region—a hotbed of drug trafficking—and has been a major drug route to other States for decades (Laithangbam, 2023). The many causes listed above opened many caveats for the young to become disillusioned and adopt a path of violence. Poverty, lack of opportunities, and a perceived sense of injustice led the 7th Report of the 2nd ARC (2006) to identify that the region is plagued by three key types of conflicts: • “National” conflicts: These involve the idea of a unique “homeland” as a separate nation and the pursuit of that aim by its adherents. • Ethnic conflicts: These involve the assertion of tribal groups that are numerically smaller and less dominant than the dominant tribal group against its influence on politics and culture. This manifests itself in Assam as conflict between the local and immigrant communities. • Sub-regional conflicts: These involve movements that demand that sub-regional aspirations be recognised and that frequently directly challenge the State Governments or even the autonomous Councils. Though the fires of discontentment have been doused to a large extent, ethnic clashes and violence sprout when feelings of ethnic security, identity, and equality are triggered.

Approach to Conflict Resolution—North East a Success Story Over the years, successive governments have approached the conflict in various ways. Broadly classified as (i) action by security forces and police action, this includes neutralising the insurgent groups by use of force and armed action; (ii) Secondly, providing local autonomy to the ethnic groups such as the Sixth Schedule, Article 371 C of the Constitution in the case of Manipur, and “tribe specific accords” in Assam; (iii) Thirdly, negotiations with the insurgent groups and providing economic packages and ensuring their reintegration in the mainstream; (iv) Fourthly, undertaking developmental activities to address the root causes of radicalization such as unemployment, poverty, illiteracy, etc. Taking into account the various factors that carve out a distinct identity for the North East Region, the constitution makers made special institutional arrangements for the region’s tribal areas, giving them a high degree of self-governance through independent District Councils under the Sixth Schedule. It is largely acknowledged that the Sixth Schedule has, in part, met tribal aspirations and avoided numerous clashes. Similar to this, the region’s administrative structure gradually changed with the establishment of the States of Nagaland (1963), Meghalaya (1972), Arunachal Pradesh (1972), and Mizoram (1987), as well as the elevation of Manipur and Tripura (1972) from Union Territories to States (ARC, 2006). Nonetheless, the region continued to suffer from the vicious circle of insurgency and underdevelopment, leading to further alienation and a feeling of neglect. Branded as a disturbed region marred by violence and armed conflict, the people of the rest of India grew further and further away. Similarly, the racial divide between the people of the North East and the rest of India further deepened. For the youth, hoping for a better life away from the violent conflict and travelling to metro cities in search of better opportunities, they had to face racial slurs such as ‘chinki’ and, in many instances, being identified as ‘Chinese’. However, the last few years have witnessed a massive change in security dynamics in the region. This has been possible through a holistic approach to establishing peace in the region. The security situation has significantly improved during the past nine years. When compared to 2014, the year

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2022 witnessed a 76% decrease in extremist activities. Further, when compared to 2014, security personnel and civilian casualties have decreased by 90% and 97%, respectively (PIB, 2023). The three-fold strategy adopted by the government has helped address multiple grievances at the same time. Following are the core objectives as mentioned by the central government in its official release (PIB, 2022): (a) “To preserve its dialects, languages, dance, music, food, and culture and to create attraction for it all across India; (b) To end all disputes in the North East and to make it a peaceful region, (c) To make the North East a developed region and bring it on par with the rest of India”

Reduction in militancy and gradual removal of AFSPA The decision of the government to remove almost 75% of the region from the AFSPA mandate (More than 70% of Assam is now free from AFSPA; removed from all regions of Manipur, Arunachal, and Nagaland; completely withdrawn from Tripura and Meghalaya) has not only indicated that the security situation in the region is improving but is also symbolic of the end of the long history of antagonism and hatred. It also stands very tall as a message to the people that the balance of equal power between the authorities and the common man is being restored once again.

Negotiation and integration of insurgent groups Further, several historic peace accords have been signed with insurgent groups. Framework Agreement with NSCN (IM), 2015; Tripura Peace Agreement (NLFT/SD), 2019 Bodo Peace Accord, 2020; Bru Rehabilitation Agreement, 2020; Karbi-Anglong Peace Accord, 2021; Assam-Meghalaya boundary agreement, 2022; Adivasi Assam Peace Accord, 2022; etc. (MHA 2022). These accords have helped address the concerns of the rebel groups. This has given a push to integration and trust and paved the way forward for long-term peace and progress. Over 8,000 insurgents have surrendered and have entered the mainstream.

Developing borders as hubs of trade and commerce For long, India consciously kept its bordering areas underdeveloped. This strategy was specifically designed to ease access and nullify encroachment attempts if Beijing ever tried to repeat the brief 1962 border war. Lack of roads and infrastructure development was the defence mechanism against the 1962 aggression. Lack of enough resources, poor border infrastructure, and boundary disputes with China forced the central government to become more inward-looking and turn its north-western and eastern borders into frontiers rather than bridges and trade corridors (Kotoky and Bipindra, 2018). The recent Vibrant Village programme, launched by the government of Arunachal Pradesh, brings yet another departure from the earlier stance. The focus areas of interventions identified for the development of villages include road connectivity, drinking water, electricity, including solar and wind energy, mobile and internet connectivity, tourist centres, multi-purpose centres, healthcare infrastructure, wellness centres, etc. (MHA, 2023). This would help the government assert a physical claim over disputed areas, win over a restive population, and check illegal activities along with the cross-border movement of insurgents.

Development and connectivity Development as a strategy to counter insurgency in north-east India has been recognised as an important approach to addressing the underlying socio-economic factors that contribute to the

82  Forensic Justice prevalence of insurgency in the region. For instance, over the last few years, there has been a massive improvement in the connectivity of the region. The NER, connected by just the Siliguri corridor, called the ‘Chicken Neck, often felt alienated and disconnected from the mainland. Travelling to and from the region was a challenge, which impacted economic development and provided opportunities for youth, which further fuelled the insurgency. There have been efforts to redress this Achilles Heel of the North East Region. With almost 5 lakh crores spent in the region, Rail, road, and air connectivity have gotten a major boost. There are efforts to bring all the State Capitals on the Railway map. Under the capital connectivity project, over 7 new airports have been constructed, and 5 northeastern states—Mizoram, Meghalaya, Sikkim, Arunachal Pradesh, and Nagaland—have seen flights take off for the first time in 75 years. National Highway Development has also worked to improve the economic condition of the people by reducing travel time and strengthening economic supply chains and tourism opportunities. Inland Water Transport (IWT) protocol with Bangladesh, agreements on using Chittagong and Mongla Ports, and other bilateral connectivity initiatives will further improve the region’s connectivity with not only the neighbouring countries but also with ASEAN and the wider global market (Ministry of Ports, Shipping, and Waterways 2022). As a result, there is a significant opportunity to increase India’s commerce with ASEAN and other bordering nations, which can be effectively taken advantage of by building world-class infrastructure for transportation, logistics, and processing and value addition. The North East is being placed as integral to India’s Act East Policy, which has further changed the narrative in favour of growth and development. Further, there have been efforts to tap into the existing potential of the region, such as agriculture and tourism, to ensure that the local communities benefit and are given an opportunity for financial upliftment. For instance, 1.55 lakh Hectares of land are being utilised for organic farming, and Sikkim has emerged as the first 100% organic State in India. The National Bamboo Mission was established to boost bamboo and allied industries, and the National Mission for Edible Oils was established to give a boost to palm oil farming in the North East Region (MDoNER 2023).

Changing the narrative On a parallel scale, the government has been establishing the fact that the people of the North East are valued and that the region is central to the economic growth of the country. The Prime Minister gave the title of ‘Ashtalakshmi’ to the north-eastern States and declared them the next growth engine of India. The narrative change of calling the North East region “Ashtalakshmi” has had a positive impact on insurgency by fostering cultural pride, unity, economic development, and diplomatic initiatives. It has helped bridge divides and build stronger social bonds, which are essential for countering insurgencies.

Addressing the feeling of neglect Furthermore, overcoming the ingrained feeling of neglect and ‘being ignored’ by the central government is being overcome by an outward show of political focus. The Prime Minister himself has visited the region over 50 times in the last nine years. Besides, at least 20 union Ministers are mandated to visit the backward regions of the North Eastern States each month. Union ministers’ visits serve as confidence-building measures, reinforcing the government’s commitment to the region’s welfare and security. It instills a sense of trust and reassurance among the local population that their concerns are being acknowledged and taken seriously. This can help reduce grievances and create an environment conducive to peace and stability.

Countering Extremism in North East—Learning from Past and Way Forward  83

Celebrating and preserving the culture of the North East There have been efforts to celebrate, preserve, and promote the cultural heritage of the North East region. By providing platforms, support, and recognition for the region’s art, music, crafts, and traditions, the government plays a vital role in nurturing and sustaining the unique cultural identity of the North East. The government recently enabled nationwide celebrations of the 400th birth anniversary of Lachit Borphukan, the Ahom general and national hero of Assam. Sending a strong message of oneness with the North East and a collective celebration of their golden and proud heritage. The government encourages cultural integration and harmony by promoting cultural exchanges and inter-community interactions. Efforts are made to create platforms where different communities can come together to celebrate their shared heritage and appreciate each other’s cultural practises. For instance, for the first time, the Madhavpur Ghed Festival (MoC, 2022) is celebrated and funded by the central government to acknowledge a core relationship between Western and North-Eastern India. It commemorates the mythological wedding between Lord Krishna, an incarnation of Lord Vishnu in Hindu mythology, and Rukmini, the princess of Vidarbha. The festival is held at Madhavpur village in Gujarat, where it is believed that Lord Krishna married Rukmini. It serves as a symbol of unity and cultural harmony between Gujarat and the North East, contributing to the overall cultural fabric of India. Cultural exchange programmes such as the recently launched ‘Yuva Sangam programme’ (MoE, 2023) by the Ministry of Education have enabled a pan-India youth exchange programme where the youth from the North East were taken on Cultural tours to different parts of the rest of India and the youth from the rest of India were taken on tours to different States of North East India. The aforementioned interventions have successfully channelled the national focus, and the North East, with all its glory, is on the track of resurgence. However, no land is free from conflicts. And in a multiethnic society like the North East, with its historical baggage, you will witness sporadic events. The most recent examples of violence in Manipur in 2023 (between the Kuki and Maiti communities) or the killing of civilians in an alleged botched counter-insurgency operation in Mon district of Nagaland in 2021 are examples of how complacency in the North East’s peace and stability would come at a huge cost. However, if the macro framework is already structured to support development, these events will be temporary and dissolve in no time.

Way forward Considering the multi-ethnic and multi-lingual fabric of the North East Region, an approach of participation and dialogue is the most sustainable and holds the potential to present long-lasting solutions to the security challenges. The Civil Society holds immense influence among the people and derives its power from the ethnic and communal bonds of the people and their tribal background. Therefore, it is important to ensure that there is a constant dialogue with the civil society and collectives of the tribal communities. Similarly, it must be ensured that this generation of youth does not carry the baggage of the bloody past and is at par with youth from the rest of India, chasing opportunities and growth. Further, Years of insurgency have brought in their wake many social challenges, one of which is corruption. Considering the strategic nature of the region and the huge financial assistance from the centre, it is important to ensure that the developmental projects are implemented prudently and completed on time. This is an important aspect of justice for the people of the Northeast after decades of neglect. Digitization and third-party inspections may be necessary tools for optimising the impact of government interventions. This includes a massive crackdown on drug and arms trafficking in collaboration with the State Governments.

84  Forensic Justice A detailed study of customary laws and traditional legal systems must be made in order to sensitise the officers, army personnel, and judiciary to the local practises and beliefs. This would help in aligning national policies and schemes to the ground realities of the region, usher in awareness among the people from the rest of India, and give assurance to the people of the North East that their culture is not alien to India but just one of the many traditions and cultures of the diverse nation of India.

Conclusion It would be apt to say that the North East is a success story and gives off many lessons for countering low-intensity and long-standing conflicts like those in the North East Region. However, no matter how deep and magnificent the term justice may sound or how fascinating the urge to attain it is, the truth is that the path to justice is as convoluted as it can get. Justice is not a palette of black and white. It is not simply categorising people, societies, situations, and activities under a rigid right and wrong. True justice is deeper and more multidimensional. Only if we can address various factors like geographical divides, ethnicities, personal experiences, modus operandi of various communities, find the victim in the perpetrator or vice versa, operate in the background, and see it through the lens of a long-term approach, can we achieve true justice. The North East is a precious example of the same. The change of approach from the strategy of securing to the strategy of participation and conciliation Has helped address all the above-mentioned aspects operating in the background, and the result is out there for evaluation. This change of approach is leading the way towards development. This change of approach is leading to a more secure native. This change of approach is seemingly integrating this part of the land with the rest of India, and this change of approach is not only dissolving the conflicts but converging the energies to harness the potential of the region and set it on a track of long-lasting development.

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86  Forensic Justice 28. Kruglanski, Arie, Jocelyn Belanger, Michele Gelfand et al. “Terrorism—A (Self) Love Story: Redirecting the Significance Quest Can End Violence.” American Psychologist 68, no. 7 (2013): 559–575. Accessed May 29, 2023. https://doi.org/10.1037/a0032615. 29. Kundra, Ashish. 2022. Resurgent North East. 1st ed. Delhi: HarperCollins India. 30. LAITHANGBAM, IBOYAIMA . “Drug Running Continues Unabated in Manipur.” Frontline (New Delhi), February 15, 2023. https://frontline.thehindu.com/news/drug-running-continues-unabated-in-manipur/ article66512221.ece. 31. Mackenzie, Alexander . 1884. History of the Relations of the Government with the Hill Tribes of the NorthEast Frontier of Bengal. Home Department Press. 32. McCauley, Clark, and Sophia Moskalenko. “Mechanisms of Political Radicalization: Pathways Toward Terrorism.” Terrorism and Political Violence 20, (2008): 415–433. Accessed May 29, 2023. https://doi.org/ doi/abs/10.1080/09546550802073367 33. McCauley, Clark, and Sophia Moskalenko. “Understanding Political Radicalization: The Two-Pyramids Model.” American Psychologist 72, (2017): 205–216. Accessed May 29, 2023. https://doi.org/10.1037/ amp0000062. 34. Moghaddam, Fathali. “The Staircase to Terrorism: A Psychological Exploration.” American Psychologist 60, no. 2 (2005): 161–169. Accessed May 29, 2023. https://doi.org/10.1037/0003-066X.60.2.161. 35. Neumann, Peter R. “The Trouble with Radicalization.” International Affairs 89, no. 4 (2013): 873–893. Accessed May 29, 2023. https://doi.org/10.1111/1468-2346.12049. 36. Nusio, Enzo. “The Role of Sensation Seeking in Violent Armed Group Participation.” Terrorism & Political Violence 32, no. 1 (2017): 1–19. Accessed May 29, 2023. https://doi.org/10.1080/09546553.2017.1342633. 37. Parashar, Utpal. “‘Did ULFA-I Use Ceasefire to Regroup, Enlist Recruits? ” Hindustan Times, August 10, 2022. https://www.hindustantimes.com/india-news/did-ulfa-i-use-ceasefire-to-regroup-enlistrecruits-101660907384773.html. 38. Pau, Pum K. “Behind the Enemy Line: British-led Guerrilla Operations in the Indo-Burma Frontier during the Second World War.” Small Wars and Insurgencies 30, no. 2 (2019). Accessed May 25, 2023. https://doi.org/10.1080/09592318.2018.1546368. 39. Schmid, Alex. “Radicalisation, De-Radicalisation, Counter-Radicalisation: A Conceptual Discussion and Literature Review.” International Centre for Counter Terrorism, (2013). Accessed May 27, 2023. 40. Sharma, Madhur. “Boundary Issues: What Are The Border Disputes In Northeast India, Why Are They So Complex? ” Outlook (New Delhi), May 25, 2023. https://www.outlookindia.com/national/boundaryissues-what-are-the-border-disputes-in-northeast-india-why-are-they-so-comple-news-289528. 41. Sikkens, Elga, Marion Van sen, Sieckelinck Stijn, and Micha De Winter. “Parental Influence on Radicalization and De-radicalization According to the Lived Experiences of Former Extremists and Their Families.” Journal for Deradicalization 12, (2017): 193–226. Accessed May 27, 2023. https://journals.sfu. ca/jd/index.php/jd/article/view/115/96. 42. Subramanium, K.S. “Disturbing Act: The AFSPA’s History in the North-eastern Region.” Frontline (New Delhi), March 17, 2022. https://frontline.thehindu.com/the-nation/disturbing-act-the-history-of-afspain-the-north-eastern-region/article65274578.ece. 43. Tajfel, Henri, and John Turner. 2001. An Integrative Theory of Intergroup Conflict In M. A. Hogg & D. Abrams (Eds.), Intergroup Relations: Essential Readings. Psychology Press. 44. Upadhyay, Archana . “Terrorism in the North-East Linkages and Implications.” Economic & Political Weekly 41, no. 48 (2006). Accessed May 29, 2023. https://www.epw.in/journal/2006/48/special-articles/ terrorism-north-east.html?0=ip_login_no_cache%3D0848f109ed24119e4f7b0e5e631c2955. 45. Vajpeyi, Ananya. 2009. Resenting the Indian State: For a New Political Practice in the Northeast In Beyond Counter-insurgency: Breaking the Impasse in Northeast India, Sanjib Baruah Ed. Oxford. 46. Valk, Van D., and Willem Wagenaar. 2010. The Extreme Right: Entry and Exit. Leiden: Anne Frank House/ Leiden University. 47. Van Deb Bos, Kees. “Making Sense of Life: The Existential Self Trying to Deal with Personal Uncertainty.” Psychological Inquiry 20, (2009): 197–217. Accessed May 25, 2023.

Countering Extremism in North East—Learning from Past and Way Forward  87 48. Venhaus, John. “Why Youth Join Al-Qaeda.” (2010). Accessed May 29, 2023. 49. Yousuf, Danish. “The Strategic Alliance of Trans-Border Insurgent Groups: A Reason for the Turmoil in North-East.” Centre for Land and Warfare Studies. CLAWS, February 11, 2022. https://www.claws.in/thestrategic-alliance-of-trans-border-insurgent-groups-a-reason-for-the-turmoil-in-north-east/.

Chapter 5

Cyberspace Innocence and Victimization: A Critical Study of Fantasy Sports Suleman Choudhri and R. N. Mangoli

Abstract: Cyberspace is a national environment in which communication over a computer network occurs, which includes virtual interfaces of all kinds such as sharing of information, communication, playing games, etc. Recently, cyberspace has evolved after the emergence of smartphones and 4G data, which changed the dynamics of cyberspace. All activities, including playing games, turned out to be online. One major example of this evolution is fantasy sports, which is one kind of lottery where several individuals invest to gain financial benefits without knowing the consequences because of their innocence. Resultantly, on certain occasions, several individuals lose their hard-earned money by playing such sports and become victims of Cyberspace innocence. Therefore, seeing the growing victimization incidents in fantasy sports, it clicks for us to conduct an empirical, in-depth study to ascertain the real cause and losses that occurred to innocent people unknowingly. Hence, the current research is themed toward innocent victims of cyberspace, where most individuals are not aware that they are being victimized or that their certain attitudes will cause them to be the victims. Current research is limited to how fantasy sports play will result in victimization. 250 samples have been collected in Belagavi, Karnataka, through snowball sampling. The study is a quantitative and exploratory type of research; data will be presented in the form of tables, and analysis has been done accordingly. The outcome of the study is going to be a breakthrough to raise awareness in the general public and may help in making new policing decisions in this regard to save innocent people from such victimization. Keywords: Cyberspace, Innocence, Fantasy sports, Attitude, Victimization

Introduction The study of victims and things related to their victimization is considered victimology, which is the branch of criminology that completely deals with the victims of crime (Drapkin & Viano 1974). But Mendelsohn’s (1956) interpretations are different; he coined a few new terminologies such as victimal contrasting to criminal, victimity contrasting to criminality, and victimal receptivity, which

Cyberspace Innocence and Victimization: A Critical Study of Fantasy Sports 89

is an individual’s unconscious attitude toward being a victim, and argues that victimology is an autonomous discipline parallel to criminology (quoted from Ram Ahuja 2005). As victimology has grown in recent years and is treated as an autonomous discipline, several contributors to victimology have shifted their focus from criminals to victims while explaining the causation of victimization rather than the causation of crimes. It is believed that from a certain perspective, criminals behavior or attitude towards victims is shaped or mound by the victim (Wolfgang 1957), and in certain instances, the victim may precipitate or majorly contribute to his or her victimization. By considering the role of victims in crime, many scientists have come up with several concepts, one of which is the classification of victims based on their characteristics. While studying victimization, Hans Von Henting (1948) argues that victims may provoke criminals to commit a crime by identifying the characteristics of victims that serve as a risk towards victimization and classifying victims into 13 categories as follows: Young, Female, Old, Immigrant, Depressed, mentally defective, Acquisitive, Dull normal, Minorities, Wanton, lonely, Heartbroken, tormentor, and fighter, and explains how all such victims contribute towards their victimization. Further, Mendelsohn classified victims into six categories: completely innocent victims, victims with minor guilt, victims as guilty as the offender, victims guiltier than the offender, most guilty victims, and imaginary victims. (Debarati Halder, 2022). Further studies in the discipline of victimology have discovered a few terms such as penal couple, the duet frame of crime, and numerous other vocabularies that have been employed to explain the relationship between criminal and victim and their role in victimization. Specifically, Mendelsohn argues that it is of utmost importance that the relationship between victim and offender is examined thoroughly, as in certain cases this relationship is much more significant than shreds of evidence at the crime scene to understand the guilt and innocence of the accused (Hari Om Gautam 2011). But the recent advent of technology has changed the dynamics of crime victimization and the relationship between victim and offender, as in many instances in cybercrimes, victim and offender are not known to one another. Cybercrimes are offenses that refer to the combination of networked systems, hardware devices, software tools, and methods that people use on the internet, which has transcended the crime from local to international jurisdiction (B. Fisher and S. Lab 2010). A common belief that the victim and offender are known to one another has changed as the technology has grown; the dynamics in cyberspace have changed this concept, and the victimoffender relationship has evolved as the technology has evolved. As most of the victim and offender are not known to one another, in such scenarios, the innocence of the victims over cyberspace could be one of the major factors in the victimization. Over the past ten years, the growth and appeal of fantasy sports leagues have been fueled by technological advancements such as high-speed Internet, mobile phones, which allowed easy access to real-time sports data, and advanced analytical techniques that have assisted in the development of fantasy sports across the globe, which has exponentially grown. According to recent data from the Fantasy Sports Trade Association, 57.4 million people in the U.S. and Canada participated in fantasy sports, making up around 16 percent of the combined populations of the two nations (US Census Bureau 2016). The percentage of gamers who engaged in daily fantasy sports (DFS) climbed from 31 percent to 64 percent between 2012 and 2015, according to the same survey. Through home television, online streaming, social networking, and sports bars, new media formats have made it possible for the general public to consume mediated sports content with ease. The collective phenomenon of watching sports has been supplanted by individualized experiences due to the growing usage of mobile devices and technology by sports enthusiasts. Sports are no longer

90 Forensic Justice only about playing; fans’ consumption of the sport is now a big component of it. The most recent development in sports spectator engagement is their direct involvement in a real-world game via online fantasy sports platforms. In India, there isn’t a very extensive history of fantasy sports. When ESPN released Super Selector 1 as a free-to-play online team selection game in 2001, it was the first time it was made systematically available. There was no structured fantasy sports service for several years after Super Selector was discontinued in 2003. This changed in 2008 with the introduction of Dream11, which occurred at the same time as the establishment of the Indian Premier League (IPL), a professional cricket league that has since developed into one of the most well-known sporting assets in the world. IPL fans were to receive fantasy cricket from Dream11 in an effort to increase their level of involvement with the game. At first, Dream11 exclusively provided free-to-play, season-long formats akin to those found in fantasy sports for European football leagues. Over the years, as the contests found increasing legal acceptance and consumer uptake, paid formats and daily contests were added to the offerings. The Indian fantasy sports industry has expanded quickly in recent years because of these advances and the general availability of inexpensive mobile data plans. The exponential increase in users and operators can be used to measure the sector’s progress; in June 2016, there were reportedly 2 million registered fantasy sports users; by December 2019, that number had risen to 90 million. At least 140 fantasy sports businesses were said to exist as of August 2020, and in 2018 and 2019, they raised a combined INR 15 billion (about USD 200 million) in international investments. Due to this expansion, the fantasy sports market reported INR 24.7 billion (about USD 330 million) in sales for the fiscal year 2019–2020. Users spent INR 165 billion (almost USD 2.2 billion) on Indian fantasy sports platforms during this time. Hence, the current study has been carried out to know how the concept of innocence of victims is contributing to their victimization in cyberspace, specifically while playing fantasy sports. Fantasy sports are online virtual or imaginary games where participants assemble on a common platform to form virtual teams of active sports personalities from their real lives on the said platform by betting with money. The virtual teams compete with one another, and based on the real-life live performances of players, their performances are converted into points that are compiled and totaled according to a roster selected by each fantasy team’s manager. These point systems can be simple enough to be manually calculated by a “league commissioner,” who coordinates and manages the overall league, or points can be compiled and calculated using computers tracking the actual results of the professional sport. In fantasy sports, team managers draft, trade, and drop players. Analogously to real sports, based on the performances of real-life teams, a few virtual teams will be announced as winners based on the performances of their opted players, which will result in either gaining or losing money. These fantasy sports have recently evolved, and several platforms have come into existence, such as Dream11, Mycircle11, Howzat, Gamezy, etc., and the users of such platforms are increasing day by day. Most platforms offer huge amounts of prize money for winning teams to traders or investors, but not all the investors are fortunate enough to win prizes as most of them are on the losing side. Hence, the current research is themed towards innocent victims of cyberspace, where most of the individuals are not aware that they are being victimized or that their certain attitudes will be causing them to be the victims. The study will try to ascertain whether the investors of money in these games are aware of the consequences of playing these games and how much they have invested. Research is limited to how fantasy sports playing will result in victimization.

Cyberspace Innocence and Victimization: A Critical Study of Fantasy Sports  91

Review of Literature A study on “Daily Fantasy Sports Players: Gambling, Addiction, and Mental Health Problems” by Lia Nower, Kyle R. Caler, Dylan Pickering, and Alex Blaszczynski tried to find out if there was a relationship between fantasy sportsDFS play and gambling behavior. In this study, researchers sought to comprehend the kind, frequency, and preferences of gambling behavior amongst Daily Fantasy Sports players, as well as the severity of gambling and concomitant conditions. To accomplish this goal, the researcher employed a self-administered questionnaire, and data on gambling and leisure activities were congregated from an epidemiologic study of 3634 New Jersey adults. To acquire a representative, cross-sectional sample of non-institutionalized people, age 18 or older, the researcher contacted Participants via phone (landline and cell) and the internet. The remaining 2146 participants, who were included in these analyses after excluding non-gamblers, reported either playing Daily Fantasy Sports (n = 299) or engaging in gambling but not Daily Fantasy Sports (1847) in the previous year. To find the most important traits and predictors of Daily Fantasy Sports players, statistical approaches for data analysis, Univariate comparisons, and multiple logistic regression studies were carried out. Overall, the study’s discoveries exhibited that Daily Fantasy Sports players engaged in more gambling activities and did so more frequently than other categories of gamblers. The majority of respondents were men, and reports also suggest that the players’ frequent suicidal thoughts over the previous year were highly predictive. The likelihood of playing daily fantasy sports increased if you were Hispanic rather than Caucasian and single rather than married or cohabiting. According to research, Daily Fantasy Sports players exhibit significant levels of gambling frequency, problem severity, and comorbid issues, including suicide ideation. A study on “Do fantasy sports players’ actions influence their performance in Dream11 contests? Adding data to the debate on skill vs. chance “by Agam Gupta, Yash Khandelwal, Manish K. Singh, and Ashutosh Singla, in this specific study researchers tried to find out whether emerging as a victor in the competitions of fantasy games is skill-based or depends on chance. To find out, this researcher utilized the data from one of the most popular fantasy sports applications in India, which is Dream11. They utilized the participation data from the public contest on the Dream11 during the Twenty 20 (T20) Cricket World Cup organized by the International Cricket Council to find out whether skill or chance plays the major role. The results of this particular study show that talent and chance coexist in a balanced manner. Their data consists of 31 games of T20 cricket during the T20 World Cup, which shows that in 50% of games, teams that were randomly picked outperformed the teams selected based on their skills, or teams selected randomly performed better than the real teams made by real users. The researchers also found that while randomly simulated teams do better against tightly matched teams, genuine teams do better in games when the skill disparity between two teams is substantially larger. However, when we compared individual players within matches, we discovered that players who played on more teams and in more games outperformed the rest. Data clearly shows that randomly chosen teams perform better than teams chosen by actual users, indicating that the expertise required to choose teams is quite low. In a study on “Emerging from the Shadows: The Evolving Legal Treatment of Fantasy Sports in India” (2021) by Nandan Kamath, Abhinav Shrivastava, and R. Seshank Shekar, researchers discuss that Super Selector 1 was the first free-to-play fantasy sports game for online team selection in India, and it was launched by ESPN in 2001. Nevertheless, it ceased operations in 2003. This means that fantasy sports in India don’t have a long history. Dream11, presently the most popular and widely used fantasy sports app in India, was introduced in 2008, the same year when the Indian Premier League (IPL) began play. Since then, fantasy sports have gained popularity in India. As the Indian

92  Forensic Justice Premier League has grown into one of the wealthiest leagues across the globe, aided by cheap mobile data plans becoming widely available, the Indian fantasy sports business has grown rapidly in the last few years. The exponential upsurge in users and operators can be used to approximate the sector’s growth. In June 2016, there were reportedly 2 million registered fantasy sports users; by December 2019, that number had risen to 90 million. There were reportedly at least 140 fantasy sports operators as of August 2020, and in 2018 and 2019, they received a combined INR 15 billion (about USD 200 million) in international investments. Due to this expansion, the fantasy sports sector reported revenues of INR 24.7 billion (about USD 330 million) in the fiscal year 2019–202012, with user spending on Indian fantasy sports platforms totaling INR 165 billion (almost USD 2.2 billion). The study concludes that even though the industry has grown, there are no specific laws governing it as “Public gambling law” only prohibits gambling and excepts the “game of skill,” and the same phrase is used by these platforms that they are skill games or sports rather than gambling. Additionally, the State List includes the legislative topics “sports, entertainment, and amusements” and “betting and gambling,” giving each State the authority to regulate these topics within its borders. A study on “Flight of Fantasy or Reflections of Passion?” Knowledge, skill, and fantasy cricket” (2019) by Souvik Naha, in this study, the researcher discusses that in the US and other European nations, fantasy sports have taken over the internet sphere, while its impact began to be perceived in India in the 2010s as smartphone technology advanced in that specific period and also the number of smart phone manufacturing industries increased, providing scope for the expansion of the internet and related things. There have been uncertainties raised around fantasy cricket being a front for organizing internet gambling as the number of Indians playing the game has exploded in recent years. Given the “beautiful uncertainty” of cricket and the necessity to take luck into account in any playtime, the researcher in this article sought to determine whether or not fantasy cricket is a game of skill. They also attempted to analyze the level of knowledge needed to excel in fantasy cricket. Here, the researcher has studied fantasy cricket as an object of his own experience and knowledge and offered an interpretive personal account to mediate a discussion about the degree to which knowledge is important in fantasy gaming success. To find this out, researchers have used the methods of autoethnography and phenomenology. The researcher has selected the Women’s T20 World Cup of 2018, the India-Australia Test Series 2018–19, the Big Bash League, etc. for analysis, and Dream11 was the fantasy sports selected here for analysis. Researchers’ own six-month fantasy game playing experience was employed in this study, which found that playing by chance or luck is less significant than understanding the game and skill. A researcher article on “From Fantasy to Reality: The Role of Fantasy Sports in Sports Betting and Online Gambling” (2019) by David M. Houghton, Edward L. Nowlin, and Doug Walker discusses that Pay-to-play (P2P) fantasy sports participation is growing quickly. Pay-to-play fantasy sports may appear like a secure and acceptable alternative for a sports lover who has no interest in gambling. This particular study has observed the connection between fantasy sports, gambling, and sports fandom to understand whether fantasy sports participation has any consequences for sports fans who participate in sports betting or online gambling. To prove this, the researcher used a self-administered questionnaire with a 7-point Likert scale and recruited people from Amazon Mechanical Turk (MTurk) with a general interest in sports. The sample size was 480, and the usable response rate was 96 percent. The sample consists of 64 percent men, 80 percent white people, and 61 percent single people. The 25- to 34-year-old age group makes up the largest age group (44 percent). 54 percent of respondents said they made more than $25k a year, and 88 percent of respondents said they had at least some college education. Together, the data demonstrate that sports fandom boosts gambling behavior among materialistic people, both directly and indirectly through fantasy sports.

Cyberspace Innocence and Victimization: A Critical Study of Fantasy Sports  93

However, even for non-materialistic players and even if they simply play free fantasy games, sports fandom enhances gambling behaviors through involvement in fantasy sports. Although regulation presents certain difficulties, we think fantasy sports has many great qualities and offers a lot of advantages to a huge and expanding number of users. It is a social activity that enhances traditional sports viewing and offers sports enthusiasts additional opportunities to participate in their hobbies. But as fantasy sports have developed, some businesses have been able to add elements of gambling to their competitions. Even individuals who are less materialistic may be at risk due to this change without being aware of it. Therefore, it is recommended that public policymakers recognize these changes to the industry and take steps that place Pay-to-play fantasy sports in line with similar gambling-like activities.

Research Gap After reviewing the previous studies, it has been found that one research study entitled “Daily Fantasy Sports Players: Gambling, Addiction, and Mental Health Problems” by Lia Nower, Kyle R. Caler, Dylan Pickering, and Alex Blaszczynski tried to find out a relationship between fantasy sports/daily fantasy sports (DFS) play and gambling behavior, and another study entitled “Do fantasy sports players’ actions influence their performance in Dream11 contests? Adding data to the debate on skill vs. chance “by Agam Gupta, Yash Khandelwal, Manish K. Singh, and Ashutosh Singla, in this particular study researchers tried to find out whether emerging as a winner in the contests of fantasy games is skill-based or depends on chance. Another study entitled “Emerging from the Shadows: The Evolving Legal Treatment of Fantasy Sports in India” (2021) by Nandan Kamath, Abhinav Shrivastava, and R. Seshank Shekar discusses the history, legalities, and laws regulating it. Further study on “Flight of Fantasy or Reflections of Passion?” Knowledge, skill, and fantasy cricket” (2019) by Souvik Naha focuses on finding out whether or not fantasy cricket is a game of skill based on his own experience and research on “From Fantasy to Reality: The Role of Fantasy Sports in Sports Betting and Online Gambling” (2019) by David M. Houghton, Edward L. Nowlin, and Doug Walker explains whether fantasy sports playing has any impact on sports fans indulging in sports betting or online gambling and investigates that assumption by examining the relationship between sports fanship, fantasy sports, and gambling. There are several other studies that have touched upon various other concepts pertaining to fantasy sports, but no previous studies have tried to analyze the innocence of the fantasy sports players while investing the money and also the losses that occurred to them by being in the sports for longer durations.

Research Methodology Formulation of the problem The first step in doing research is formulating the research problem, which refers to an ambiguity that the researcher may have encountered in theoretical or practical situations. The start of the study is when the researcher finds a solution to the particular challenge. Present research is the problem confronted by researchers in Belagavi city; henceforth, the problem is formulated as “cyberspace innocence and victimization,” in which the innocence of victims is tried to ascertain while investing in fantasy sports.

94  Forensic Justice

Aim of the study A research aim outlines the primary objective or overarching purpose of your research endeavor. Typically, a research aim or goal is a brief, common phrase that summarizes the trial’s overall purpose. The aim of the research articulates the intention or ambition of the researcher in the particular study; in a single sentence, it summarizes what a researcher is anticipating to accomplish at the conclusion of the research. Hence, considering the fact that aim is the focal point of the research, the aim of this particular research is towards “Innocent victims of cyberspace and their attitude while investing in fantasy games or sports, where most of the individuals are not aware that they are being victimized or that their certain attitudes will be causing them to be the victims.

Objectives of the study In every research study, the aim specifies what the study answers about, whereas the objectives stipulate how the study will answer that aim. Objectives divide a specific research aim into numerous smaller fractions, each of which represents a significant section of research. The objectives of current research are to ascertain whether the investors of money in these games are aware of the consequences of playing them and how much they have invested.

Types of research Exploratory research It is nothing but exploring the information we have received from respondents. It is a type of research that we use while analyzing or interpreting data that has been collected for research purposes. This method has been used to explore the information given by the respondents and to come to a conclusion on the basis of that information, or to give specific meaning to the information. Such research is usually carried out when the problem is at a preliminary stage. It is often referred to as a grounded theory approach or interpretive research, as it is used to answer questions like what,why, and how. Quantitative research It is defined as a systematic investigation of phenomena by gathering quantifiable data and performing statistical, mathematical, or computational techniques. Quantitative research collects information from existing and potential customers using sampling methods and sending out questionnaires, online surveys, polls, etc., which are often closed-ended and whose results can be depicted numerically.

Methods of research Survey research method A survey is a research method used for collecting data from a predefined group of respondents to gather data or information and their insights on a specific topic of the researcher’s curiosity. It is the process of conducting research using surveys that the researcher sends to the respondents; it is a quantitative method for collecting information from a pool of respondents by asking multiple survey questions. To conduct the present research, the researcher has traveled across Belagavi city and collected data through physical presence in the city.

Cyberspace Innocence and Victimization: A Critical Study of Fantasy Sports  95

Methods of data collection Questionnaire A questionnaire is a research tool. A questionnaire is a list of a series of questions pertaining to the research topic that suits the objectives; it is nothing but questions regarding the problem of the research through which the researcher collects the information. The statistical Society of London developed the research questionnaire in 1938, which has become an integral part of every survey research. A research questionnaire usually consists of both closed-ended and open-ended questions; it is up to the researcher whether they want to utilize open-ended or closed-ended questions. For the present research, I have utilized questionnaires that were in a closed-ended format where a respondent had to give the specific answers mentioned in the options, and the questionnaires were handed over to each respondent by meeting them face-to-face.

Population or universe of the study A universe, in statistics, refers to a population comprising the units or informants of data, whether animate or inanimate, relating to a problem under study. In other words, it is the totality of the phenomenon studied or the set of objects of a statistical investigation. In the current research exact universe of the study is not known as the data of fantasy sports players is not available officially, exclusively for Belagavi city. By considering the fact that a sample of 250 is utilized in the current research,

Source of data Origin of data from a specific location or initial location from where the data is born or from where physically first digitized the information is called the source of data; however, even the most refined data may serve as a source as long as another process accesses and utilizes it. Primary data has been used for the present study; the data of the study has been directly collected from the citizens whoever was found by chance while collecting data; they directly responded; however, data is primarily collected from respondents. Data that a researcher directly collects for their research is considered primary data, which the researcher has collected by considering the aim and objectives of research; it is usually collected through interviews, surveys, etc. The original source of the data, from where the data originated, is usually considered the best data in the research because the researcher is aware of the data.

Sampling and sample size of the study A sample of the study has been directly collected from the respondents (citizens of Belagavi) through the questionnaire relating to the objectives, and 250 is the sample size of the study. The nonProbability type of sampling and the snowball method of sampling are used for the data collection. The sample is the most essential aspect of any empirical or scientific research, as the whole study is based on the sample that the researcher has collected during the course of research and analysis, and the results are based on the sample itself. Non-Probability sampling Non-probability sampling is where the researcher’s knowledge and experience are used to create samples. Because of the involvement of the researcher, not all the members of a target population have an equal probability of being selected to be a part of a sample. As the exact population was

96  Forensic Justice not known, it was not possible to utilize probability sampling; hence, non-probability sampling is utilized. Snowball sampling Snowball sampling, or chain-referral sampling, is defined as a non-Probability sampling technique in which the samples have rare traits. This is a sampling technique in which existing subjects provide referrals to recruit samples required for a research study. This sampling technique can go on and on, just like a snowball increasing in size, until a researcher has enough data to analyze to draw conclusive results that can help a researcher make informed decisions. The same technique is used in the current research, as actual user data for fantasy games in Belagavi city is not available for the researcher. The first sample was collected from an individual I personally knew; further, I took reference from other individuals; similarly, the sample size of 250 was collected from residents of Belagavi city.

Tabulation To facilitate comparison and statistical analysis, numerical data is logically represented in the form of rows and columns, which facilitates statistical analysis and interpretation by bringing related information close to each other. The method of placing organized data into a tabular form is known as tabulation. It may be complex, double, or simple, depending on the nature of the categorization.

Relevance of study Fantasy sports are evolving rapidly, especially in India. It has been a billion-dollar industry that has attracted foreign investment, but on the other side, it is promoting the investment of money by the users by increasing the amount of prizes, which is a matter of concern as it may lead to frequent investment of money resulting in losses to the investors, which may have an impact on individuals, families, and also the social fabric of our society; hence, considering these, the current study is carried out. .

Scope of the study Current research will principally focus on fantasy sports playing and the impacts of frequently investing in fantasy games or sports on the users of such platforms, which might have negative consequences. It is the need of the hour, as on numerous occasions it has affected the social fabric of our community. After the completion of the study, it will assist in policymaking to control fantasy sports investment, as in the current scenario, present norms are not well equipped to control fantasy sports investment.

Limitations of the study 1. The findings of the study cannot be generalized for the reason that the study was conducted in a single city, which is Belagavi, in the Karnataka state of India, which is incredibly small if we compare it to the rest of the country or the world. 2. The sample size is also small; consequently, it is difficult to find significant relationships in the data or to discover suitable results. 3. Data may not be reliable for the reason that the responses may not have given factual information because sometimes respondents might have been biased. 4. There might be other sampling and non-sampling errors in the study.

Cyberspace Innocence and Victimization: A Critical Study of Fantasy Sports  97

Future scope for the research As we have witnessed drastic changes in fantasy sports-related games, we may predict that in the future these platforms may get a further boost as every individual is tech-savvy in the 21st century. Even though technology has many positives, it also carries negativity in society. Currently, even though there are not many incidents of fantasy sports addiction and losses to the users, if the individual continuously invests and loses, it may have negative impacts on the individual as well as society. By considering the same fact, a current study was carried out to find out the losses that occurred to investors and their innocence towards them. Even though current research is a small attempt to answer the negative consequences of fantasy sports, this study cannot be generalized. Future researchers related to fantasy sports must carry out their research on a larger scale by adopting more samples and taking whole Indian states into consideration. Also, future research should focus on the psychological and economic impacts of these sports on individuals and society, specifically any issues of crime and victims.

Results and Discussion The research on Fantasy sports and victimization is an attempt to explore cyberspace as a means to facilitate cybercrimes. Cyberspace has a vast area of which fantasy sports is a very small portion. In the current research, researchers have tried to analyze how fantasy sports may lead to victimization. In order to achieve this, a sample of Belagavi city residents who play fantasy sports was drawn. Based on their demographics, 207 of the respondents were male, while 43 were female, and the age distribution of the respondents showed that 39 respondents are in the 18–21 age group, followed by 105 respondents in the 22–25 age group and 106 respondents in the 26–30 age group. 47 of the participants were students, 78 owned their own enterprises, 102 held jobs, and 23 were jobless. There were 63 PUC or 12th grade graduates, 84 graduates, 56 postgraduates, and 47 diploma holders. Table 5.1 Type of Fantasy Sports Played Sl no

Which fantasy sports/games do you play

Responses

1

Dream11

232

2

Mycircle11

198

3

Howzat

44

4

Gamezy

67

5

Winzo

117

6

A23Games

7

MPL

8

ESPN fantasy games

28

9

Any other

12

34 167

When the respondents were asked about which fantasy sports they play the most, they indicated that (92.8%) play Dream11, which is the most popular platform in Belagavi city, followed by Mycircle11 at 79.2%, Winzo at 46.8%, and MPL at 66.8%. As Dream11 is endorsed by most sports personalities, it might have impacted the choices of the respondents while choosing the platform. Not just Dream11, Mycircle11, Winzo, and MPL are endorsed by famous personalities such as cricketers

98  Forensic Justice and actors, which might have impacted the selection and usage of the respective platforms. Whereas other platforms such as ESPN at 11.2%, Howzat at 17.6%, and Gamzy at 26.8% are least advertised or endorsed by the least popular people, hence they might have the fewest users of those platforms. The responses are more than 250 in the particular question for the reason that responders were allowed to select more than one platform that they use, hence the result in such a way, and it also indicates that respondents use more than one platform. Table 5.2 Duration of Playing such kind of Fantasy Sports Sl no

Since how long playing

Responses

1

0 to 6 Months

26

2

6 to 12 Months

78

3

13 to 18 Months

56

4

18 Months & Above

90

The enquiry pertaining to how long the respondents were playing the fantasy games indicates that 10.4% of individuals were involved from 0 to 6 months, which was the minimum period of time in the questionnaire, followed by 22.4% who were playing it from 13 to 18 months, and 31.2% from 6 to 12 months. The majority of respondents, that is 36%, played fantasy sports for the last 18 months and above, which was the period of COVID-induced lockdown and restriction or COVID protocol. As most people (58.4%) have been using fantasy sports applications for more than a year, there might be instances of addiction to such applications in users on par with other forms of addiction, which might have several consequences for individuals. As many studies have indicated that cyber-related activities grew during the COVID era, one among them is COVID-19 stress and addictive social media use by Nan Zhou and Guangyu Zhou. In their study, they found that people who experienced COVID-19 stress were at high risk of addiction to social media. Table 5.3 The Frequency of usage of Fantasy Sports Sl no

Frequency of usage

Responses

1

Daily

43

2

Once in two days

00

3

Once in four days

00

4

Once in a week

24

5

Season wise

183

When enquired pertaining to the frequency of usage, it is found that most of the people use the fantasy sports-related applications during the important seasons of the specific games, that is, 73.2% of respondents indulge in fantasy sports during the seasons, followed by 17.2% respondents daily, and 9.6% once a week. It might be a case of hand in glove between the fantasy sports and the events of the sports, as even the endorsement of the application increases during the most followed seasons, such as the Indian Premier League in India. During this period of the league, most of the fantasy applications become active in endorsements. It might be because the seasons will have a greater number of games and more options to invest in.

Cyberspace Innocence and Victimization: A Critical Study of Fantasy Sports  99 Table 5.4 Type of Sports most Interested in Sl no

Which sports do you follow the most

Responses

1

Cricket

211

2

Football

39

3

Any other specify

00

The query of which sports they follow the most was related to the previous question, as most of the respondents follow seasons or invest money season-wise. The current query was to enquire which game they follow, and an enormous number of respondents responded: 84.4% were cricket lovers, followed by football at 15.6%. As everyone is aware that India is a cricket-crazy nation, it was expected that cricket would be followed the most, and the results indicate the same. Whereas other sports, such as hockey, have no takers among the citizens, and it might also be the reason for the least number of fantasy applications pertaining to other sports. Table 5.5 Details on Preference of different Sports Seasons Sl no

Which season of sports do you follow the most

Responses

1

Indian Premier League (IPL)

147

2

T20 World cup

56

3

Caribbean Premier League (CPL)

13

4

Champions league/Football

15

2

Indian Super League (ISL)

19

3

Any other specify

00

As in the previous question, it was clear that most of the individuals follow cricket and football. The current question was to enquire which specific season they follow. In the current question, multiple answers from the respondents were allowed, and resultantly, it was found that the most famous fantasy season among citizens of Belagavi is the Indian Premier League (IPL) at 58.8%, followed by the T20 World Cup at 22.4%. Interestingly, the Caribbean Premier League is also followed in India, whereas in the football category, only the Champions League and the Indian Super League are followed. The above data indicates that most people invest in cricket-related fantasy sports in India. In this query, it is clear that the Indian Premier League in particular and cricket in general are the causes of the increased usage of fantasy applications, as most of the respondents follow and play cricket-related fantasy games. There might be a further increase in the usage of such applications as, across the globe, such leagues are being organized like The Hundred 100 and T10 League, etc. Table 5.6 Details of Amount of Money Spent on Fantasy Sports each Time Sl no

How much do you spend each time

Responses

1

100-500 INR

105

2

600-1000 INR

89

3

1000-1500 INR

31

4

1500 INR & above

25

100  Forensic Justice The query related to the amount of investment in fantasy sports revealed that 42% of respondents spent 100–500 INR each time they played fantasy sports, followed by 35.6% who spent 600–1000 each time, 12.4% who spent 1000–1500, and 10% who spent 1500 and above. Even though the amount invested by the respondents doesn’t seem much, if they continuously spend and lose each time they play fantasy sports, the later amount would be huge in numbers and the consequences would be difficult, as witnessed in the article in Times of India on March 27, 2022, when a soldier started being anxious whenever he didn’t invest in fantasy sports. His choices ranged from cricket, football, basketball, etc. Consequently, he lost 25 lakh. Table 5.7

Details of Approximate Amount of Money Spent on Fantasy Sports till date

Sl no

Till now an approximate amount spent

Responses

1

1000–5000 INR

78

2

6000–10000 INR

110

3

11000–15000 INR

43

4

15000 INR and above

19

When enquired pertaining to approximately how much they might have spent in fantasy applications, it was found that 31.2% of respondents have spent 1000–5000 INR, followed by 44% who spent 6000–10000 INR, 17.2% who have spent 11000–15000 INR, and 7.6% who have spent 15000 INR and above. Even though the amount is not higher, if they persist with investing, the amount may go up. Table 5.8

Details of Approximate Amount of Returns Received on Fantasy Sports till date

Sl no

Till now an approximate amount returned

Responses

1

1000–5000 INR

116

2

6000–10000 INR

79

3

11000–15000 INR

37

4

15000 INR and above

18

When enquiring about the approximate return from their investment, it is found that 46.4% of respondents have returns of 1000 to 5000 INR, followed by 31.6% whose returns are 6000 to 10000 INR, 14.8% claim that they have returns between 11000 and 15000 INR, and 7.2% claim that they have received more than 15000 INR. As most of the people have a return of 1000–5000 INR, it may have depended on their investment in each game, as more investment will give more reward or loss. Table 5.9 Sl no

Details of Approximate Amount of Money Lost on Fantasy Sports till date Till now an approximate loss if any

Responses

1

No loss occurred

90

2

1000–5000

98

3

6000–10000

32

4

11000–15000

23

5

15000 and above

07

Cyberspace Innocence and Victimization: A Critical Study of Fantasy Sports  101

When enquired about whether they are aware of their approximate losses, only 36% of respondents said they haven’t had any losses, while on the other side, all remaining respondents have experienced losses that range from 1000 to 15000 INR and above. Specifically, 39.2% of respondents have approximated losses of 1000–5000 INR, 12.8% have approximately lost 6000–10000 INR, 9.2% have approximately lost 11000–15000, and 2.8% have approximately lost 15000 and above. Even though the amount is not big, the thing to worry about is that if they continuously invest for a longer time, the losses could be higher in the future. As an article in Mirror now explains, an individual has lost 78 lakhs to online poker. The same could be the result if an individual continuously invests. Table 5.10 Impact on Family Income Sl no

Does it impact on your family income & expenditure

Responses

1

Yes

147

2

No

103

When enquired about whether investment in fantasy sports has any impact on their family expenditure and income, 58.8% of respondents agreed that it impacts their daily expenditure, while 41.2% said it doesn’t impact their family expenditure as the amount is not too big. 103 respondents have no effect or would not have suffered, but they may face trouble in later stages of their lives as all the respondents belonged to the age category of 18 to 30 years. Table 5.11 Details on Guilt Feeling from Loss Sl no

Do you feel guilty after the loss

Responses

1

Yes

176

2

No

74

When enquired about whether they feel guilty after the loss of an amount, 70.4% of respondents said that they feel guilty about investing if they lose their hard-earned money, whereas 29.6% said they won’t feel guilty. Those 70.4% who feel guilty after the loss might be from families that belong to average or poor income households; hence, they might feel such, whereas the 29.6% respondents might be from well-to-do families; hence, it might not have affected them, or it might be because they are too young to understand the effects of loss as the whole sample is between the age groups of 18 and 30 years of age. Table 5.12 Details on Feelings to Invest more Sl no

Do you feel to invest more often

Responses

1

Yes

196

2

No

54

When enquired about whether they feel the need to invest more often, 78.4% of respondents say they feel the need to invest, which if continuous, might lead to addiction among the users, as we have witnessed in the poker case where the individual lost 78 lakh and ultimately committed suicide, whereas 21.6% of respondents say they won’t feel the need to invest more often.

102  Forensic Justice Table 5.13 Feelings on Victimization Sl no

Ever felt like victimized

Responses

1

Yes

44

2

No

206

When enquired about whether they felt victimized merely, only 17.6% of respondents said they felt like they had been victimized, whereas 82.4% said they had not. It is a good sign for the 17.6% respondents that they feel that they have been victimized, as this feeling would reduce future investment of theirs, whereas the worrying fact is that 82.4% respondents don’t even feel they have been victimized, which clearly shows their innocence as well as being cause for concern in the future as it may lead to future victimization. Table 5.14

Details on Consideration of Fantasy Sports being Lottery or if it Promotes Lottery

Sl no

Do you consider it as lottery or promotes lottery

Responses

1

Yes

136

2

No

114

When asked whether they consider it a lottery or a sport that promotes it, 54.4% of respondents agreed that it is a form of lottery, whereas 45.6% don’t consider it a lottery. Table 5.15 Perspective about Banning Fantasy Sports Sl no

If yes, then do you consider it should be banned in line with lottery like in Karnataka

Responses

1

Yes

102

2

No

148

Interestingly, the result of the inquiry on whether the respondents consider that fantasy sports should be banned in line with the lottery in Karnataka was that they were not in favor of the ban; that is, 59.2% of respondents don’t want a ban on fantasy sports, whereas 40.8% are in favor of a ban. On the same line, the Karnataka High Court has struck down the provisions of the Karnataka Police (Amended) Act 2021, which criminalize fantasy sports, in the All India Gaming Federation vs. State of Karnataka case on February 14, 2022.

Conclusion Cyberspace has changed every aspect of human lives as it has made life easier, but on the other side, it has brought many negatives to human beings, such as addiction, less physical activity, and most importantly, increased crime rates. Many innocent people are falling prey to the tricks of offenders and have been victimized; hence, the current research is a simple attempt to understand how the innocence of victims leads to their victimization. Even though being involved in fantasy sports has resulted in the loss of money, many still believe that they shouldn’t be banned, which is due to the innocence of the participants, who have not been able to analyze the consequences of playing fantasy sports for a longer duration.

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By analyzing the above data and some previous research, the current research concludes that fantasy sports must be banned in line with the lottery and alcohol, as they are in some states, and that they may not have harsh and negative consequences in a society like other evils that were the cause of further crimes. If a ban is not possible, then at least it must be controlled through proper channels by enacting a suitable law and making fantasy sports a non-investment sport, playing for fun and enjoyment rather than money-making platforms.

References 1. Fisher Bonnie and Lab Steven (2010) Encyclopaedia of Victimology and Crime Prevention, Sage Publication, Volume 1, ISBN: 978-1-4129-6047-2 2. Gautam Hari Om (2011) Victims of Crime and the Law, Regal Publication, New Delhi ISBN 978-81-8484111-4 3. Halder Debarati (2022) Cyber Victimology Decoding Cyber-Crime Victimisation, Routledge Publication Taylor and Francis group New York ISBN: 978-1-4987-8489-4. 4. Wolfgang Merwin (1957) Victim Precipitated Criminal Homicide, Journal of Criminal Law and Criminology volume 48, Issue 1 5. Zhou Nan and Zhou Guangyu (2021) Covid-19 stress and addictive social media use( SMU): mediating role of active use and social media flow, retrieved on 01 September 2022 from https://www.frontiersin. org/articles/10.3389/fpsyt.2021.635546/full 6. Nower Lia, Caler Kyle, Pickering Dylan, and Blaszczynski Alex, (2018) Daily Fantasy sports players: Gambling addiction and mental health problems, Journal of Gambling Studies, Vol 34, page 727-737 Retrieved on 04 April 2023 from https://sci-hub.se/10.1007/s10899-018-9744-4 7. Gupta Agam, Khandelwal Yash, Singh Manish K. and Singla Ashutosh (2022) Do fantasy sports players’ actions influence their performance in Dream11 contests? Adding data to the debate on skill vs chance Retrieved on 06 April 2022 from https://papers.xkdr.org/papers/2022_Guptaetal_rpSkill_vs_chance.pdf 8. Nandan, Shrivastava Abhinav and Shekar Seshank (2021) Emerging from shadows: The evolving legal treatment of Fantasy sports in India Kamath, The international sports law journal volume 21, pages188–202, Retrieved on 06 April 2023 from https://link.springer.com/article/10.1007/s40318-02100190-2 9. Souvik Naha (2019) Flight of fantasy or reflections of passion? Knowledge, skill and fantasy cricket, Sports in Society: Culture, Commerce, Media, Politics, Taylor and Francis Routledge publication, Vol 24, Issue 8, Page 1322-1335, Retrieved on 07 April 2023 from https://sci-hub.se/https://doi.org/10.1080/17430437.20 19.1607012 10. Houghton David, Nowlin Edward and Walker Doug (2019) From Fantasy to Reality: The Role of Fantasy Sports in Sports Betting and Online Gambling, Journal of public policy and marketing, Vol 38, Issue 3, Page 333-353, Retrieved on 08 April 2023 from https://sci-hub.se/https://doi.org/10.1177/0743915619841365 11. Article related to Karnataka High court lifting the ban on fantasy sports under Karnataka police (amended) act 2021 retrieved from https://lawstreet.co/judiciary/karnataka-high-court-online-gaming-fantasysports/#:~:text=Judiciary-,Karnataka%20High%20Court%20Lifts%20Ban%20on%20Online,Huge%20 Relief%20for%20Fantasy%20Sports&text=The%20Karnataka%20High%20Court%20on,All%20 India%20Gaming%20Federation%20v on 31/08/2022 12. Article related to individual losing 78 lakh by playing Poker retrieved from https://www.timesnownews. com/mirror-now/in-focus/article/man-ends-life-after-losing-rs-78-lakh-in-online-poker-what-fuelsonline-gaming-addiction/500968 on 31/08/2022 13. Article related to how fantasy sports leads to addiction retrieved from https://timesofindia.indiatimes. com/india/how-fantasy-sports-apps-are-fuelling-gambling-addiction/articleshow/90455534.cms on 31/08/2022

104  Forensic Justice 14. An article on INTRODUCTION TO VICTIMOLOGY retrieved from https://www.sagepub.com/sites/ default/files/upmbinaries/70565_Daigle_Chapter_1.pdf on 01/09/2022 15. https://lawschoolnotes.wordpress.com/2016/10/04/a-brief-study-of-concepts-of-victimology-andrights-of-victims-under-indian-law/ retrieved on 26/08/2022 16. https://fanarena.com/fantasy-sports/ retrieved on 26/08/2022 17. https://sites.psu.edu/pfsports/what-are-fantasy-sports/ retrieved on 26/08/2022 18. https://online-tesis.com/en/the-universe-in-statistics/ retrieved on 06 April 2023 19. https://www.questionpro.com/blog/snowball-sampling/ retrieved on 06 April 2023 20. https://www.questionpro.com/blog/quantitative-research/ retrieved on 05 April 2023 21. https://www.questionpro.com/blog/exploratory-research/ retrieved on 05 April 2023 22. https://byjus.com/commerce/meaning-and-objective-of-tabulation/ retrieved on 05 April 2023

Chapter 6

Pinkwashing and Capitalism Among Youth Culture Sabrin Mariam Philip

Abstract: Pinkwashing is the practise of business organisations and companies claiming to promote queer rights while really embracing the cause to further their own financial interests. These capitalist entities frequently profit from the practise of portraying themselves as queer-friendly in order to get away with corruption that goes unreported when they wave pride banners with their brand logos displayed during pride rallies. Unfortunately, these organisations rarely take any action to assist queer populations with employment, workplace harassment, and other issues, instead choosing to maintain their public perception of progress and values. Years of intersecting oppressions and labels faced by the queer community were altered in less time by brands supporting them with colours of pride displayed after the Indian government decriminalised Section 377 IPC. This review focuses on the pinkwashing system in India and how capitalism is reaping profits using rainbow-hued banners. To analyse the prevalence of the pinkwashing system and brands that support queers for profit. This paper’s main goal is to address a gap in the scientific literature. Besides, the paper strengthens social movements to understand the concept and rights of the queer community. Finally, the paper provides a space for suggestions and discussions to improve the system rather than marketing. Keywords: Capitalism, Inequality, Marginalisation, Oppression, Profit, Queer community

Introduction The Preamble to the Constitution of India recognises its citizens without bias by alluding to them as “We the people of India.” It guarantees monetary, social, and political justice in all terms. But years of conflicts and violence were faced by various marginalised groups, among them the Queer community. It was the end of years of tyranny and differences. when the Supreme Court of India’s five-judge panel’s decision to partially invalidate Section 377 of the IPC’s harsh, callous, and cruel rules on September 6 was warmly embraced by the LGBTQIA+ community in India as well as by its allies and supporters. The law will no longer label community members as criminals and deviants. Eventually, the LGBTQ population in India will have the same legal protections and rights as every other citizen. Even if it might not immediately put an end to all sorts of prejudice that

106 Forensic Justice humanity faces, this is certainly a great place to start. Legal protection is the first step in making sure that a minority community has access to the same opportunities, advantages, and protections as the majority. The fundamental rights of even one person in the nation cannot be overturned by societal morality, as the former Chief Justice of India, Dipak Mishra, stated in his ruling. As the month of May winds down, the community observes the start of rainbow-washed advertisements and marketing. Various companies publicly declare their support for the LGBTQIA+ community while secretly taking steps that could damage people who identify as queer, known as rainbow washing. By presenting an inclusive image, brands can improve sales through this marketing strategy. In general, all these companies are literally following the trends of the pink economy to celebrate rather than helping a cause in the end. The main benefits for these companies are monetary with extras, as they have imposed a rainbow on the products. Rainbow washing used to be an interpersonal and transactional affair. This was done by specific companies in the 1990s. A research study stated that it focused on homosexual guys and how they preferred to exclusively buy products from companies like Levis. For these demographics, these brands sponsored advertisements. Because these firms were truly spending money to help the queer community, this was socially beneficial. At the time, they were funding efforts for both protective sex and the AIDS epidemic. In this case, pink washing was significant. Pinkwashing, also known as pink capitalism or rainbow capitalism, is the phrase used to describe how LGBTQ groups, most notably the Pride movement, are promoted and made political. The process of conservative capitalist businesses claiming to support LGBTQIA+ rights while co-opting the cause to serve their own financial interests is known as “pinkwashing.” These capitalist institutions frequently get away with damaging behaviour and pursue unregulated practises by portraying themselves as queer-friendly while they wave pride flags and show their trade logos at pride parades and rallies. It’s interesting to note that these institutions rarely, if ever, move to really support LGBT communities with regard to employment, workplace sexual harassment prevention, and other issues. Instead, they prioritise upholding their appearance of progressivism, tolerance, and liberalism. In the West, pinkwashing is already a major problem for LGBTQIA+ campaigners. Brands rush to show their support, especially around pride season, in an effort to benefit from the expanding purchasing power of the LGBTQIA+ community and increase sales while seeming to support pride. Clothing retailers like H&M, Urban Outfitters, Nike, and many more have been releasing limited-edition lines throughout Pride season in an effort to attract customers who identify with the community or who support it. With the repeal of Section 377’s cruel regulations and the homosexual rights movement in India gaining strength daily, there is a strong likelihood that Indian activists would soon be forced to confront this issue as well. Pink money or economy is a modern term used to describe the market phenomenon of including gays, lesbians, and/or people with other non-mainstream sexual identities in the market economy. Under this mix of capitalism, the market economy, and sexual orientation, people are categorised according to their sexual preferences and gender identities. LGBTQ consumer behaviour, regional enterprises, societal views, and other physical and intangible repercussions have undoubtedly been impacted by the emergence of pink capitalism in the market and other economic sectors. For example, the local vendors do not have a clear knowledge of the queer community and their preferences, and a lot of stereotypes surround them; therefore, businesses strategies to attract the queer community are less effective with the local entrepreneurs. In turn, if they had a clear idea and acceptance of the LGBTQ+ community, local traders would have flourished in their business as they sold the same items as in retail stores or expensive malls. Overall, the prominence of the pink economy can be attributed in part to the popularity of the LGBTQ social movement.

Pinkwashing and Capitalism Among Youth Culture 107

Since they have been denied basic rights and are one of the country’s marginalised communities, June is a crucial month for the LGBTQ+ community. On this day, they are especially acknowledged and recognised. Many Indians continue to demonstrate support and love for the community today, despite the fact that they still have a long way to go before their voices are heard and they are welcomed, from simple people to celebrities. It is a type of cause-related marketing in which businesses associate themselves with issues important to the LGBTQAI+ community by using rainbow colours or pride-related motifs to promote products to members of the community and its allies. You discover how crucial rainbow washing is to advertising campaigns as you become more confident in who you are and as you mature. The queer community notices their attempts to be openly visible about it and gets bothered by it. Some businesses that fund the destruction of queer communities employ toxic rainbow washing strategies on the internet. The pinkwashing movement gained a substantial boost after a 2009 attack on a Tel Aviv LGBT centre, resulting in a spike in advocacy and financial support for LGBT rights, especially in Jewish Israeli schools. The International Day Against Homophobia and Transphobia was celebrated in all schools, and the Ministry of Education required diversity education for teachers and other people who work with children. Additionally, it gave major money to Israeli LGBT organisations so they could develop queer-friendly curricula and instruct students. Despite being under the Ministry of Education’s cover, Palestinian schools were excluded from these initiatives. In simple terms, Palestinian homosexual and LGBT organisations are not taken into account in Israel’s allotment of funding for the LGBT community. It is the practise of using LGBT rights to draw attention away from injustices or acts of violence against other underprivileged groups. Queer and trans people’s lives, identities, and general wellbeing are disproportionately impacted by the capitalist financial system. Undoubtedly, many of us have seen how large corporations have begun to sell pride-related goods in recent years, such as apparel with rainbow accents and badges supporting queers. Products are flagrantly cleaned to appear welcoming and to highlight the businesses’ growth and tolerance in order to attract LGBTQ+ clients. Particularly for LGBTQ+ individuals, many people have seen its existence as a symbol of advancement and acceptance. Others, however, are dubious about how powerful corporations, mainstream media, and popular culture are currently capitalising on LGBTQ+ culture. Numerous businesses pinkwashing their goods has two effects: on the one hand, there is an increase in LGBT visibility and acceptance, and on the other, Pride parades are on the verge of being reduced to pink-coloured capitalism. Where one must pay to march, where local officials demand outrageous fees from Pride organisers, and where one is forced to purchase rainbow-branded items to reflect one’s sexual and gender identity. The LGBTQ+ community, allies of the LGBTQ+ community, and people who want to associate with diverse and inclusive brands will all benefit if corporate organisations and MNCs show their support through straightforward yet meaningful actions like using rainbow logos, posting on their social media handles, and so forth. The possibility of greater prominence for the LGBTQIA+ community in popular culture after the law’s repeal creates a new market for these capitalist institutions to exploit. It wasn’t a passionate statement of dedication to the cause that led Uber to change its route instructions to the colours of the rainbow; rather, it was a calculated marketing strategy where, in the circumstances, the benefits outweighed the dangers. A profit-driven mentality drives queer politics in corporate settings. While there are diversity and inclusion guidelines, their effectiveness cannot be maximised until comprehensive grievance redressal systems are implemented. The positions of organisations in

108  Forensic Justice relation to the broader LGBTQ movement must be reevaluated, and their ongoing conflicts must be systematically examined.

Background of the Pink Economy The decriminalisation of this antiquated Section 377 has given the Indian queer movement a greater sense of economic independence. The queer community has experienced a growth in work, particularly in self-employment and freelancing efforts, as a result of increased acceptability and exposure, at least in urban areas. There are three levels to the development of pink capitalism. The first was the covert underground phase, which operated under dictatorships in the form of gay organisations and print publications. Later came the phase of community building, which sparked communal liberation and sharply increased opposition. With the start of the next decade, we enter a phase that promotes the merging of cultural media and a number of subcultures, which is motivated by a variety of distinct but arbitrary objectives. The recent past of prides in India has been driven by anxieties about market forces and an elevated level of doubt among queer activists that genuine LGBT victory is unsustainable with the hegemony of business interests and a majority of pro-capitalist philosophical thought. Activists’ main worry is that these corporate initiatives are empty. They deal with LGBT concerns on the surface but neglect to address the underlying causes. The majority of initiatives present this problem as a cause for celebration rather than genuine social exclusion. The prevalent opinion is that what is needed is greater understanding and an approach that highlights the ongoing problems that the LGBTQ community faces instead of applauding an emotional triumph. There is still a very long way to go until there is equality for all communities, particularly in India. The LGBTQ community experiences discrimination at work, a disproportionately high rate of HIV infection, and a disproportionately high rate of poverty. Corporate advertising only targets the middle and upper classes in cities. Therefore, it is crucial to consider options that address the multitude of challenges and focus on how to be supportive without being exploitative. Major Indian corporations have led the charge in plans to promote LGBTQ+ acceptance. According to the Boston Consulting Group’s first-ever worldwide study of the way enterprises treat community members, more and more Indian businesses are implementing an inclusive, nondiscriminatory policy. This covers some of India’s well-known companies, such as Tata Steel, Mahindra & Mahindra, Godrej, and Reliance Industries. Ironically, these same businesses are allegedly also a significant source of funding and democratic ties for a political party that has frequently been under fire for its policies and laws that discriminate against the LGBTQ+ population. There is corruption outside of India as well. Businesses from all around the world that want to fly their flags in June provide money to politicians who are anti-gay and homophobic. Forbes reported in 2021 that nine of America’s wealthiest and most pro-queer enterprises contributed at least $1 million each to anti-gay candidates during the previous voting cycle.

Queer Marketing Strategies One of the main expressions of pink capitalism is marketing directed at LGBTQ individuals. Marketers are attempting to tailor their marketing campaigns, either entirely or partially, to this population, assuming that LGBTQ people represent their current or potential customers. They employ a variety of ways to accomplish this. Evident instances can be found in regional or international LGBTQ

Pinkwashing and Capitalism Among Youth Culture  109

publications and on various offline as well as online platforms, including Têtu and Shangay, both of which are significant gay periodicals in France and Spain, respectively. Travel, alcoholic drinks, entertainment, hair and skincare, luxury products, pharmaceuticals, and fashion are just a few of the key types of advertisements that are posted on such sites. Despite the fact that general campaigns can cause unexpected reactions from the LGBTQ public when the information (i.e., sexist or normative) in the ads may be inappropriate or offensive, it is an affordable option for companies that seek to show their special interest in the LGBTQ market.

Redesign marketing initiatives and include queer-related content Marketing efforts can establish a self-identifiable relationship with their clients by incorporating gay/ lesbian-friendly themes. In this kind of advertising category, it becomes typical to use queer symbols like rainbow hues, to fund LGBT organisations and events, or to feature queer couples in ads. For instance, when same-sex marriage was legalised in the US in 2006, a number of firms profited from the occasion by incorporating LGBTQ concepts into their advertising strategies. This not only demonstrated their appreciation for the LGBTQ community but also enhanced their customers’ perceptions of them as being queer-friendly.

Queer-specific products or campaigns Absolut is a globally acknowledged, 126-country alcohol spirits brand from Sweden. It has been a while since the firm began expressing interest in LGBTQ customers and viewing LGBTQ people as “trendsetters.” As part of the brand’s celebration of thirty years of the Rainbow Sign as a symbol of the queer cause, a special rainbow bottle choice was made. Therefore, we must try to avoid the flaws of pink communism in our approach. We are not favouring only one particular sort of sexual orientation or preference or creating new stigma about LGBTQ individuals. Rather, we are dealing with the reality of diversity equally, including being queer as part of an individual’s reality or preferences. The goal of businesses and government agencies is to create an environment that unites diverse organisations, grassroots movements, queer artists, NGOs, researchers, and other groups; a society where everyone has access to the competencies, information, and materials needed to affect change in society, with a particular emphasis on diversity, the empowerment of LGBTQ people, and women. A safe haven for all people on this globe The intention should be to challenge social norms and increase understanding of gender diversity. Pink capitalism has significant economic advantages for LGBTQ-specific business models as well as an opportunity for the socioeconomic integration of LGBTQ people in business and society. However, from a critical standpoint, it also fosters the development of new prejudices both inside and outside the LGBTQ community.

Pink Capitalism: A Critique Perspective from Queer Theory A critical viewpoint from queer theory is explored to better comprehend the phenomenon of pink capitalism because it is multidisciplinary and complicated. Pink capitalism is becoming more and more well-known as a socioeconomic phenomenon in Western nations that embrace LGBTQ people as well as in several Asian rising economies. China is following this path as well. According to 2020 projections, the so-called “pink economy” of the nation is currently valued at 300 billion US dollars annually, making it the third largest in the globe after that of Europe and the United States (the LGBTQ community is thought to spend more than $3 trillion annually globally).

110  Forensic Justice From an objective stance, LGBTQ activists and academicians like queer theorists are challenging its veracity and contentious effects. Queer theory has its roots in a number of post-structuralist theories that call into question categories and social rules (identities). The 1990 book “Gender Trouble: Feminism and the Subversion of Identity” by Judith Butler contains the fundamental ideas of queer theory. “Gender is the repeated stylization of the body, a set of repetitive acts within a highly rigid regulatory frame that solidify over time to produce the appearance of materiality, of a natural sort of being”. The theory underlines the performative aspect of genders in normative situations, which denatures and critiques the created gender norms of heterosexuality and homosexuality as well as the binarism of masculinity and femininity. From the lens of queer theory, pink capitalism is therefore understood as a normative game that reinforces the current unequal gender positioning and also develops new stereotypes of LGBTQ people. The capitalists use this circumstance to their advantage in order to achieve their objectives. Pinkwashing is the practise of business tycoons who publicly declare their support for queer groups while acting in a different way or providing little to no support for these communities in reality. Unintentional pinkwashing, which resembles a poorly implemented sustainability PR campaign, can happen. After all, it’s a positive thing to increase awareness of the issue facing the LGBTQ+ population. On the other hand, businesses draw criticism when they release comparable image advertisements while engaging in business that runs counter to those efforts, such as doing so in countries where homosexuality is illegal. Pinkwashing and the capitalism associated with it are a kind of crime against the queer community and stigmatise the community. Lesbian, gay, bisexual, transgender, queer, questioning, intersex, and asexual (LGBTQ+) people have unique experiences with crime, victimisation, and the criminal and juvenile justice systems, and queer criminology largely focuses on these topics, such as discrimination, harassment, safety, and the rights of the queer community. Many queer criminologists actively promote the equity and dignity of LGBT individuals as well as the allocation of funds to enhance their results. The market’s extensive infiltration of daily life has created a space for a commoditized queer existence that is focused on commercial inclusivity. Consumer society instead buys what commercials tell consumers to invest in, not what they really require. Consuming this object is a display of wealth, status, authority, etc. It is a symbol that all identities, including queer identities, are subject to an economic drive that requires that everything be a possible topic for purchase if consumerism is seen as a mode of operation. Commodification is a process through which an increasing number of things and experiences in the human world are transformed into goods for financial gain.

Pinkwashing Examples In previous years, automotive group Daimler, as part of its Mercedes-Benz Pride campaign, changed its Mercedes logo into a rainbow-coloured one. This wasn’t much appreciated by the LGBTQ+ community. Some users agreed with the visual statement, but others believed that the logo change was solely symbolic and that the message of the statement was incompatible with Daimler’s actual actions. It was also questioned because the colour of the logo was not modified in Middle Eastern countries. When H&M and Levi’s debuted unique, vibrant clothing as part of their “Pride Collections” a few years ago to promote solidarity with those who identify as sexually oriented, they also grabbed the news. However, they received harsh criticism for producing the clothes in Bangladesh and India, two nations where homosexuality is still against the law.

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It is very similar in the Indian scenario,incorporating a rainbow in the trademarks, which will be valuable to businesses. Companies only demonstrate their support for the LGBTQIA+ community when it is convenient and adds value to their marketing. Additionally, they act queer-friendly merely to increase sales; if they genuinely cared about the oppressed minority, they would make their workplace more inclusive and queer-friendly. Pinkwashing is similar to copying in films in that it appears to effect change while actually capturing a market that was previously untapped.

Lessons from pink economy examples Most people believe it is unethical to profess to be fair while routinely failing to do so. Exaggerated and stereotypical representations of those who identify as differently oriented can also cause outrage. To demonstrate solidarity with the LGBTQ community, marketers must be sensitive while creating advertisements. It is a very delicate issue that has to be handled with caution. Fundamentally, none of these significant businesses supports the LGBTQIA+ community. They are not rebels who seek to bring about systemic change and create a society that is better, more diverse, and kinder. The nation’s socially conscious youth have shown tremendous support for the partial repeal of Section 377, and many businesses are just hopping on the rainbow-coloured waggon in the hopes of generating more money. Many assert that the fact that brands are publicly endorsing LGBTQIA+ rights is positive for the movement and that the queer rights movement requires the support of strong corporations that can use their influence to persuade different segments of society and perhaps reduce homophobia through rallies that deliver strong messages. However, the message being conveyed is erroneous and has its roots in consumer politics. Brands like Uber and Zomato invest a lot of money in marketing to their customer base, which is primarily made up of urban young people with access to technology who are more likely to reward a business that presents itself as more progressive and socially conscious than rivals. They are completely aware of our desires, which are to feel significant and like we are a part of an uprising while drinking expensive coffee from disposable mugs. Let’s not lose sight of the fact that while they may be speaking out against significant social injustices, doing so benefits them financially. The caste, gender, racial, religious, and economic class issues that are connected to those linked to their sexual orientation are completely erased when the problems facing the community are hijacked in this way. It produces a deceptive impression of advertised inclusion that seems to be within everyone’s grasp but is actually quite out of reach. For instance, McDonald’s wants us to know that they support LGBT people in the UK. Nevertheless, they are excited to open restaurants in Pakistan, where homosexuality carries a death by stoning sentence. At London’s Pride celebrations, enterprises like HSBC and Barclays sponsor sizable parades. They both make large investments in Saudi Arabia, where the government violently targets and kills LGBT people. This deceit is a natural outcome of a profit-driven economy; it was not done on purpose. The truth is that corporate pinkwashing does little to support LGBT people. Despite all the rainbow-themed logos and goods, discrimination against the LGBT community still exists. This discrimination and hatred are caused by class difficulties, which are the responsibility of the bourgeoisie and its politicians, and are made worse by homophobia. All the rainbow-themed logos in the world won’t be able to fix these issues, which are ultimately a result of materialism.

Pink Market: Boon or Bane The Pride logo has been used in almost all marketing and advertising initiatives. For instance, prominent companies consistently raise their sales of products with rainbow themes in June. All of a

112  Forensic Justice sudden, everyone is sporting rainbow-themed clothing, drinking from rainbow-themed mugs, and blogging about rainbow-themed products made by foreign businesses. In order to draw attention from the general public and potential clients from the vicinity, many stores frequently schedule significant “The pride sales.” Despite the fact that everything may appear to be motivated by noble intentions, the truth is more complicated. Pink capitalism, like all other kinds of capitalism, is inherently exploitative since companies put significantly less effort into showing that they support the LGBTQ+ community than they do into gaining it. Not to mention that after Pride month is over, the majority of this display of support disappears. In the end, these brands and businesses don’t do anything to promote the diversity, equality, and tolerance they preach. They neglect to devote time and resources to learning about and combating the injustice that the queer community still endures. Positive representations of the queer community in commercials and corporate ads are a visual delight. There is little doubt that having oppressed people’s experiences and expressions represented on enormous posters and screens has a powerful symbolic influence. Their significance could be flimsy or even illusory if the representation is not backed by true company commitments to LGBTQ+ rights and gender equality at work. The income, contracts, and rights of the most precarious and exploited workers—many of whom, according to LGBTQ+ rights data, are queer, trans, and/or people of colour—should be improved, and more queer individuals should be elevated to top positions. Pink capitalism will continue to be a fake concept that only serves to exploit queer people until these actions are performed. We must keep in mind that queer emancipation cannot be achieved through consumption. Numerous societal systems and customs impose and limit our perceptions of gender and sexuality. A growing understanding of how different sexualities are assumed and anticipated, as well as the fact that the gender binary is not inflexible but is instead imposed through gendered norms and customs, has occurred, particularly in queer spaces. But just because these structures are acknowledged doesn’t mean they disappear. Negotiating them is a necessity because they are maintained through social interactions and the way individuals are supposed to move in public areas. It takes time, knowledge, and ongoing awareness to learn to reject them. To some extent, the popularity of the LGBTQ social movement has given rise to knowledge of pink capitalism or the economy and the exploitation occurring behind the system that goes unidentified by the queer community and upcoming youths of the country. Rainbow capitalism has gained more attention, but activists in India and other places have voiced concern that the profit motive does not advance rights or raise awareness of the structural, institutional, and socioeconomic problems that the community continues to face, particularly in a developing nation like India. However, there is still an extremely low percentage of LGBTQIA+ workforce engagement at Indian businesses. According to an Accenture study, 79% of LGBTQIA+ employees in India stated that declaring their sexual orientation and expressing their gender have slowed down their professional progress. In the larger context, these firms have never advocated for LGBTQ rights until this point, and most of them neither employ nor have established policies for queer people. While these efforts are a step in the right direction, activists and analysts are quick to note that businesses, industries, and society at large must step up to support the cause beyond sales and advertising efforts all year long. Queer individuals should be viewed as human beings by humanity. Examine their skills and what they can offer your business instead of staging marches and flying pride flags for the moment. Pinkwashing may seem like a positive development. The desire of some economic entities to placate

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particular oppressed communities is evidence of how society as a whole has become more receptive to progressive views.

Discussions People need to be careful not to get carried away by such minor activity; while having a rainbowcoloured brand logo is a great way to show solidarity, how effective is it at fostering real growth and change? Business companies are more interested in rushing to make meaningless gestures that are temporary. All of these associations and companies basically just signify that they are happy to take advantage of the queer community’s struggles while doing little to truly reduce the problems they confront. In India, LGBT people have become more visible and accepted in urban areas over the past decade. As a result, there are more employment opportunities available, particularly in independent employment. As a result, pink money increased across the nation. And the market economy unintentionally seeks out methods to turn a profit wherever there are potential customers. Because of the emergence of pink capitalism, the LGBTQ+ community’s increased consumption expenses contribution to India’s GDP is now anticipated to range between 0.4 and 1.6 percent. We can skip the part where we treat LGBTQIA+ people as unique or even introduce them as “this is my homosexual best friend.” And perhaps develop an atmosphere where they do not feel pressured to sow enmity and confusion. A large review of papers found that the name of the queer community is being used for the purposes of capitalism rather than genuinely showing support and encouraging them. Therefore, rather than considering them equal and one among us in the name of revenue, we highlight them as different from us. So instead of selling them in the name of equality, the LGBTQ+ community needs to be uplifted and recognised as one among us. The Stonewall riots, which gave birth to Pride, began as a protest against the police and the overall repression of the capitalist state. Since then, the ruling class has co-opted Pride to create a progressive fig leaf for its otherwise wholly retrograde agenda—a cheap, charming mask disguising the ugly face of business. As a consequence, we must reclaim Pride’s fighting past as an objection, not a pinkwashing opportunity for our exploiters. As capitalism’s crisis worsens, people oppressed and exploited by this savage system—LGBT and otherwise—will undoubtedly face new attacks from the Tories and the bosses. Workers and youth must unite on a class basis to fight back and eradicate all injustice and inequality through mass agitation and militant action. Here, our movement must go much further than Stonewall, striving to eradicate all forms of oppression once and for all by overthrowing the evil capitalist system. The LGBTQIA+ community must have access to a secure and welcoming workplace, according to corporate companies. During their working lives, people work about 35% of the time they are awake. As a result, creating a workplace culture that values individual identity and decency is a responsibility that, if disregarded, could cause extremely terrible experiences for many LGBTQIA+ community members. As a result, a company’s LGBTQIA+ friendliness should not be judged by its prowess in social media marketing but rather by how it treats its own staff, its policies, and its level of dedication to genuinely constructing a more inclusive society. Let’s not let the bright hues blind us to the gloom that lies beneath. Most importantly, change happens at the ground level, which is when we are children. Impart knowledge of sex education and different gender identities in school itself. Clear the queries of young minds when they are young, and that would change their approach to society and the conventional

114  Forensic Justice norms and stereotypes that surround them. As the quote states, children or youth are the future of the country. Do not promote or endorse brands that are faux promoters of queer communities. Youths easily fall for brands and are direct revenue sources for the companies. Clear awareness among society and the queer community regarding their rights and exploitation by the government in their names needs to be ensured. As per the 1948 Universal Declaration of Universal Human Rights, “All human beings are born free and equal in dignity and rights.” Understanding of constitutional values by citizens should be guaranteed and strictly penalised if violated. Although the heterosexual community supports us, there are still some uninformed people who might become aware of pride entering the mainstream commodity market and acknowledge it. And rather than chastising companies for exploiting the spectrum of colours, we could ask them to make it happen and provide employment for the queers. LGBT employees are more than twice as likely to experience bullying as straight employees, and they are far from working in environments that are safe and inviting. The binary washrooms and stringent dress standards, together with the fact that most of them keep their identities hidden even when employed, all contribute to the eradication of these identities in public places. There isn’t a strict corporate policy against harassment based on one’s gender identity and sexual preference. It is also important to remember that some who argued before the Supreme Court in 2013 against India’s legalisation of homosexuality said that the LGBT movement was a corporate plot to undermine traditional values in order to advertise to wealthy queer consumers. Furthermore, this kind of “rainbow capitalism” utterly excludes India’s impoverished and rural areas, who do not buy the goods that these businesses produce. In remote places, covert honour killings are planned such that a young queer individual can only escape to a city within the night while being left without any resources or social support. Lesbian women are frequently the victims of family-sanctioned corrective rapes that are committed by their own families in other regions. While there are establishments in the city that cater exclusively to the neighbourhood, they are primarily for the wealthy. If an individual cheerfully accepts equal rights inside the capitalist state while aiming for a proper family life, they become prominent as queer in this context of commodification, especially during Pride month. Queer experiences are recast through subjective and historical viewpoints in order to support assimilationist queer politics. This reveals the abuse of the ineffective marginalised group, which is still subjected to culturally and legally sanctioned violence. The goal was clear: establish a new sexual democratic system, battle against neuronormativity, capitalism, race, gender, and patriarchy, and envisage a nation without repression and dominance. These concepts were groundbreaking at the time, and they still are. A person’s right to exercise their identity cannot be limited to wealthy individuals. Being queer is a lot more than an approach to life, even though industries that promote queer identities are essential, especially given the way economic culture and gender behaviour are connected. When it comes to redefining the roles and views of families, TV and movies could turn out to be the most effective tools because they are accessible to even rural populations where the use of social media has not yet made a significant impact. This is because these media offer instances and projects that not only educate and enlighten but also relay LGBT experiences in authentic and varied voices. The fact that academic institutions have started to embrace institutionally sanctioned LGBT activism is positive.

Methodology A review of multiple publications was conducted related to the crude system of pinkwashing and the ongoing commercialism in India in the name of Queer support. The review was done as per

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the Preferred Reporting Items for Systematic Reviews and Meta-Analysis (PRISMA-P) guidelines. Systematic analysis was conducted to investigate and know the new concept of pinkwashing and capitalism in its name in the Indian context. A total of 40 studies were evaluated and studied, considering both national and international papers. The inclusion criteria were all publications referring to the queer community, the pinkwashing system, its prevalence in India, and the proceeding capitalism. The exclusion criteria were that studies related to other gender communities other than the mentioned or proposed community were excluded, and data and articles written in other languages other than English or from other countries were not considered. After the initial screening of the papers, a few studies did not clearly meet the criteria and were therefore not included. Whereas some studies were discarded as the full text was not available. In addition, some studies were taken from citations but not reviewed as they did not meet the inclusion criteria. Eligible full texts that met all criteria and protocols were preferred, checked for consistency, and used in the review. Grey literature is also included to avert publication bias and improve understanding of the subject matter. There was no primary data collected. All secondary data collected was analysed, and research protocols and ethics have been followed. There are no ethical risks to be considered.

Suggestions • Creating spaces for queers. • Building communities is an essential step in ensuring the success of queer-themed cultural projects since it is the only way for projects to develop in a sustainable fashion. • It is necessary that we, as cultural managers, critically consider this economic reality. Additionally, a self-reflection on the role of cultural managers is necessary. It is our duty to establish creative programmes and indicate alternatives that support the fight against LGBTQ discrimination and societal judgement. To do this, it’s crucial to think about how to engage the LGBTQ community with the arts and how to make gay professionals more visible in the field. • It is successful in offering a community-based place with an array of amenities to queer creative professionals. • A growing number of open-minded youth, expats, and LGBTQ activists have been crucial in the process of making sociocultural change, though it takes courage, time, and patience. On the one hand, the traditional, social, and political climate hinders gender equality and emerging innovative cultural environments, posing barriers to the visibility of the queer community.

Conclusion Pink Capitalism is a subset of the market economy that embraces LGBTQ individuals as present or potential customers. This rainbow economy has the ability to socially and economically integrate LGBTQ individuals into both the economy and society and also offer major financial benefits for LGBTQ-specific company models. However, it also encourages the growth of new prejudices and preconceptions both within and outside the LGBTQ community, which is problematic. It is important that we, as social personnel, critically consider this economic reality. Additionally, an examination of the role played by cultural leaders is essential. It is our duty to establish cultural efforts and propose alternatives that support the fight against LGBTQ bigotry and social exclusion. Every year, when Pride month approaches, businessmen and their representatives excitedly make a point to demonstrate their staunch support for the queer community. Moreover, this cycle never ends.

116  Forensic Justice Pride parades can be plenty of a spectacle and a way to celebrate the queer community’s triumphs to date, but it’s also important to keep in mind that for many queer people, life is anything but a celebration on a daily basis. Instead of symbolic events and commerce during Pride Month, we need to emphasise the real impact of pride and the distance traversed. Every June, an astounding variety of VIBGYOR stuff floods our social media feed. Being a liberal country now involves protecting LGBTQ rights. A country must acknowledge the rights of the LGBTQ community in order to assert its modernity. So far, so good, but racist language promotes the idea that the rights to live in dignity of the queer population are in competition with or in conflict with other groups. Therefore, it’s our duty as citizens of the country to advocate for and encourage the queer people of the country, which enhances and makes the country uphold the constitution proudly. Eliminate the era of capitalism in the queer community. It’s also the duty of queer theorists and criminologists to ensemble and work in the budding discipline of queer criminology to learn more and report the crimes that are mutating in the queer community.

Acknowledgement I extend my profound thanks to the Almighty above, who blessed me with the intellectual ability to complete my study successfully. I am thankful to the editors and authors of the book Forensic Justice: An International Perspective, published by the National Forensic Sciences University, for this great opportunity to be part of this book. My heartfelt and sincere gratitude to my mentor, Dr. P.G. Sunanda Bhagavathy, for her inclusive guidance and enduring support towards my area of research interest I express my love and regards to my parents, who have always positively uplifted me to move forward and to believe in myself, as well as been my personal critics. Finally, yet importantly, I am very glad and thankful for all the moral and emotional support I received from my friends, without which it would not have been possible for me to complete this chapter and submit it on time.

References 1. Aguileta, Fernando. n.d. “What Is “Pink-Washing” and How to Avoid It in Your Fashion Marketing Strategy.” ELLE Education. Accessed May 26, 2023. https://elle.education/en/business/what-is-pinkwashing-and-how-to-avoid-it-in-your-fashion-marketing-strategy/. 2. Bhattacharya, Abhik. 2019. “Have Homonationalism and Pinkwashing come to India? ” NewsClick. https://www.newsclick.in/Homonationalism-Pinkwashing-India. 3. “Corporate Pinkwashing: Is A Rainbow All It Takes?” 2020. She The People. https://www.shethepeople.tv/ home-top-video/corporate-pinkwashing-is-a-rainbow-all-it-takes/. 4. Cortés, Michelle S., and Alexandra Polk. 2021. “What Is Rainbow Capitalism? How Companies Exploit Pride.” Refinery29. https://www.refinery29.com/en-us/2021/06/10509012/rainbow-capitalismexplained-memes. 5. Dahl, Stephan. 2014. “The rise of pride marketing and the curse of ‘pink washing.’” The Conversation. https://theconversation.com/the-rise-of-pride-marketing-and-the-curse-of-pink-washing-30925. 6. Davies, Diana, and Marsha P. Johnson. 2021. “Queer Liberation: Politics of Rainbow Capitalism and Commodity Culture – Anamitra Bora.” Doing Sociology. https://doingsociology.org/2021/09/04/queerliberation-politics-of-rainbow-capitalism-and-commodity-culture-anamitra-bora/.

Pinkwashing and Capitalism Among Youth Culture  117 7. Ewering, Vrinda G. 2021. “Rainbow capitalism: Queer advertising in India.” researchgate. 357367355_ Rainbow_capitalism_Queer_advertising_in_India_by_Vrinda_Ewering_Affiliated_with_the_Institute_ of_Psychology_and_Education_and_Literature_Universite_de_Neuchatel. 8. “The False Link Between Article 370 and Queer Rights.” 2019. The Wire. https://thewire.in/lgbtqia/allyou-need-to-know-about-the-false-link-between-article-370-and-queer-rights. 9. Förster, Fleur. 2022. “Pinkwashing examples that you need to know about.” DMEXCO. https://dmexco. com/stories/pinkwashing-examples-that-you-need-to-know-about/. 10. Gupta, Dyuti. 2021. “Today I Learned: Pink Capitalism And How It Is Doing More Harm Than Good.” SheThePeople. https://www.shethepeople.tv/home-top-video/pink-capitalism-harms-lgbt-community/. 11. Ishani, Shreya. n.d. “Pink Washing and Rainbow Capitalism: Woke Corporates in the age of Social Media.” Shreya Ishani. Accessed May 26, 2023. https://shreyaishani7.medium.com/pink-washing-and-rainbowcapitalism-woke-corporates-in-the-age-of-social-media-242ab096f010. 12. Johny, Ritu M. 2022. “BuzzFix: Pride and Rainbow - The Blurred Intersection of Capitalism, Allyship.” News18. https://www.news18.com/news/buzz/pride-month-rainbow-washing-capitalism-lgbtqallyship-5344363.html. 13. Kapoor, Anahita. 2020. “Market Trends and Trepidations: A study on Rainbow Capitalism in India.” International Journal of Social Science and Economic Research 5, no. 5 (May): 7. : 10.46609/IJSSER.2020. v05i05.018. 14. Lenning, Emily, and Carrie L. Buist. 2022. Queer Criminology. N.p.: Routledge. 15. Malik, Sukhmani. 2022. “Sukhmani Malik writes: A month of Pinkwashing.” The Indian Express, June 17, 2022. https://indianexpress.com/article/opinion/columns/a-month-of-pinkwashing-7975895/. 16. Outlook India. 2023. “Pride Beyond June: The Complexity of Rainbow Capitalism And Corporate Allyship.” May 29, 2023.https://www.outlookindia.com/national/pride-beyond-june-the-complexity-ofrainbow-capitalism-and-corporate-allyship-news-290182. 17. Palaskar, Gargi, and Namrata Gupta. n.d. “Pink Capitalism | PDF | Lgbt Community | Capitalism.” Scribd. Accessed May 26, 2023. https://www.scribd.com/document/516966636/Pink-Capitalism#. 18. “Pastel Injustice: The Corporate Use of Pinkwashing for Profit.” n.d. Northeastern University. Accessed May 26, 2023. https://web.northeastern.edu/nejrc/wp-content/uploads/2017/02/Pastel-Injustice_ LubitowandDavis_EJ-20112.pdf 19. “Pink Washing by MNCs during Pride Month.” 2019. The Quint. https://www.thequint.com/voices/blogs/ pink-washing-during-pride-month#read-more. 20. “Pinkwashing is a cowardly move on a brand’s part: Sushant Divgikar.” 2023. Campaign India. https:// www.campaignindia.in/article/pinkwashing-is-a-cowardly-move-on-a-brand8217s-part-sushantdivgikar/482671. 21. “The Progressive Disillusionment of Pink Capitalism - IJLMH.” n.d. International Journal of Law Management & Humanities. Accessed May 26, 2023.https://www.ijlmh.com/paper/the-progressivedisillusionment-of-pink-capitalism/. 22. “Queer Theory: Definition, History, and Impact - 2023 - MasterClass.” 2022. Masterclass. https://www. masterclass.com/articles/queer-theory. 23. “Rainbow logos and corporate pinkwashing: Kick capitalism out of Pride!” 2022. Marxist Student Federation. https://marxiststudent.com/rainbow-logos-and-corporate-pinkwashing-kick-capitalismout-of-pride/. 24. Sharma, Luv. 2022. “A month of Pinkwashing-ForumIAS.” ForumIAS Blog. https://blog.forumias.com/amonth-of-pinkwashing/. 25. “Social Cause Marketing (Pink Capitalism) and its impact on consumers’ brand preferences.” n.d. IJARIIT. Accessed May 26, 2023. https://www.ijariit.com/manuscripts/v7i4/V7I4-1276.pdf. 26. Yeh, Lorenzo, and Junzuan Ye. n.d. “Pink Capitalism: - Perspectives and Implications for Cultural Management.” UB. Accessed May 22, 2023. https://www.ub.edu/cultural/wp-content/uploads/2018/03/ Ensayo-personal_Prospectiva-ii_Lorenzo_JunzuanYe.pdf.

Section II Forensic Justice and Law

Chapter 7

Redefining Justice: The Transmutation via Tenets of Forensics Purvi Pokhariyal, Gaurav Jadhav and Deepa Dubey

Abstract: The advent of science and technology has shaped the contours of crime, criminals, and criminality, thereby changing the horizons of the criminal justice system unprecedentedly. Colloquially, rendering justice in the form of meticulous conviction underscores the efficiency of the criminal procedure. To that effect, robust collection and processing of the evidence through forensics have significantly impacted criminal investigation in India; however, the admissibility and scrutiny of forensic evidence by the judiciary require a deeper understanding of the underpinning principles of forensic justice. This chapter intrinsically encapsulates the fundamental tenets that form the foundation of forensic justice, examining their significance in the context of criminal proceedings. Through a comparative and philosophical perspective, it explores the underlying principles that guide the collection, analysis, and presentation of forensic evidence. By drawing insights from various legal systems, the chapter highlights the need for consistent judicial interpretation and understanding of forensic justice. Furthermore, this work addresses the challenges associated with incorporating forensic evidence into the criminal justice system. By investigating the philosophical dimensions of forensic justice, this chapter aims to enhance our understanding of the role of forensic evidence in the pursuit of justice. The comparative study presented in this chapter offers valuable insights into the diverse approaches and practices of forensic justice across jurisdictions. Examining the similarities and differences in how forensic evidence is treated and evaluated facilitates a broader understanding of the principles that underpin the admissibility and reliability of such evidence. This comparative perspective sheds light on challenges, ultimately contributing to the advancement of forensic justice principles in India and beyond. This chapter aims to provide a comprehensive analysis of the underpinning principles of forensic justice and also reckons with the subtle ethos of scientific and forensic literacy. It enumerates the challenges of imbibing justice through flawless, prompt, and incisive delivery of justice through forensic means. To concretize forensic justice in India, understanding its underpinning tenets infused within criminal investigation is absolutely imperative. Keywords: Forensic justice, Tenants, Evidence, Daubert standard , Admissibility of evidence, Law of analysis

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Introduction The connotation “Justice” insinuates a profound moral principle that resonates with the human experience and the complexities of societal dynamics. It embodies the lofty ideals of fairness, impartiality, and equity, casting a deep shadow that touches every aspect of human existence. It stands as a beacon, guiding our interactions and shaping the allocation of resources and opportunities within the intricate fabric of society. At its core, justice demands that each individual be accorded their rightful due, shielded from the capricious winds of prejudice or favoritism. Justice calls upon us to cast aside the heavy shackles of discrimination, ensuring that no one is marginalized (not even the offender) or denied their inherent right to a fair trial. In its pursuit, Justice engages all stakeholders in the weighty task of reconciling interests to navigate the intricacies of the dialectics of Law and Science, thus compels us to interweave the fabric of justice with Forensic Science. (Shelton and Donald E., n.d.) The term “forensic” refers to the application of scientific knowledge and technique in the investigation and analysis of evidence to ensure the efficacy of the criminal justice system. Eventually, justice interlaced with the domain of forensic science, forging the concept of forensic justice—a renewed perspective that combines the fields of forensics and justice. In this fresh outlook on forensic justice, the application of scientific knowledge and techniques within the criminal justice system gains increased significance. The pursuit of justice becomes robust and precise by leveraging forensic expertise. The fusion of forensic science and justice aims to strengthen the investigation and analysis of evidence, bolstering the credibility and effectiveness of legal proceedings. (Roach 2009) “Forensic justice”, entrenched in the notions of fairness and equity, aligns harmoniously with the core principles of egalitarianism and the law of Evidence. Forensic Justice demands consistent adherence to laws, which can ensure greater accountability on the part of the criminal justice administration by adopting forensic methodologies. Furthermore, the integration of forensic science and justice compels us to confront historical injustices, dismantle entrenched biases, and foster inclusivity in society. It calls for a comprehensive examination of past wrongs, employing forensic analysis tools to shed light on unresolved cases or re-evaluate convictions. This process gives rise to a renewed perspective on forensic justice, one that prioritizes the rectification of injustices and promotes empathy, compassion, and equality. Forensic justice, unbeknownst to many, is a concept at a very nascent stage and is evolving, which emphasizes the indispensable role of forensic science in upholding the principles of justice. By intertwining these disciplines, a symbiotic relationship is forged between science and justice; nevertheless, a thorough understanding of the concept necessitates an appreciation of the underlying principles of Forensics. (Renaud et al., 2021)

Overview of the Paradigm Shift in the Criminal Justice System Due to Zcience and Technology The justice system is in the midst of a major transformation, driven by scientific and technological breakthroughs. This paradigm shift has radically transformed the way crimes are investigated, evidence is analyzed, and justice is delivered. From the integration of forensic science techniques to the adoption of cutting-edge technologies, the paradigm shift is reshaping the landscape of the criminal justice system. Nowadays, forensic science can be seen as the cornerstone of Criminal Investigation. DNA analysis, fingerprinting, ballistics, and toxicology have significantly improved the accuracy and reliability of evidence analysis. These advancements have not only helped in the

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expedition of criminal investigations but have also led to the exoneration of wrongfully convicted individuals. (Klingele, Scott, and Dickey, n.d.) Along with the traditional forensic techniques, the new frontier of forensics, digital forensics, is also paving the way for effective and reliable investigation in the age of digitalization. (Renaud et al., 2021) The paradigm shift in the criminal justice system also raises ethical considerations and challenges. Protecting privacy rights, ensuring data integrity, managing biases in algorithms and forensic techniques, and addressing the digital divide are crucial aspects that need careful attention. Ethical guidelines and regulations are necessary to maintain transparency, accountability, and fairness in the use of science and technology. As technology continues to evolve at a rapid pace, the future of the criminal justice system holds both opportunities and challenges. (Cooper, n.d.) Anticipated advancements, such as improved data analytics, blockchain technology, and enhanced forensic techniques, have the potential to further transform the investigation and adjudication processes. However, it is imperative to strike a balance between technological advancements and safeguarding fundamental principles of justice. The paradigm shift in the criminal justice system driven by science and technology has transformed the investigation, analysis, and delivery of justice. Advancements in forensic science, the integration of technology, the rise of digital forensics, and the implementation of automation have revolutionized the field. However, ethical considerations and challenges must be addressed to ensure the responsible and equitable use of science and technology in the pursuit of justice. (Costa and Santos 2019) By understanding these shifts and their implications, stakeholders can effectively navigate the evolving landscape of the criminal justice system and foster a fair and effective system for all.

Importance of forensic evidence in rendering efficient criminal procedures The task of appraising the treatment of forensic evidence in the criminal justice system and setting out recommendations for reform requires first defining the term “forensic evidence.” On its face, forensic evidence means evidence derived from the use of a field of science or the scientific method in order to investigate and prove crimes. Forensics, often referred to as ‘criminalistics’, does have its own shape in changing the contours of the criminal justice system. Colloquially, the renaissance of science and technology has immensely changed the traditional methods of collection of evidence, and to that effect, the detection of criminals has now largely become a techno-based affair. This impact of science and technological advancements requires due consideration in terms of mapping the efficiency of forensic evidence to the touchstone of the law of evidence.

The Significance of understanding the underpinning principles of forensic justice Forensic justice, an intricate tapestry interweaving scientific methodologies, legal principles, and ethical considerations, strives relentlessly to ensure equity and efficacy in the realm of justice administration. At the heart of this multifaceted concept lies the art of accurately deciphering and harnessing the power of forensic evidence—an enigma that demands profound comprehension and unwavering mastery. Brace yourself as we embark on a captivating exploration of the profound significance that lies in unraveling principles beneath the veneer of forensic justice. Underlying principles of forensic justice emerge as an indispensable key to unlocking the doors of admissibility within the hallowed halls of justice, necessitating a profound understanding of the scientific methodologies, meticulous protocols, and inherent limitations enveloping the realm of forensic

124  Forensic Justice evidence. Only by embracing these foundational principles can the legal luminaries deftly advocate for the admissibility of forensic evidence, weaving a compelling argument that resonates within the understanding of justice. (Edmond and Roach, 2011) Within the confines of the courtroom, the profound grip of forensic justice empowers legal sentinels to orchestrate the coherence of crossexamination as they probe the depths of expertise nestled within forensic experts. Armed with the knowledge of scientific techniques, the entangled intricacies of evidence reliability, and the perils of potential bias, advocates wield their intellectual prowess to neatly challenge the very fabric of forensic evidence. (Shelton and Donald E., n.d.) In this situation, their understanding fuels the fires of critical analysis, laying bare the truth and casting a discerning light upon any hidden fallacies of the criminal justice system. However, comprehending the foundations of forensic justice extends far beyond the courtroom. It unfolds as a collaborative symphony, uniting forensic experts and legal professionals in a harmonious alliance. This synergy, fuelled by mutual understanding, allows for a remarkable interpretation and presentation of forensic evidence to captivate the audience of justice. Equipped with scientific knowledge, legal practitioners navigate the intricate realm of forensic science, bridging the gap between understanding and transforming complex concepts. Together, their collective efforts amplify the impact of forensic evidence in the facilitation of justice. With every step forward in understanding the underpinnings of forensic justice, a bastion against misinterpretation and manipulation of evidence emerges. The ardent pursuit of comprehending scientific methodologies, the tempting boundaries of limitations, and the spirit of bias lurking within forensic techniques fortify the guardians of justice against the malevolent forces of falsehood and deceit. Armed with unwavering adherence to rigorous scientific standards and ethical guidelines, the legal luminaries stand as vanguards, safeguarding the sanctity and purity of forensic evidence. In their resolute quest, they traverse the treacherous paths of scrutiny, upholding the integrity of justice and warding off lurking wrongful convictions. (Baechler et al. 2020) Beyond the pursuit of justice lies a realm where the foundations of forensic justice intertwine with ethical questions pertaining to forensic evidence. Legal practitioners, equipped with a deep understanding of the foundational principles, engage in a delicate interplay of integrity and morality. They meticulously assess the reliability and significance of forensic evidence, ensuring that only the most relevant pieces are presented in legal proceedings. Ethical considerations, such as avoiding biases and respecting individual rights, shape their every decision. These professionals become the custodians of justice, committed to upholding the values of fairness and unwavering respect for human rights. In the intricate world of the legal system, understanding the underlying principles of forensic justice serves as a guardian of harmony. By combining scientific knowledge, legal expertise, and ethical awareness, those involved in the justice process maximize the potential of forensic evidence. It becomes a formidable tool, cutting through uncertainty to deliver justice based on undeniable truths. This fusion of scientific understanding and legal acumen forges an unbreakable bond, guiding the path toward justice and upholding the steadfast spirit of the rule of law. Henceforth, This chapter aims to provide a comprehensive analysis of the underpinning principles of forensic justice and also reckons with the subtle ethos of scientific and forensic literacy. It enumerates the challenges of imbibing justice through flawless, prompt, and incisive delivery of justice through forensic means. To concretize forensic justice in India, understanding its underpinning tenets infused within criminal investigation is absolutely imperative.

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Evolution of Forensics and Forensic Justice Forensics boasts a sprawling and captivating history. Dating back to the 6th century, archaeologists have unearthed evidence of ancient civilizations like Egypt and Mesopotamia employing forensic techniques. Even in those times, the Chinese were already documenting forensic medicine in written form. These civilizations, despite lacking modern advancements, relied on keen observation and logical reasoning to unravel the mysteries of death (Dhillon 2019). Unfortunately, not all societies were as advanced. Prior to the widespread acceptance of forensics by law enforcement, some communities relied on torturous techniques for determining guilt. When a person was accused of a crime, they underwent a violent and brutal process of interrogation. For serious offenses such as murder, theft, or arson, the accused were subjected to torture. If they confessed, they were deemed guilty; if they maintained their innocence, they were declared innocent. It wasn’t until the 18th century that forensics began to play a larger role in establishing the guilt or innocence of criminals. Legend has it that one of the early pioneers of modern forensics was none other than Sherlock Holmes, a fictional character created by Sir Arthur Conan Doyle in the late 19th century. Sherlock employed his scientific knowledge and deductive reasoning to unravel cases. Inductive reasoning, the art of drawing conclusions about unobserved events based on observed information, resonates deeply within the discipline of forensic science. Crime scenes become a canvas for forensic scientists, who meticulously gather facts and weave them into the fabric of truth. While Sherlock Holmes possesses a certain allure, the stark difference lies in the remarkable scientific advancements of our time. The field of forensics experienced a rapid expansion of scientific techniques during the mid19th to mid-20th centuries. Mathieu Orfila, a Spanish native, played a significant role by focusing on poison detection and its effects on animals, thus initiating the integration of science in criminal cases. (U.S. National Library of Medicine, n.d.) Concurrently, Alphonse Bertillon, a French criminologist and anthropologist, delved into anthropometry—a systematic recording of specific body measurements—for human identification. Although flawed, this approach, combined with emerging photographic technology, reigned as the most accurate method for almost two decades. (U.S. National Library of Medicine, n.d.) In the early 20th century, three remarkable individuals—Sir William James Hershel, Dr. Henry Faulds, and Sir Francis Galton—pursued a different path in individual identification. Hershel and Faulds paved the way for fingerprint analysis, while Galton compiled the knowledge and patterns of fingerprints into a classification system that remains in use today. Their groundbreaking work earned Galton the title of “father of forensic fingerprints” (Stigler 1995). Calvin Goddard, a U.S. army colonel, transformed his medical degree and passion for firearms into one of the most influential forensic fields. His research on bullet comparison revolutionized ballistics, as he identified distinct patterns, known as striations, left on bullets by gun barrels. By utilizing medical equipment like the bronchoscope and cystoscope, Goddard verified that these markings originated from the barrel defects themselves. Furthermore, he enhanced the comparison eyepiece for microscopes, allowing simultaneous analysis of two separate bullets—an essential contribution to ballistics, hair analysis, and fiber analysis (Muehlberger 1955). In 1901, Dr. Karl Landsteiner made a significant discovery by categorizing blood into different types—A, B, AB, and O. Dr. Leone Lattes expanded on this work, developing a simple test to determine the blood type of dried stains—a technique still used today to exclude suspects based on blood type. (Geserick and Wirth 2012). Despite these advances, access to qualified forensic assistance remained a challenge for law enforcement agencies. While larger cities with generous budgets could hire forensic experts and their apprentices, smaller towns had to navigate these new methods without expert guidance.

126  Forensic Justice In 1910, Edmond Locard, a French doctor and criminalist, initiated a process that expanded the availability of experts and their services. Starting with humble resources—an attic space, two assistants, a microscope, and a rudimentary spectrometer—Locard established the first forensic laboratory in Lyon, France. Driven by his unwavering enthusiasm, Locard left an enduring legacy that continues to shape the field of forensics today (Choo and Choi 2012). At the core of contemporary forensic science lies Locard’s Exchange Principle, a fundamental concept taught in the discipline. This principle asserts that individuals leave traces of themselves on objects while simultaneously carrying away traces from those objects. It paved the way for the trace evidence unit in forensic labs, specializing in identifying and characterizing minute traces left at crime scenes—a principle that underpins crime scene analysis (Choo and Choi 2012). In the early 1900s, the United States witnessed a widespread embrace of the forensic movement. The establishment of the first crime lab in Los Angeles in 1923 marked a significant milestone. Calvin Goddard, in 1930, founded the Scientific Crime Detection Laboratory at Northwestern University, while the Federal Bureau of Investigation (FBI) established a national crime laboratory in Washington, DC, in 1932, offering forensic services to law enforcement agencies nationwide. Today, the FBI’s forensic laboratory stands as one of the world’s largest and most renowned. The most monumental leap in modern forensics arose from an unrelated scientific breakthrough. (Muehlberger 1955b). In 1953, Watson and Crick unveiled the structure of DNA, catapulting genetics into a realm of rapid advancement. British geneticist Alec Jefferies introduced genetic fingerprinting in 1984, an innovative technique employing DNA for individual identification. Two years later, Kary B. Mullis invented polymerase chain reaction (PCR), enabling the rapid multiplication of minute DNA samples. This breakthrough empowered forensic laboratories to test trace amounts of DNA from blood smears or single droplets, forever transforming the field. (Martin, Schmitter, and Schneider 2001). The march of progress in forensic analysis remains an ongoing voyage into uncharted territories. Over the span of two centuries, we have transcended the dark ages of torturous interrogations, emerging into an era of sophisticated DNA testing. The bedrock of forensic science owes its existence to the contributions of remarkable scientists who have paved the way. Today’s scientists carry the torch, dedicated to constructing an ever-stronger and more reliable forensic future.

The Underpinning Tenets of Forensic Justice Forensic justice stands as a pivotal cornerstone within the framework of an equitable and efficacious legal system. It draws upon a set of principles and doctrines that govern the collection, analysis, interpretation, and presentation of forensic evidence. This chapter delves into the fundamental underpinnings of forensic justice and underscores their paramount importance in safeguarding the dependability, admissibility, and ethically sound utilization of such evidence. By adhering to these principles, the various stakeholders in the criminal justice system can foster an atmosphere of trust, justify the cause of justice, and also provide robust safeguards against miscarriages of justice, such as wrongful convictions, emphasizing their paramount importance in guaranteeing the dependability, admissibility, and ethical application of forensic evidence (Peisert et al., 2005). Through a comprehensive and unwavering adherence to these tenets, the key stakeholders within the criminal justice system can foster confidence and promote justice while ensuring a safeguard against wrongful conviction.

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Principles of mutual exchange Edmond Locard gained immense fame for formulating the renowned principle known as Locard’s Principle of Mutual Exchange. This theory delves into the transfer of trace evidence between objects when they come into contact. (Hawgood 1998) The essence of this principle can be summarized as follows: “Every contact leaves a trace.” The credit for the initial enunciation of this principle goes to Edmond Locard, a distinguished scientist from France. The principle emphasizes that whenever two surfaces establish contact, there will inevitably be an exchange of matter across the contact boundary. In other words, when a criminal or their tools of crime come into contact with the victim or objects in their vicinity, a reciprocal exchange of trace evidence occurs. As per this principle, it becomes virtually impossible for a criminal to commit a crime without leaving behind evidence or without acquiring traces from the same contact. (Mummery 2021) These traces of evidence, when carefully examined at the crime scene and on the accused, can establish a crucial connection between the suspect and the victim, thereby serving as the basis for a scientific crime investigation. While it is often attributed to Locard that “when a contact occurs between two items, there will always be an exchange of matter between them,” these precise words were not explicitly penned by Edmond Locard himself in the extensive body of work he produced. Langford et al. (2018) Nevertheless, Locard did express the following notion: “It is practically impossible for a criminal to commit a crime, especially considering the intensity of a crime, without leaving traces of his presence.” (Jolley 2000) The key aspect of this principle is determining the places or objects that the criminal or their tools made contact with during the crime. If the investigator successfully identifies these points of contact, it can greatly benefit the investigation. Point of entry: If a criminal enters through a ventilator, their footprints/fingerprints can be found in the dust on the shelf. (Mummery 2021) At the crime scene: Breaking a window or door leaves marks from a jimmy on the wooden frame. Opening a safe with explosives or other tools results in insulation material on the surrounding area and the criminal’s clothes (including shoes), along with explosive residues. Point of exit: When leaving the crime scene, the criminal might leave traces like footprints. However, they typically avoid or remove obvious objects or traces during a thorough search. Nevertheless, ambiguous traces, in line with the principle of exchange, help establish connections between the crime and the criminal, just like larger objects or traces. Every object, whether natural or man-made, possesses a unique identity that is unmatched by any other object. Even when produced consecutively in the same machine, no two things in the universe are identical. (Mummery 2021) Initially, this principle may contradict common beliefs and observations. For instance, grains of sand, salt, plant seeds, or even twins can appear identical. The same applies to man-made objects like coins, currency notes (excluding serial numbers), and typewriters of the same make, model, and batch. However, these objects possess unique characteristics due to flaws in materials, raw material mixing, electrical fluctuations, machine defects, crystal arrangements, imperfect stamping, or the presence of extraneous matter. These individual traits aid in distinguishing variations within and between batches. Extensive research on fingerprints has been conducted, examining millions of them, yet no two fingerprints, even from the same person’s different fingers, have been found to be identical.

Law of progressive change The law of progressive change is another crucial principle that impacts the quality of analysis and its outcomes, whether conducted in a laboratory or elsewhere. This principle states that “Everything undergoes change as time passes.” (McCartney 2013) The rate of change varies significantly among

128  Forensic Justice different objects, exerting a significant impact on forensic science investigations. Here are a few examples: Criminals undergo progressive changes over time, making them unrecognizable unless identifiable through features like fingerprints, bone fractures, or other permanent characteristics. However, such features may not always be available or reliable. Crime scenes experience rapid transformations influenced by weather, plant growth, and living organisms, particularly humans. A delayed examination of the scene amplifies these changes, eventually rendering it unrecognizable. Crime-related evidence can be affected by external factors, gradually altering properties like loose firearm barrels, rusting of metal objects, increased wear and tear on shoes or shoe prints, and the development of new surface patterns on tools. The extent of change depends on time, maintenance, and the object’s use or misuse. In some cases, the object may lose all practical relevance to a particular crime over time. Therefore, prompt action is essential in criminal investigations, as the principle acknowledges the dynamic nature of objects and the need to act swiftly. (Baechler et al. 2020)

Law of individuality This principle holds particular importance in laboratory investigations, specifically regarding the type of specimens or samples required for comparison. It can be summarized as follows: “Only similar items can be compared.” (Breckenridge 2014) The principle emphasizes the need to provide samples and specimens that are alike or similar to the questioned items for comparison. For instance, in a murder case where a bullet is recovered from the victim’s body and forensic analysis confirms that it was fired from a high-velocity firearm, it would be futile to submit shotguns, pistols, or revolvers for comparison with the firearm in question. Likewise, if a cluster of hair is found on the deceased’s hands and the expert determines it belongs to a person of Negroid descent, comparing it to hair samples from individuals of Caucasian races would be irrelevant. Another example is when a questioned document contains typewritten text; sending handwritten or printed specimens for comparison serves no purpose. Hence, this principle underscores the crucial need to provide specimen samples of a similar nature for accurate comparison with the questioned sample obtained from the crime scene.

Law of analysis This principle carries great significance in laboratory investigations of clue materials. It states that the quality of analysis is directly linked to the quality of the sample being analyzed. (Adam 2016) Proper sampling and packaging are essential to ensure accurate results and prevent contamination. In a rape case, for instance, the investigating officer carefully collects the victim’s clothing, which may contain blood and semen stains. The clothes are meticulously dried and packaged, ensuring that stained areas do not touch each other or the container’s walls. (Geserick and Wirth 2012) These samples are then sent to the forensic science laboratory to determine the presence of semen stains and the associated blood group.

Law of probability All identifications, whether definite or indefinite, are consciously or unconsciously made based on the law of probability. The concept of probability is often misunderstood. When we state that a particular fingerprint has been matched to a specific source based on the law of probability, defense counsels often seize upon the word “probability” to argue against a definite opinion. Therefore, in a court of law, it is not customary to consider “probability” or “probability figures.” Probability is

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a mathematical concept that assesses the likelihood of a particular event occurring in a specific manner out of numerous possible outcomes. It determines the chances of success or failure with equal ease. (Adam 2016) The underpinning tenets of forensic justice provide the framework for the reliable, ethical, and effective application of forensic evidence in the pursuit of justice. By embracing scientific rigor, independence, quality assurance, transparency, ethics, and continuous learning, stakeholders in the criminal justice system can uphold the principles of forensic justice. This commitment to the underpinning tenets strengthens the integrity of forensic evidence, enhances the fairness of legal proceedings, and reinforces public trust in the justice system. Ultimately, a robust adherence to these tenets serves to safeguard against miscarriages of justice, protect individual rights, and promote a just society.

Comparative Perspectives on Forensic Justice Forensic evidence: Comparative analysis No doubt, globalization has eliminated the boundaries of nations in terms of technology and scientific advancements. The technology that emerges in one country takes the shape of a global market instantaneously. Amidst this, technological crimes and the required expertise to deal with them have become crucial. As a result, Law enforcement and investigating agencies across the globe can be seen persuading criminals by uniting hand in hand. However, while the legal framework may vary from country to country, there are a few fundamental legal principles most countries follow to combat crime and criminality. The appreciation of evidence in its myriad forms, such as digital, forensic, scientific, medical, etc., becomes highly challenging when it comes to determining its evidentiary value. This can be seen in judicial trends, wherein many times countries adopt the principles laid down by one country as an acceptable legal norm in their domestic jurisdictions. With this regard, appreciating the expert evidence is a domain in which India has formed a nexus with the USA’s Daubert test. In this regard, a brief comparative analysis would reveal the underpinnings adopted by the Indian judiciary while resorting to the doctrinal ethos of some foreign jurisdictions.

Admissibility of expert evidence: US scenario In the USA, the admissibility of expert evidence has a backdrop of two landmark judgments rendered by the US judiciary, viz., Frye’s Test (Frye v. the United States, 1923) and Daubert’s Test. (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993) The principles laid down under these two tests have shaped the law of admissibility of expert opinion in a large sense. The issue of admissibility of expert opinion comes up at a stage when a judge requires specialized knowledge or opinion in a specific field to deal with the issue in the given case. Resorting to the assistance of experts by the judiciary has been accepted by many legal systems around the world. However, the extent to which such assistance can be relied upon and made admissible has been prominently dealt with by the US judiciary in Frye’s case. Frye’s case This case involved a systolic blood pressure deception test, a crude predecessor to today’s polygraph. In 1923, considering the scientific advancements of that era, the systematic blood-pressure deception test was not widely utilized or accepted by the scientific community. Hence, in Frye’s case, the Court,

130  Forensic Justice while refusing to accept the test on the ground of lack of generality of acceptance, also gave certain reasoning, which is termed ‘Frye’s Test’, as follows: In order to sustain judicial admissibility, a novel scientific technique must be sufficiently established to gain general acceptance in the relevant scientific field to which it belongs. Thus, the mere qualification of an expert was not held sufficient enough to admit the expert evidence. Moreover, the generality of acceptance of the technique across the scientific community was given primacy by the judiciary. However, the lacunas of Frye’s test were underlined by several researchers as: (a) That there would continue to be a significant time gap before the scientific approach is embraced by the community. (b) That the scientific community is more trusted than the Court of Law. However, despite criticism, Frye’s test was considered as an authoritative yardstick to determine the admissibility of expert evidence for several decades until the legislature took the initiative to frame express legislative provisions to deal with the issue of admissibility of expert evidence. The same was manifested through the adoption of the Federal Rule of Evidence, 1975. Federal Rules of Evidence, 1975 (Rule no. 709) In order to bring out consistency in the domain of evidence, Federal Rules of Evidence were enacted in 1975. Under which, Rule No. 709 specifically dealt with the expert evidence as follows: “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise if… 1. The testimony is based upon sufficient facts or data, 2. The testimony is the product of reliable principles and scientific methods, 3. The witness has applied the principles and methods reliably to the facts of the case”. The rationale for enacting such a rule was to explore the various capabilities of the experts so as to determine the facts and their adequacy, the reliability of their methods, and their apt applications in that particular field while forming an expert opinion. However, this quest to determine the most appropriate set of principles to admit expert evidence led to the judgment under Daubert’s case, wherein the US Judiciary finally laid down certain concrete principles that are accepted as authoritative across the world, including India. Daubert’s test Daubert’s test laid down a detailed framework to help the judges determine the relevancy and reliability of evidence. The case involved a drug that was in question for its alleged side effects on the child in the womb, thereby causing deformities, wherein the counter-evidence was produced by the parties. In this case, the Court ruled that It must be made sure that the content of the testimony can be and has been tested using the scientific method. Further, the technique used by the expert is subject to the peer review process in the form of publication in peer-reviewed literature. Also, consistently and reliably applied professional standards must be incorporated into the technique. Lastly, the technique must be generally accepted by the scientific community. Thus, Daubert’s test has become an established set of principles to determine expert evidence. The Indian judiciary, while determining the admissibility of the expert evidence, did rely on Daubert’s ruling. However, the Daubert standard was critically analyzed by the Apex Court in the Selvi case (Selvi v. State of Karnataka, 2010). Since the case involved the constitutional validity of narco-

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analysis and polygraphy tests, the judicial analysis touched on myriad aspects of the expert evidence. The court first started its analysis by looking at the case of Frye’s test, wherein the admissibility of the polygraphy test was dismissed for want of sufficient recognition and acceptance in the scientific field, thus giving birth to the general acceptance principle. The Court further considered the ruling in Daubert’s case, which overruled the general acceptance principle and established the twofold rule of admissibility, relevance, and reliability. However, in Selvi’s case, the Court also explored more precedents in the US after Daubert, which paved the way for polygraph admissibility. Here, it’s noteworthy that in Selvi’s case, the Apex Court of India finally resorted to the foreign case (United States v. Scheffer, 1998), which established the admissibility of the Polygraph test in the USA. However, Scheffer’s case did not expressly deal with the issue of expert evidence, but Daubert’s test was accepted by the Indian judiciary. Ultimately, it can be inferred that the Daubert standard is only used in a handful of cases in India, whereas more reliance has been placed on the legislative interpretation given by the judicial proclamations in India.

Judicial Delineation of Forensic Evidence Quintessentially, the word “forensic” comes from the Latin word forensis,” which means “of or before the forum” (Svarney and Svarney 2018), and the term science has been derived from the Latin word “scire,” which means “to know.” (Jena 2017) Considering the etymology of forensic science, it’s evident that forensic science does have a close nexus with the judicial process. One can infer that forensics unfolds the scientific evidence before the forum or court by rendering its findings in the form of expertise, which ultimately enables the judicial minds to channel the judicial process. To that effect, it is highly important to untangle the principles on which the judiciary looks forward and considers evidence brought before it through forensic techniques. So far as the Indian judiciary is concerned, the trends to appreciate forensic evidence have shown a multiplicity of interpretations owing to the case-by-case basis approach adopted therewith. However, to form concrete underpinnings, some sort of ‘principled appreciation’ of forensic evidence is required. This implies that, while appreciating the probative value of the evidence procured by the forensic techniques or making the forensic expert’s testimony admissible, there could be a ‘principled process’ to maintain consistency of interpretations to avoid undue overlapping or ambiguities in judicial scrutiny. Such an approach shall not only lay down the concrete foundation of judicial ethos to deal with forensic evidence, but it would also guide future judicial minds to undertake a firm stance to decode and dispose of cases involving complex facts and circumstances emanating from modern science and tech-based crimes. The Indian judiciary has recognized the importance of forensic evidence in criminal investigations and trials. Over the years, there has been a growing appreciation for the scientific value of forensic evidence and its role in establishing the truth in legal proceedings. The approach of the Indian judiciary to appreciating forensic evidence underscores some of the foundational nuances as follows: Scrutiny of the admissibility of forensic evidence: Considering the ever-changing nature of crime, criminals, and the very notion of criminality, the judicial function of applying existing legal principles to the most dynamic and complex technology-based crimes has become crucial. Since legal principles either emanate from legislation or are the outcome of judicial pronouncements laid down over a sizable span of years, judges often require ‘expertise’ from specialized resource persons. Since no man can be omniscient, sometimes in the given case, the issues involving subtle intricacies of other fields are beyond the purview of the judge’s common knowledge. Additionally, radically

132  Forensic Justice occurring science-tech advancements have paved the way for equally challenging crime patterns with which judicial minds cannot be expected to deal without specialized advice or expert opinions. Thus, seeking the assistance of experts who possess the relevant technical knowledge and asking for their opinion has been envisaged under Section 45 of the Indian Evidence Act, 1872. This provision accommodates the expression ‘opinion of experts.’ However, this provision, on the one hand, paves the way for expert opinion in the form of evidence; it merely clarifies who is an expert under the purview of the Indian Evidence Act and doesn’t per se lay down any guidance or clarification to the judiciary to deal with the opinions of the experts while dealing with diversified cases. This legislative vacuum has been filled by the judiciary itself through various judicial pronouncements, wherein the judicial view on the acceptance of expert testimony even in the pre-independence era can be reflected through the case of Bachraj Factories (Bachraj Factories Ltd. v. Bombay Telephone Co., 1939), wherein it was observed that “any opinion, may it be an expert opinion or mere opinion, which are generally irrelevant but may become relevant upon the circumstances, are not authoritative in value but they are persuasive.” Further, the nature of the expert opinion has also been described by the judiciary, wherein it was held that the opinion of an expert cannot by itself ever be substantial evidence; it can only be corroborative in nature. Further, it was clarified by the judiciary that courts are not bound by the advice given by the experts. (Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, 2010) Hence, it’s been advised to be extra-cautious while admitting the expert testimony. Moreover, expert evidence without any corroboration or circumstantial evidence has been held to have an extremely low probative value. (Magan Bihar Lal v. State of Punjab, 1977) Hence, when it comes to the appreciation of forensic evidence, it remains merely an ‘expert opinion’ in the form of advice and doesn’t have any concrete persuasive value or binding nature. Here, it’s pertinent to mention the judicial precedent laid down by the Apex Court while dealing with cases (Premjibhai Bachubhai Khasiya v. State of Gujarat, 2009; Bahadur Deb Barma v. State of Tripura, 2020) wherein DNA evidence was in question; it was observed that If the DNA report is the sole piece of evidence, even if it is positive, it cannot conclusively fix the identity of the miscreant, but if the report is negative, it would conclusively exonerate the accused from the involvement or charge. Thus, forensic evidence had been opined to be in a developing stage, and it was considered risky to act solely on a positive DNA report. Thus, enhancing the quality of forensic evidence to the extent of gaining judicial confidence over the issues of admissibility is a real challenge for the entire forensic fraternity. Addressing the quality and quantity of forensic evidence: When it comes to the quality and quantity of the witnesses and evidence, the stance of the judiciary appears to be quite clear. The Apex Court has observed that “if there are doubts about the testimony, Courts will insist on corroboration. It is not the number or quantity but the quality that is material. The time-honored principle is that evidence has to be weighed, not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible, and trustworthy, or otherwise. (Amar Singh v. State (NCT of Delhi), 2020) Thus, when forensic evidence is based on scientific findings, its probative value depends on the accuracy, precision, and trustworthiness of the forensic techniques. More pertinently, although the forensic evidence is generated by the reports of the Forensic Science Laboratories (FSLs), the collection of the samples from the crime scene, storage and transportation of such samples, maintenance of the chain of custody of the same, etc. are the stages to be completed by the investigating agencies. Hence, to enhance the quality of the forensic evidence, due diligence on the part of investigating agencies becomes a sine qua non. The recently enacted Criminal Procedure (Identification) Act, 2022, is a promising step towards ensuring the effective collection, storage, transportation, and processing of the samples. However, the robust

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implementation of such legislation is a need of the hour. While underscoring the importance of the forensic evidence in the NDPS cases, the Punjab and Haryana High Court opined that the forensic report forms the foundation of a case under the NDPS (Narcotic Drugs and Psychotropic Substances) Act, and if the same is not there, the entire case of prosecution would fall to the ground. Further, it was clarified that the final report or challan submitted in the instant case did not contain the FSL report, and in view of that, the High Court came to the conclusion that without the filing of the FSL report, a case under the NDPS Act could not stand. Vinay Kumar v. Vicky v. State of Haryana, 2021. Assessing the probative value of the forensic evidence: Primarily, its well-evident that, the probative value of any type of evidence depends upon various factors. Forensic evidence due to its peculiar and unique nature often requires either to be furnished in the form of ‘expert opinion’ as envisaged under Section 45 of the Indian Evidence Act, 1872 or as a ‘report of Government Scientific Expert’ under Section 293 of the Criminal Procedure Code, 1973. Here, the personal appearance of the forensic expert before the Court under Section 45 might be crucial whereas, the same is not mandatory under Section 293 of Cr.P.C. However, in both the cases, the quality of the evidence rendered by the forensic expert is required to pass the strict judicial scrutiny. In this regard, the Apex Court has guided as to what expert ought to follow while rendering his expertise before the Court in the case (State of Maharashtra v. Damu s/o Gopinath Shinde, 2000) that, “Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.” In consonance with this, there are various other occasions on which the judiciary has underlined the primacy of corroboration of other evidence with that of scientific evidence. One of such cases is of Darbara Singh (Darbara Singh v. State of Punjab, 2012) wherein, it was held that, So far as the question of inconsistency between medical evidence and ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy.” Hence, forensic evidence while rendered before the Court if corroborates with some other form of evidence such as circumstantial evidence and oral witnesses does hold higher probative value.

Conclusion The convergence of forensic science into the quest for justice has proven to be vital progress, reshaping the landscape of the legal system. Forensics, with its meticulous techniques and scientific approach to evidence analysis, has transformed the traditional ways of appreciating evidence. At the same time, in the judicial process, where the admissibility of evidence often becomes challenging on account of its complexities, forensics is offering the most reliable and promising methodologies. This contribution of forensics can be seen in the changing nature and scope of modern-day investigations, wherein agencies are consistently preferring forensics. Thus, forensics has emerged as a powerful tool for ensuring accuracy, fairness, and efficiency in the criminal justice system. Forensics, being a science to assist the judiciary in scrutinizing the evidence and enabling the judges to arrive at a conclusive finding of guilt for the culprits, encapsulates the core of forensic justice. The incorporation of empirically tested evidence along with prompt expert opinions as well as scientific analysis rendered by FSLs has significantly contributed to reducing the potential errors of wrongful convictions vis-à-vis it has enabled the judges to rely on and consider the most accurate analysis of evidence while determining the probative value of the same. However, at the same time, the legal principles to govern and amplify the effectiveness of forensics require a more concrete and pellucid set of parameters to empower the judges in the disposal of today’s highly complex cases.

134  Forensic Justice Forensic justice has thus become a resonance of quality and precision in the domain of evidence. The cardinal underpinnings of justice, such as fairness, truth, and accountability, are most reliably achieved through forensic evidence. As science and technology progress, forensics is enabling new ways of dealing with the complexities of crime and criminality generated by such progress. To that effect, it becomes imperative to form stronger synergies between the judiciary and forensics. With the confluence of advancements in forensic technologies, the field of criminal justice has undergone a transformation in the way cases are investigated, prosecuted, and adjudicated. Through this consorted approach, the envisioning and redefining of justice is indeed achievable, as the stronger the foundations of forensics, the more concrete justice would be depicted through the judicial process.

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Redefining Justice: The Transmutation via Tenets of Forensics  135 18. Martin, Peter D., Hermann Schmitter, and Peter M. Schneider. “A brief history of the formation of DNA databases in forensic science within Europe.” Forensic science international 119, no. 2 (2001): 225–231. 19. McCartney, Carole. Forensic identification and criminal justice. Routledge, 2013. 20. Muehlberger, Clarence W. “Col. Calvin Hooker Goddard 1891–1955.” Journal of Criminal Law and Criminology 46, no. 1 (1955): 103. 21. Mummery, David. “Every contact leaves a trace.” British Journal of General Practice 71, no. 712 (2021): 512–512. 22. Peisert, Sean, Sidney Karin, Matt Bishop, and Keith Marzullo. “Principles-driven forensic analysis.” In Proceedings of the 2005 workshop on New security paradigms, pp. 85–93. 2005. 23. Renaud, Karen, Ivano Bongiovanni, Sara Wilford, and Alastair Irons. “PRECEPT-4-Justice: A biasneutralising framework for digital forensics investigations.” Science & Justice 61, no. 5 (2021): 477–492. 24. Roach, Kent. “Forensic science and miscarriages of justice: Some lessons from comparative experience.” Jurimetrics (2009): 67–92. 25. Sporer, Siegfried Ludwig. “Lessons from the origins of eyewitness testimony research in Europe.” Applied Cognitive Psychology: The Official Journal of the Society for Applied Research in Memory and Cognition 22, no. 6 (2008): 737–757. 26. Stacey, Robert B., and Training Unit. “Report on the erroneous fingerprint individualization in the Madrid train bombing case.” historian 404 (2005): 294–2647. 27. Stigler, Stephen M. “Galton and identification by fingerprints.” Genetics 140, no. 3 (1995): 857. 28. Burroughs, John. “The Handy Forensic Science Answer Book.” Reviewer’s Bookwatch (2018). 29. U.S. National Library of Medicine. “Visible Proofs: Forensic Views of the Body: Galleries: Biographies: Alphonse Bertillon (1853–1914).” Accessed 4th June 2023. https://www.nlm.nih.gov/exhibition/ visibleproofs/galleries/biographies/bertillon.html. 30. U.S. National Library of Medicine. “Visible Proofs: Forensic Views of the Body: Galleries: Biographies: Mathieu Joseph Bonaventure Orfila (1787–1853).” Accessed 4th June 2023. https://www.nlm.nih.gov/ exhibition/visibleproofs/galleries/biographies/orfila.html. 31. van Straalen, Elmarije K., Christianne J. de Poot, Marijke Malsch, and Henk Elffers. “The interpretation of forensic conclusions by criminal justice professionals: The same evidence interpreted differently.” Forensic science international 313 (2020): 110331. 32. Indian Evidence Act, 1872 (Act 2 of 1872), s. 45, 138 33. Indian Criminal Procedure Code, (1973), s 293 34. The Narcotic Drugs and Psychotropic Substances Act, 1985 35. Bachraj Factories Ltd v. Bombay Telephone Co. Ltd. AIR 1939 Sind 245 36. Malay Kumar Ganguly v Dr. Sukumar Mukherjee AIR 2010 SC 1162 37. Magan Bihar Lal v State of Punjab, AIR 1977 SC 1091 38. Premjibhai Bachubhai Khasiya v. State of Gujarat 2009 Cri. LJ 2888 39. Bahadur Deb Barma v. State of Tripura, Supreme Court – 07-10-2020 40. Amar Singh v. State (NCT of Delhi), 2020 SCC OnLine SC 826 41. Vinay Kumar @ Vicky v. State of Haryana CRR-712-2021 42. State of Maharashtra v. Damu s/o Gopinath Shinde and Ors (2000) 6 SCC 269 43. Darbara Singh v. State of Punjab, (2012) 10 SCC 476

Chapter 8

Exploring the Connection of Criminology and Forensics in the Criminal Justice System Realm: A South African Perspective Sphamandla Lindani Nkosi, Mandlenkosi Richard Mphatheni and Witness Maluleke

Abstract: Limited studies have been conducted on the connection between criminology and forensics in the Criminal Justice Systems (CJS) realm; however, the reviewed studies gave the actual meaning of these key concepts, treating them distinctively as if they stemmed from vast study disciplines. The objective of this chapter was to establish the connection between criminology and forensics, particularly in describing criminality and investigations of crime in South Africa under CJS. Following a qualitative research approach, supported by a narrative research design to purposively select adequate data, restricted from 1961 (the oldest cited source) to 2023 (the most recent cited source), with the application of inductive Textual Content Analysis (TCA), This chapter established that forensic criminology remains an essential realm within the South African CJS, further requiring comprehensive descriptions to consider the non-standard characteristics of these concepts using available theoretical frameworks and practical elements. For recommendations, the failure to register forensic criminology as a profession in South Africa and related impacts should be urgently re-addressed by the relevant stakeholders, and the limited prioritisation and slow progress of forensic criminology studies applications in South Africa require urgent, responsive interventions. Keywords: Criminology, Criminal justice system realm, Forensics, Forensic criminology, South Africa

Introduction It may not be contested that the crime levels in South Africa require the implementation of a multifaceted approach. Criminalology and forensics remain imperative structures that may be concocted to investigate and combat various crime categories in South Africa. These professions can play a huge role in the CJS curriculum. Among the roles that the criminologist may play in the justice

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system are victim empowerment, the forensic criminologist role, and the assessment of juveniles for the purposes of diversion (Beukman, 2008). According to this chapter, the connection between forensics and criminology remains an utmost establishment in the justice system of South Africa; however, it may not be disregarded that, to a large extent, it receives limited scholarly attention. Before offering discussion on the connections between criminology and forensics, it is essential to understand the term ‘forensic investigation.’ To this end, Van Rooyen (2004) (in van der Watt, 2014, p. 33) highlights that confusion prevails within the investigation fraternity with regard to the true meaning of forensic investigation and states that it is more often than not associated with the investigation of computer-related crimes, as well as crimes such as fraud and corruption. Do remember, however, that forensic investigation may not only relate to criminal cases but may also include civil cases, corporate investigations, and disciplinary cases. Barhuizen (2023) submits that ‘criminology’ is broadly the primary starting point of criminological studies as the ‘study of crime’, in all its various facets and impacts as ‘crime studies’. Phillips and Bowling (2003) highlight that criminologists routinely use socio-demographics to describe victims of crime and offenders, but less commonly to describe criminal justice practitioners, especially police officers who interact with varied interested parties. To this end, universities developed programmes in criminological studies. For clarity, criminological theories adopted multidisciplinary approaches to understand crime itself rather than conducting studies on crime based on overall Anthropology, Sociological or Psychological Law, and related theories. The integration of these theories leads to modern approaches to criminology. Whereas ‘forensics’ is not connected entirely to the discipline of Criminology, since forensic science is largely so wide that it includes forensic practises for many disciplines outside of criminology, although it has now been closely linked and associated with court practises and the giving of evidence in criminal cases. (Definitionally, ‘forensic science’ is the use of scientific methods or expertise to investigate crimes or examine evidence that might be presented in a court of law.) Forensic science comprises a diverse array of disciplines, from fingerprint and Deoxyribonucleic Acid (DNA) analysis to anthropology, biology, wildlife forensics, and even digital forensics for cybercrime. While there is an obvious link to crime evidence, it is only one component of the overall picture in crime studies. Importantly, ‘criminology’ originated from the need to examine cases, “requiring those involved to bring all the science they could bear to its understanding” by gathering knowledge, determining scientific facts, and answering questions. This involves many disciplines within the Social Sciences. Moreover, the first academic reference to ‘forensic criminology’ appeared in the United States of America (USA) in the 1936 book entitled ‘crime’s nemesis’ by Luke May, referring to the scientific detection of crime and criminals from the combined perspectives of physical evidence analysis and criminal Modus Operandi (MO) analysis. This term can next be traced to 1987, when the term postcriminalistics appeared in a book entitled ‘Expert Witnesses: Criminologists in the Courtroom,’ focusing on issues pertaining to ‘policing, court processing, correctional centres treatment’ based on research and theoretical and process-oriented expertise (Ovens, 2020). Methodologically, this qualitative chapter reviewed existing literature to explore the connection between criminology and forensics in the CJS realm, focusing on South African perspectives. Furthermore, a narrative literature review was utilised as a research design due to its ability to identify and synthesise different sources, such as reputable ‘textbooks, internet sources, local Acts, and journal articles on ‘criminology and forensics (Campbell Collaboration, 2018). Considering this, researchers gathered secondary data using a purposive sampling technique. This secondary data was also sourced from research engines such as Google Scholar, institutional Electronic Theses and Dissertations (ETD) repositories, Jstor, Sabinet, and EbcoHost that focused on the topic in question.

138 Forensic Justice The selection criteria were also determined by restricted data from 1961 to 2023 [Not in sequence] to reach data saturation (Maluleke, 2020; Mokwena & Maluleke, 2020; Creswell, 2014). Evidentially, it is also provided that one can ask questions of documents in the same way as with research participants. The collected data could be qualitative in nature, for example, to determine ‘what ideas are expressed in the document and what is the underlying approach or ‘agenda’ of the document?’ (Matthews & Ross, 2010). Moreover, the search was limited to work on evaluating legislative frameworks and structures for policing stock theft in South Africa. The data was analysed thematically using inductive TCA. This method can be used to identify, analyse, and report patterns within a data set, allowing for descriptive organisation of the data in a way that facilitates interpretation of various aspects of research topics and can be usefully applied to documents (O’Reilly & Kiyimba, 2015). Braun and Clarke (2014) provide that this data analysis approach focuses on the identification and classification of patterns or themes from collected qualitative data; this was the objective of this study. The researchers further followed Clarke and Braun’s (2014) models of this data analysis method, closely focusing on these six phases:

Phase 1: Familiarisation with Data The researchers were familiar with the collected data from the reviewed literature studies and conducted documentary analysis from 2000–2021, not in sequence.

Phase 2: Generating codes The Two (02) thematic features were identified from the reviewed literature studies and analysed studies instead of generating codes to ensure simplification and the determination of meanings attached to the identified study themes.

Phase 3: Identifying themes The theme of this study was linked to the objective of this chapter [Exploring the Connection of Criminology and Forensics in the CJS Realm: A South African Perspective], based on the reviewed literature studies and conducted documentary analysis (Acts).

Phase 4: Reviewing themes The identified study themes were reviewed and correlated with the generated data to ensure correspondence with the objective of this chapter, as phase 3 refers.

Phase 5: Defining themes The identified study themes, to which phases 3 and 4 refer, were outlined and discussed based on the objective of this chapter, aided by the reviewed literature studies on this subject.

Phase 6: Article writing This study explored the Connection between criminology and Forensics in the CJS realm, focusing on a South African perspective for the final production of this chapter. Overall, the literature review of this chapter focuses on criminology and forensics by outlining ‘the historical facets, evolutions, and challenges of connecting these concepts, by looking at specific theoretical frameworks (Classical versus Positivist School of Thought). The future of this connection was also presented in this section. Moreover, the identified study themes were limited to the ‘limited

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prioritisation and slow progress of forensic criminology studies applications in South Africa (Theme 1), as well as the failure to register forensic criminology as a profession in South Africa and related impacts (Theme 2).

Preliminary Literature Review The historical facets of criminology and forensics It is incontrovertible that criminology and forensics topics, as far as South Africa is concerned, have received minimal scholarly attention. As far as the humanities may have researched this subject, only some fields have shown interest in it. It is unclear in the literature whether the connection between the two concepts is tangible and valuable in the South African CJS. Therefore, this chapter finds it critical that this concept gets more deliberations for current and future reasons. Firstly, the shortage of literature on this concept requires more research. Secondly, if any stakeholders aim to strengthen this discipline in South Africa, there is a need for more exploration and comparison to be made, particularly under human science scholarship. Then, any exploration and future planning regarding forensic criminology require a deeper understanding of past and current developments and practises in criminology and forensics. To simplify this, forensics and criminology are separate fields but perfectly merge under the law and criminal justice. In this regard, Manikantan (2019) opines that forensic criminology is well-compatible under forensic and law concepts. Petherick, Turvey, and Ferguson (2009) indicate through their research that forensic criminology is a field of study within criminology apart from any legal system that can employ its practitioners. Williams (2014) considers the term forensic criminology to be new but argues that aspects of this concept have been used across different countries for many centuries. In this respect, it is said that scientists and criminal investigators collaborated with medical professionals to deal with legal issues using a combination of scientific approaches and methodologies (Evans, 2006). Petherick et al. (2009) insist that, in order to be a meaningful discipline, forensic criminology must operate outside of all legal restrictions as a separate realm. In their emphasis on merging criminology and forensics, Abbiati, Azzola, Palix, Gasser, and Moulin (2016) say that criminal forensic assessments may involve criminologists, who would collaborate with forensic psychologists and psychiatrists. In the past, defendants have been diagnosed by forensic psychologists and psychiatrists to determine if they can be charged with a crime. But more frequently, the criminal justice system is now tasked with having these experts assess criminal defendants’ potential for violence, the likelihood of relapsing, and the risk to public safety for lengthy or even indefinite periods (Senon, Lopez, & Cario, 2012). Likewise, Maree, Joubert, and Hesselink-Louw (2003) endorse the compatibility of forensics and criminology by highlighting the forensic role of the criminologist. James (2023) further mentions that forensic science as it relates to criminology has been employed in some capacity for ages and frequently directly impacts the law. Labuschagne (2003) put forward the argument that the concept of “forensic” does not belong to a specific field and asserts that it describes any professional who can appear in court as an expert. This claim makes it possible for forensics to merge with criminology; therefore, forensic criminology perfectly exists. The combination of criminology and forensics plays a vital role in the criminal justice system. Notably, collectively, forensic criminology, as a combined concept, is reactive and proactive, and in this field, officials may collect valid evidence and identify and label criminal behaviour. As stated in this section, the work of forensic criminology cannot be underestimated, particularly during court proceedings. Subsequently, Williams (2014) states that the functions of crime investigations

140  Forensic Justice can be demarcated into Three (03) elements, namely: 1) Reactive evidence collection, 2) Proactive intelligence gathering, and; 3) Criminal identification labelling. Thus, the crime investigation requires a continual understanding of the committed crimes and Modus Operandi [MO] (Methods of operation), as employed by criminals to strengthen the level of evidence gathering; therefore, combining forensics and criminology ensures that new methods are learned and swiftly implemented. The outlined elements can be better used for the investigation of many criminal offences by the police, while responding to the general phases of criminal investigation, such as the preliminary, in-depth and concluding investigation processing. The integration of these 03 elements can be positively used as an investigative link of interest to forensic criminology. Furthermore, the forensic investigation process consists of Ten (10) steps, not limited to the following categories: 1) Receiving of an allegation, 2) Agreement, 3) Planning that goes with preparation, 4) Gathering of information, 5) Verifying and analysis of information, 6) putting the evidence as a document, 7) Beginning legal proceedings, 8) Determination and disbursement of disciplinary and corrective action, 9) prevention and 10) Application of human behavioural knowledge (Williams, 2014). Forensic criminology supports gathering various pieces of evidence after a crime commission. Moreover, the stated 10 categories clearly demonstrate the main pillar of investigations: a strong partnership among stakeholders and ensuring that all steps are correctly followed to support the phases of crime investigations in general and forensic investigation in particular. Forensics can demonstrate all the quality steps to be followed in investigating a criminal offence. As much as forensics can apply skills and techniques, criminology can explain, describe, and provide more information on the motivations of criminals. In short, it is safer to say that forensics in the justice system can execute investigation methods to investigate offences. On the other hand, criminology can label criminals and demystify criminality, including describing and predicting MO, crime patterns, and crime and age. For this reason, many forensic criminology proponents suggest that there is a lot of connection between these fields. Moreover, the sub-field of criminology and forensics (Forensic science) refers to the application of science to answer legal questions. It is an interdisciplinary field that includes various subject areas, actors, and organisations from scientific and legal disciplines. Forensic science, which is dedicated to the administration of safe justice, plays an important role in the CJS. It can help law enforcement and courts resolve crimes by facilitating the identification and apprehending of criminal perpetrators. Forensic science is used in a variety of activities, including gathering evidence at crime scenes, developing investigative strategies, generating investigative leads through various lines of inquiry, and processing evidential materials that are of probative value in a relevant case (Amankwaa, Amoako, Bonsu, & Banyeh, 2019). Applying science to legal issues through the interdisciplinary field of forensic science is still in its infancy. It includes a wide range of academic fields, including the social, medical, and natural sciences. The discovery of this crucial field has served as a catalyst for the development of the necessary investigative techniques, court systems, and methods for solving and reducing crimes around the world (Koomson, Gaisie, Ayitey, & Antiaye, 2019). In addition, forensic science employs a wide range of scientific and technological applications. The most well-known examples include the use or analysis of fingerprints and finger marks, DNA testing, examination of firearms and tool marks, drug and toxicology analysis, and forensic pathology. With the advancement of technology and the emergence of new applications, new forensic science applications have emerged, such as facial comparison, video and audio analysis, digital forensics, and new technologies designed to improve traditional forensic applications. Internationalisation has improved efforts to consolidate the rewards of forensic science (Amankwaa et al., 2019).

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Despite advancements in forensic science in developed nations, Africa took a long time to accept this new field of study. In an African context, it took place in the late 20th century. The field is still developing and has slowly made its way into the African Criminal and Legal Justice Systems. Over the past few decades, this discipline has assisted law enforcement organisations on the African continent in solving complex crimes. Nevertheless, in order to effectively investigate evolving and new sophisticated crimes, it will be necessary to use parallel sophisticated techniques (Koomson et al., 2019). Furthermore, rape cases, murder cases, and kidnappings involving local and foreign nationals are just a few of the high-profile cases that frequently make the news and may be of interest to forensic investigators. Investigations into these cases are frequently complicated by needless delays, bad evidence handling, and poor crime scene management, and occasionally the results of investigations are not known. As the centre of forensic science, good policy ensures that the discipline is applied in a way that upholds justice, identifies injustices, and guards against them (Amankwaa et al., 2019).

The Evolution of Criminology and Forensics in South Africa In South Africa, forensic science developed from being mainly practised by medical doctors who were registered as District Surgeons (DSs) about 100 years ago (Ubelaker, 2015). The use of forensic medical services in cases where evaluation of a surviving person is required in respect of rape, sexual assault, interpersonal violence, abuse of older people as well as children, and driving while intoxicated Also, the use of forensic medical services is required in the investigation of morbid forensic pathology, which is the medicolegal or autopsy investigation of unexpected, unexplained, and/or unnatural deaths (Bernitz, Kenyhercz, Kloppers, Nöelle L’Abbé, Nicholas Labuschagne, & Olckers, 2014). DSs oversaw the examination of practically every incidence and/or case involving interpersonal violence that was reported to the police, and as a result, most of them became highly experienced medicolegal practitioners. Following the first democratic elections in 1994, the official designation and post of DS were abolished, and all cases previously attended to by the DS would be transferred to local clinics and hospitals, where the resident medical officer (casualty officer) would provide the necessary forensic medical (Diagnostic and therapeutic) service. Due to the relatively junior profile of medical practitioners at such centres, their reluctance to become involved in matters that could result in court proceedings, and the relative lack of interest displayed by many of these clinicians, among other factors, there has been a dramatic decline in the clinical expertise and experience of medical practitioners who now must testify in courts of law (Bernitz et al., 2014). Summarily, contrary to the forensic criminologist who should be assisting the court with their expertise, there is a very minimum role that the South African CJS uses them for in the attainment of justice. For remedy, the establishment of the Criminal Record and Forensic Science Service (CRFSS) as a notable effort of the South African criminal justice system was witnessed as a crucial move towards combining the two fields. There may be a myriad of discernible past establishments by various stakeholders, including the SAPS, that show the effort to prioritise the existence of forensics and criminology or the combining of these fields in South Africa. For instance, in May 2005, the CRFSS was founded as a section of the SAPS reporting to the deputy national commissioner of criminal intelligence and crime detection. It was once known as the SAPS Forensic Science Laboratory (FSL) and the SAPS Local Criminal Record Centre (LCRC), and it was part of the detective service. It is now a separate division that offers ‘an even more integrated approach to the investigation of exhibits and the presentation of expert testimony; [and] expensive and limited resources such as the photography laboratory and crime scene equipment are also shared’ (SAPS, 2006).

142  Forensic Justice The CRFSS’s mission is to “provide criminal record and forensic science services to the SAPS in order to effectively prevent and combat crime” (SAPS 2007a). The CRFSS’s operations budget for 2006/07 was R156 687 000, with an additional R36 million set aside for equipment (Du Toit, 2007). The main facility is in Pretoria’s Silverton, with an auxiliary biology unit near Arcadia. The majority of forensic functions are handled by the laboratory in Cape Town, while the laboratories in Durban and Port Elizabeth handle chemical and ballistics analysis (Omar, 2008). Previously, when potential DNA analysts applied for jobs at the FSL, they were trained in-house using an unaccredited curriculum. The National Certificate in Forensic Science, South Africa’s first statutory forensic science certification, was designed and registered on the National Qualifications Framework in 2007. It is currently used as an entry-level qualification for SAPS FSL workers. The SAPS FSL personnel must now have a relevant science degree, depending on the part of the FSL into which they will be deployed (SAPS, 2014). Training scientists to work at the SAPS FSL is extremely expensive per person. Biology DNA training costs around R450 000 per person, whereas ballistics training costs over R500 000 per trainee. Training in chemistry toxicology and chemistry medicines costs around R330 000 per person. The training sessions last two to three years. South African tertiary institutions offer science courses that are relevant for work as a scientist at the FSL. However, none of the higher universities offer ballistics or biology training that will adequately prepare a person to work as a forensic analyst at the SAPS FSL (Omar, 2008). A bachelor’s degree in science, engineering, criminology, or law is required for employment in the CRFSS. The entry-level position is sergeant, with an annual salary ranging from R96 570 to R122 190 (Swart, 2008). Graduates begin their careers at the laboratory with an induction, followed by specialised in-house training that differs by specialty. Following that, written and oral exams, as well as practical competency testing, are administered. Remedial training is subsequently provided, and if successful, the scientist is certified competent. After completing operational mentorship, the scientist is authorised to operate independently (Omar, 2008). The CRFSS is led by a divisional commissioner and consists of three parts: the SAPS LCRC, Technology and Technical Management (TTM), and the SAPS FSL. The CRFSS performs the following functions: • The application of forensic science to crime prevention and detection [SAPS FSL]. • Managing criminal records and using sophisticated procedures to recover physical evidence from crime sites [SAPS LCRC]. • Facilitating SAPS technology development and providing divisional support services [TTM] (SAPS 2007a).

Challenges of Connecting Criminology and Forensics: The Theoretical Frameworks [Classical and Positivist School of Thoughts Versus Forensic Science] Applications In recent years, the police’s forensic science laboratory has faced a barrage of criticism for processing delays and DNA backlogs (Bezuidenhout, 2020). However, records from the SAPS reveal that, while backlogs were significant from 2004 to 2006, the situation has now improved. Despite this, the SAPS’s CRFSS continues to face a number of hurdles, including expensive training costs, low salaries, significant personnel turnover in the CRFSS, and issues with evidence collection at crime scenes (Omar, 2008). The training of criminology graduates to provide and assist in forensic science services would help lessen the backlog the SAPS is facing. Some of the problems that can be attributed to the evidence collection phase are as follows:

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• The training of forensic field workers is insufficient. • The samples are of a poor quality because of degradation due to exposure to environmental factors. • The health care practitioner submits a crime kit that is partially complete. • The crime kits are not stored in a cool place, or the kits are not sent to the laboratories as quickly as possible. It stands to reason that if there is a problem at the evidence recovery stage—the most important phase of the process—the laboratories will demonstrate flawed statistics, and success will be difficult to achieve. Harnessing the capabilities of forensic science comes with the costs of establishing laboratories, training personnel, and developing appropriate policies and systems for quality control and assurance. These costs inevitably present difficulties in pursuing forensic science, and its usage may be limited by the availability of sufficient funds. This may be more pronounced in developing countries (Amankwaa et al., 2019). Hence, Koomson et al. (2019) assert that the expectation that forensic science will be fully embraced in Africa may be at odds with the facilities, knowledge, funding, and environment that are required to make it possible. This is clear from the annual financial budget for science in the majority of African nations. Amankwaa et al. (2019) add that a significant gap is the dearth of academics and researchers in forensic science who are qualified and trained. Collaborations with cutting-edge forensic organisations abroad may help address this shortcoming. This will improve the quality of forensic services provided to the legal system and law enforcement while also ensuring that graduates are sufficiently prepared to meet the challenges of forensic science practise. Ovens (2020, p. 560) delineates “criminology as an interdisciplinary field that includes “Medical Science, Psychiatry, and Criminal Anthropology”. Although the mentioned disciplines dominated the origins of criminology, other disciplines such as “Psychology, Sociology, Psychiatry, Psychology, Biology, Neurology, Political Science, and Economics contributed to the study of crime” (Bartol & Bartol, 2017) (in Ovens, 2020, p. 560). Criminology, as the only discipline that scientifically studies crime in its relativity (Bezuidenhout, 2020), has evolved since its founding figure, Cesare Lombroso (1835–1909). Lombroso has been honoured for his ground-breaking research on the psychological and physical typologies of criminal behaviour (Wolfgang, 1961). The natural selection theory proposed by Charles Darwin had a significant impact on Lombroso’s work. As a result of Lombroso’s argument and contribution to the criminological school, it was the first attempt towards scientific theory in criminological thought, according to Tibbetes (2019) (in van der Westhuizen & Bezuidenhout, 2020, p. 139). Following Lombro’s contribution, a criminology professor by the name of Dr. Hans Gross is credited with publishing two significant contributions, Criminal Investigation (1906) and Criminal Psychology (1911). His work reportedly established a strong foundation for both general criminal investigations and the scientific evaluation of physical evidence (Bezuidenhout, 2020). If the knowledge gained through the application of criminology is used in criminal courts to decide cases, criminology converges into a forensic field (Petherick, Turvey, & Ferguson, 2009). The Classical School of Thought attributed to Cesare Beccaria (1738–1794) provided the first naturalistic explanation of the occurrence of crime (van der Westhuizen & Bezuidenhout, 2020). The founders of the classical school of thought, having been legal practitioners, believed that human beings committed crimes influenced by hedonism and pleasure-seeking principles. This school of thought argued that individuals have choices and free will to decide whether committing a crime is worthy of benefits in comparison with the punishment of such a crime. The authors of this chapter

144  Forensic Justice acknowledge that the classical school of thought is forensic in nature as it analyses the criminal behaviour of an individual or criminal. This analysis requires considering all the relevant aspects that are taken into consideration when an offender decides to commit certain crimes; thus, this chapter argues that the classical school of thought applies forensic science. Contrary to the classical school of thought presented, the Positivist School of Thought emerges, which is accredited to a medical practitioner, Cesare Lombroso (1835–1909). The positivistic school of thought, as it was founded by scientists, asserts that individual people do not commit crimes because of their individual choices. They argue that offenders commit criminal offences because of influences that are beyond their control. Furthermore, asserting that criminal offenders’ crimes may be caused by implications in the genetic make-up of an individual person Some acts may relate to psychological retardation, which may be the causal crime factor of an individual’s offending behaviour (Figueredo, Gladden, & Hohman, 2011). Criminology is the science that broadly studies crime, which at present is narrowly defined and critiqued for focusing on a particular scope (i.e., Crime and the behaviour of crime perpetrators). This perception emerges from the systematic study of how police agencies react to criminal activities to prevent and investigate criminal acts in the emerging and broad democratic spheres of policing. Although narrowly defined, from a broad perspective, how policing practitioners conjure up preventive measures necessitates their incorporation into this discipline. Criminology moved from the discriminatory legal practises of the 18th century to the technologically advanced era of the 21st century (Motsepa, Mokwena, & Maluleke, 2022). For example, there is a thin line between the classical theorists and the positivist school of criminology. The former argues for and emphasises fair and proportionate punishment and reformation, whereas the latter emphasises the understanding of criminal behaviour by uncovering factors that account for criminal behaviour and psychotherapy. The diverse and prolific schools of thought about crime differ in terms of focus, criminality, and criminal act connotations. This evolution includes different disciplines but is not limited to economic, ecological, sociological, and psychological explanations of crime and criminal behaviour. Furthermore, during the second half of the 20th century, criminology began to assert its independence from the traditional disciplines that spawned it, and in Western Europe, the USA, and Canada, criminologists expanded their professional associations and academic writings (Motsepe, Mokwena, and Maluleke, 2022).

Future of Criminology and Forensics in South Africa Ovens (2020) provides that various problems are encountered in the South African CJS pertaining to the handling of various crime victims, with offenders becoming victims of overcrowding. One may justify that offenders have broken the Laws of a civilised society and must be punished. Considerably, this gives birth to the ‘Standard Minimum Rules and the Constitution of South Africa, 1996, placing more emphasis on the just and fair treatment of all potential offenders and victims. To ensure the effectiveness of CJS in terms of just and fair treatment of offenders, victims, and greater society, forensic criminologists can act as court experts to assist both the prosecution and the defence. They can positively individualise the victims and offenders and assist the presiding officer with the heavy burden of sentencing. They can also be used in the CJS to provide a unique service to offer victim impact statements and pre-sentence reports, allowing the courts to see offenders and victims as unique individuals and to assess each case on merit. Considerably, professionalisation and ethics need to be put in place and prioritised to ensure effective use of the criminologist and to regulate their behaviour. The need for forensic criminologists cannot be underestimated any longer; their expertise and various demands in relation to the

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combination of theory development on crime and sound empirical research on criminal phenomena are very essential in this regard. They are used in the adoption of a critical approach that examines (Ovens, 2020). Based on scientific argument, Steyn and De Vries (2010) state that the SAPS’s management-type qualification cannot be seen as a professional qualification and that Criminology and Policing (Forensics), like many other social or behavioural sciences, do not qualify as professions either. To register members on a so-called professional register and then discipline them in terms of a professional code would therefore be inappropriate. The authors argue that the concept ‘professional’ should rather be avoided when referring to police practitioners and criminologists, penologists, police scientists, and victimologists. Furthermore, a ‘Professional Standards Unit’ should conduct such tests and monitor the professionalism of traffic police members. These standards must include the manner in which male police engage with women, which is clearly an issue of concern. This unit would provide targeted and generalised education initiatives among traffic police members to improve professionalism and people skills. Dashboard-mounted cameras and requirements to engage with civilians in view of the camera lens could also significantly contribute to improved professional behaviour. At the same time, civilians need to be empowered to handle corrupt and criminal police through education and access to functional complaint systems. If the traffic police hope to discourage a culture of corruption and crime in the country, they need to arrest civilians who attempt to enter illicit exchanges with them. If there is a minimal threat of exposure to either of the corrupt parties, there will be little incentive for them to change. Civilians will continue to distrust and look down upon police, and the police will continue to blame civilians for ‘tempting’ their members. Neither way will contribute to the reshaping of the traffic departments’ image that is so urgently needed. Participants in this study appeared to be largely ignorant of the oversight and complaint infrastructure that exists to support civilians who want to file complaints against police. Moreover, this can be rectified through public awareness campaigns, but only partly. Many participants knew that the first point of call for complaints is a police station, but not even one trusted this system enough to use it. The local traffic departments’ need to consider the possibility that civilian ignorance about complaints may be born out of the complaints systems having failed them. Promoting greater awareness in the province and neighbouring countries, improving resources, advanced training, and education, and strengthening the enforcement response and reporting techniques can go a long way (Steyn & De Vries, 2010). Therefore, the future of forensic criminology in the South African context urgently calls for the registration of this profession. They [Forensic criminologists] should belong to a professional board with a code of conduct clearly stipulating work ethics and guidelines, as this professionalisation of this field will continue to strive to achieve the goals of having their own regulatory body, which can uphold the excellence of this profession. This will enable them to be more recognised as renowned experts that can make valuable contributions to issues pertaining to questioning and enhancing public policies and assisting a functioning South African CJS (Ovens, 2020).

Identified Study Themes on Connection of Criminology and Forensics in South Africa Theme 1: Limited prioritisation and slow progress of forensic criminology studies applications in South Africa Therefore, combining forensics and criminology plays an optimal role in catalysing and providing a more vital description of execution crimes, particularly in modern times. The combined “forensics

146  Forensic Justice and criminology” concept is significant from the perspective of the forensic criminologist. It adds a different dimension and uses forensic data within the framework of organised criminal investigations (Van Rooyen, 2008). In their chapter, Williams (2014) considers the vitality and employment of “non-physical evidence” in criminal investigations and believes such evidence can aid forensic investigations. William (2014) further opines that criminology has some essential subspecialties, such as crime mapping and crime analysis, which have a unique combination of criminological ideas, procedures, and government policies. In Van der Hoven (2003), the term “forensic criminologist” describes the actions of a criminologist who gathers, examines, and presents evidence in the interest of impartial proceedings in the legal system. South Africa is spoiled with a vast, highly qualified, and extremely competent forensic science workforce (Bernitz et al., 2014). This line of work is suitably varied; Koomson et al. (2019) argue that it is referred to as an interdisciplinary profession because it embodies multiple disciplines. The complementary nature of each specialty is possible. This is done to provide confirmation and corroboration. As an illustration, consider how a forensic pathologist can determine that poisoning was the cause of a person’s death. A forensic toxicologist or biochemist can further confirm this by using available research approaches—quantitative, qualitative, or mixed-methods approaches—to examine body fluids and organs in accordance with internationally recognised standards. As a result, the criminal investigation process is harmonious (Koomson et al., 2019). Various forensic disciplines, as highlighted by Bernitz et al. (2014), are available in South Africa. Thus, the forensic services in South Africa are offered by experts in different fields such as “forensic entomology, forensic engineering, criminology, questioned documents, computer forensics, forensic nursing, and fingerprint identification (Bernitz et al., 2014: p. 243). Nevertheless, as stated previously, it can be argued that forensic criminology is yet to be developed in South Africa as an autonomous field. Furthermore, forensic criminology is an imperative branch of the South African CJS and elsewhere in the world. Van der Hoven (2006) argues that forensic criminology enables courts to receive valuable information in relation to the causes, motives, and possible future prevention of criminal behaviour. In a similar vein, Hesselink and Booyens (2017) expand in their paper that forensic criminology is also helpful during pre-sentencing evaluation in the corrections component of the CJS. The authors conclude that “forensic criminology” is tasked with determining specific aspects, such as motivations, triggers, causes, effects, contributing factors, and high-risk factors connected to the offender’s behaviour (Hesselink & Booyens, 2017). The prominent South African university, namely the University of Pretoria [UP] (2019), emphasises the importance of forensic criminology in South Africa; it is highlighted that the overcrowded correctional centres require forensic criminology and victim impact statements, and pre-sentencing report phases must consider the expertise of forensic criminologists. Furthermore, according to Labuschagne (2003), the Forensic Criminologist in South Africa can work in two roles in the criminal courts: to a minor degree before determining whether the accused is innocent or not, and to a much higher degree following conviction but prior to punishment. Therefore, this assertion moves the criminologist from theoretician to practitioner. Forensics is used to investigate almost all types of crimes, with different processes for each. For example, burglaries, carjackings, bank robberies, and cash-in-transit heists would involve the use of fingerprint identification, ballistics, and the questioned document components. Therefore, it makes sense to combine forensics with criminology, particularly in South Africa, a country affected by most organised crimes. Murder, attempted murder, rape, indecent assault, and ordinary assault reported cases, amongst others, would demand fingerprint identification in addition to DNA analysis (Omar, 2008). In accordance with forensics as it is used to investigate all types of crime, the authors of this

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chapter believe that criminology, as the discipline responsible for gathering and analysing scientific data resulting from real events to elucidate criminal offences as well as the reaction of society to them (Conklin, 1998), should be used to play an effective role in crime prevention, crime investigation, and crime analysis. To show that these fields are mergeable, some academic institutions in South Africa, such as the University of Johannesburg (UJ) and the University of KwaZulu-Natal (UKZN), offer modules in criminology and Forensics. According to Beukman (2005), in order to provide students with the specific training needed to testify as an expert witness in court, Unisa developed a Forensic Criminology Honours Curriculum. Although qualifications and occupations are offered under forensic criminology in South Africa, it remains incontrovertible that research on combining the two disciplines under the South African criminal justice system is rare. Contrary to this, in other countries, the combination of the two fields is possible and has existed for many years.

Theme 2: The failure to register forensic criminology as a profession in South Africa and related impacts Perhaps more work is needed to strengthen the functions of criminology and forensics in South Africa. It should be noted that the fact that Criminology still needs to be a registered profession (Herbig & Hesselink, 2009) may affect the merging of criminology and forensic studies. Other countries have established independently functioning criminology professions, unlike the situation in South Africa (Mphatheni, Nkosi, Tutu, & Gopal, 2020). Criminology in South Africa is still struggling to define itself (Singh & Gopal, 2010; Hesselink, 2013). Notably, according to Diko, Olofinbiyi, and Steyn (2020), the battle to find the identity of criminology is due to the fact that an array of problems impede criminologists’ ability to perform their duties in the courts and the creation of pre-sentence reports. The stagnant progress concerning the establishment of criminology as an independent profession may affect any progress related to advancing this field. Even scholars are not forwarding any strong argument on criminology, particularly forensic criminology, particularly concerning the definition of this concept in the South African context. In his paper, Van der Hoven (2006) concurs with the assertion that the significance of criminology as a forensic science in South Africa is not adequately explored by the South African CJS. This lack of acknowledgement of criminology as a forensic science in SA CJS could be associated with the courts not being familiar with criminology as a science (Ovens, 2020). Compensating the limited acknowledgement of criminology as the science Van der Hoven (2006) asserts that the judicial system should at least allow the expertise of criminologists to be admissible as an expert witness in serious cases, such as violent crimes. Until now, for more than a decade, Ovens (2020) has bemoaned criminologists not featuring in the South African CJS. Considering the types of crimes perpetrated in the country, the ballistics and biology components are the most commonly used. Sexual assault accounts for 70% of the cases handled by the biology unit (Lucassen, 2008). Trained criminology graduates into ballistics and biology will not only offer expertise in the aforementioned science, but they will also bring about behavioural science to provide human science motives on the occurrence of those crimes that require ballistics and biology components of forensics.

Conclusion As Kopper (2020) alludes, forensic criminologists should have a thorough knowledge of methodical and scientific criminal investigations. This rare knowledge is key to the crime’s explanations and

148  Forensic Justice related complexities. They act in court as expert witnesses for civil and criminal investigations, and they are also required to offer expert statements by prominent media houses to comment on high-profile crimes. Therefore, this profession should be professionalised at all costs. According to Iqabane (2006:1), the conduct of police officials is constantly scrutinised by the public, the courts, and the media in a society where everyone is aware of his or her rights, where crime affects every individual, and where there is an ever-increasing demand for service delivery. A decline in trust and confidence in the police is inevitably harmful to the ability of the government to reduce crime and improve public safety. Firm action is needed to stop the decline in policing standards, which is placing both police officers and civilians at unnecessary risk of injury and death. This article explores the underlying reasons for many of the problems confronting the SAPS and considers how they may be addressed, as Burger (2011) explains. Overall, research informs the theoretical and practical applications of forensic criminologists expertise. In addition, criminologists should be better integrated and included as functionaries within the South African CJS (Ovens, 2020). Therefore, the following concluding remarks are made from the reviewed literature studies, as this chapter refers: • A comprehensive research strategy to be formulated by the South African Department of Higher Education and Training (DHET) to accommodate the professionalisation of criminology and forensics, or forensic criminology. • The forensic criminologists should be understood within the mandate of providing valid and reliable data to the public arena for the betterment of the South African CJS while offering respect to the Constitution of 1996. • South African-authorised qualifications relating to forensic criminology to enhance CJS should be considered when recruiting members to form part of the South African Law Enforcement Agencies. • Individual forensic criminologists should avoid negative attention and exemplify professional ethos based on their profession while giving evidence in court, and they should gain more knowledge in their fields of expertise. • As newly formed agents and servants of the State, they must therefore ensure that their conduct is exemplary at any given time and that they uphold the rights of the public, victims, and perpetrators. To be a good police official requires more than just compliance with the law. It also requires basic human qualities such as good manners, punctuality, discipline, leadership, good interpersonal skills, and a positive attitude. • With their existing knowledge of their profession (Forensic criminology), they should strive to ensure that their professional environment needs constant nurturing and development to achieve the mentioned human qualities. • To become a respected and well-sought-after forensic criminologist, they should at all times project a professional image while noting that they are not above the law. In fact, society demands more from him or her as a result of his or her profession. It is incumbent on every police official to earn the respect of the community he or she serves. It goes without saying that rudeness, lack of empathy, dishonesty, incompetence, and an arrogant attitude will not earn you the respect and credibility you seek. Iqabane (2006). • Improved powers and resourcing for disciplinary bodies, as they are severely underfunded and lack the necessary powers to enable them to fulfil their mandate adequately. • The development of effective responsive systems for the lodging of complaints against forensic criminologists and improvements to the disciplinary systems thereof.

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Exploring the Connection of Criminology and Forensics in the Criminal Justice System Realm  151 47. Thilakarathna, K. A. A. N. (2019). Classical School of criminology and its application in the Sri Lankan criminal justice system. US–China L. Rev., 16, 271. 48. Ubelaker, D. H. (Ed.). (2015). The global practice of forensic science. John Wiley & Sons. 49. University of Pretoria. (2019). Forensic Criminology in South Africa. Retrieved from: https://www. studocu.com/en-za/document/university-of-pretoria/criminology/chapter-15-lectures-7-9-forensiccrim-in-sa/7989787 (accessed 22 May 2023). 50. Van der Hoven, A. (2003). Forensic Criminology (HCRFOR-8). Tutorial Letter 501/2003. Muckleneuk: University of South Africa. 51. Van der Hoven, A. E. (2006). The criminologist as an expert witness in court. Acta Criminologica: African Journal of Criminology and Victimology, 19(2), 152–171. 52. Van der Watt. 2014. Forensic methods and techniques (FOR1501). Muckleneuk: University of South Africa. 53. Van der Westhuizen, MM. (2020). Criminological theories. (142–147) In: C, Bezuidenhout (Ed). A Southern African perspectives on fundamental criminology. Cape Town: Pearson. 54. Van Rooyen, H. J. N. (2008). The practitioner’s guide to forensic investigation in South Africa. Henmar Publications. 55. Williams, A., (2014). Forensic criminology. United Kingdom: Routledge. 56. Wolfgang, M. E. (1961). Pioneers in Criminology: Cesare Lombroso (1825–1909). J. Crim. L. Criminology & Police Sci., 52, 361.

Chapter 9

Ethical, Legal, and Social Implications of the Procedure for Conducting Forensic/Scientific Testing N. Krishna Kumar

Abstract: Cybercrime-related electronic criminal behavior has replaced traditional criminal behavior in today’s society. So, the traditional and out-of-date approach to crime detection is unworkable in the current environment to combat such types of crimes. Forensic science is essential for the detection of these types of modernized crimes. It is crucial that crime-solving organizations have access to all tools at their disposal to enable them to complete investigations more quickly as a result of the continually rising crime rate, and it is necessary to note that forensic science plays a significant role in this process. The offender It is necessary to alter the procedural legislation and the evidence law to require forensic experts to go to the crime site and gather such evidence. Keywords: Measurement, Forensic pathology, Forensic odontology, Forensic science, Medical toxicology, Polygraph (lie detector), Serology, Sex determination, Ballistics, Biological material testing, Chemical examiners laboratory, DNA fingerprinting

Introduction Chemical Examiner’s Laboratories, created in India in the middle of the 19th century, provided scientific aid to the criminal justice administration system in India even before independence. The first chemical examiner’s laboratory was established in Madras in 1849, and it was tasked with investigating a case of deceit involving the inspection of wood. Later, comparable labs were founded in Calcutta (1853), Agra (1864), Bombay (1870), and other locations. The Forensic Science Labs were established in the 1950s after independence, with these ancient institutions serving as their core. In the past, forensic medicine was the first to enter the field since, throughout history, it has been important to determine the cause of death in both natural and unnatural fatalities. In this procedure, a medical professional must do an autopsy in order to identify internal causes such as a punctured heart or lung, hypoxia, internal hemorrhage, etc.

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A medical professional must also express an opinion on whether or not a dead body suffered antemortem or post-mortem injuries. He must also express his opinion on the type of injuries sustained by an injured person as well as how and in what ways they might have occurred. The medical man’s view presumes To quote one in Jaspal Singh v. State of Punjab, the Court observed that the science of identifying thumb impressions is an exact science and does not admit of any mistake or doubt. Similar to this, science may be used to determine whether a document is real or fake, whether it has had additions, alterations, or interpolations done to it, whether prior writings have been removed and new ones added, and so on. In this situation, a handwriting expert is consulted to offer his opinion by comparing the questioned writings with the sample and confirming the suspect’s writings. In cases involving forgeries, expert document inspection cannot be waived. It is interesting to note that a court of law may independently compare the contested signatures or writings under Section 73 of the Indian Evidence Act. Despite the fact that the science of handwriting analysis has undergone extensive research, according to experts, the opinion of a handwriting expert has not yet received formal recognition because the field is still in its infancy. The courts do not give unsupported opinions much legal weight either. The analysis of footprints evolved progressively as well and is now successfully utilized in significant crimes to identify the perpetrators. The police departments of various states have hired “Khojees,” or fingerprint experts, to assist the investigating officers. In the Revenue Intelligence Directorate of the Government of India, a laboratory has subsequently been established in order to identify impurities and determine the source of gold and silver in the smuggling of such items from other nations. The professionals at the security printing press in Nasik are currently handling cases of detecting fake coins or fake money notes. In order to determine whether a piece of cloth found at the scene of the crime matches the accused’s clothing, the textile expert’s opinion is also quite valuable. Such a viewpoint helps greatly in linking a criminal to the crime. Similar to this, laboratory tests can demonstrate whether or not the materials used to create a structure comply with the standards. Once more, in situations governed by the Prevention of Food Adulteration Act, the Public Analyst’s opinion is a requirement to support an adulterer’s complaint. Examining the crime cartridges and pellets found at the scene of an incident, along with the weapon used to commit the crime, can be very helpful in proving an accused person’s guilt in cases involving ballistics. Occasionally, used cartridges are discovered by the police close to the scene of an incident. As a consequence of the post-mortem examination, pellets may occasionally be removed from a dead body or from the body of an injured person. Such items are seized by the police, who also consult experts. In these situations, science assists the cops. Can an expert determine whether a specific gun was used in conducting the crime or not by looking at the crime cartridges? Naturally, an expert must conduct laboratory tests in order to reach this determination. The courts take such opinions seriously if they are supported by strong arguments. It cannot be overstated how important it is for the police officer, scientist, expert, and medical professional to work together in order to get the desired results in proving an accused person’s guilt. It becomes easy for the offender to escape punishment if one of these bureaucrats fails to perform his duties faithfully. In recent years, the DNA test has demonstrated its value in determining a child’s paternity in cases where there is disagreement between the spouses as well as in cases of sexual offenses. A post-independence development is the methodical application of physical and scientific sciences to criminal investigations and court trials. It is crucial for the investigating authorities to apply scientific procedures in the detection of crime because, as industrialization picks up speed

154 Forensic Justice and white-collar crime rises, methods of committing crime are also becoming more sophisticated. Evidence that has been gathered in this manner throughout an inquiry is likely to inspire trust in a court of law. As things are, science is now essential to understanding crime. Men may lie, but professional judgments based on scientific evidence and testing offer trustworthy and reliable proof that a prudent man would find difficult to disregard.

Criminal Investigation Criminal investigation is the process of gathering information about a crime in an effort to learn the truth and identify the perpetrator(s) of the act. Beyond a reasonable doubt, the process must prove the following: the conduct of the crime, the opportunity to commit the crime, the corpus delicti, the purpose, and the modus operandi. In earthly terms, criminal investigation is a multifarious and multidirectional task, involving 1. Identification of individuals, dead bodies, skeletal remains, scene of occurrence, weapon of offence, evidentiary clues etc. 2. Location and identification of corpus delicti. 3. Location, apprehension, detention, and arrest of criminals, suspects, and abettors. 4. Interrogation of victims, suspects, and witnesses. 5. Location and collection of physical evidence. 6. Collection of intelligence, creating network of informants, and surveillance. 7. Linkage to the criminal with the crime, the victim, the scheme, weapon of offence, and the vehicle used in the crime, inter se through sustainable evidence. Only if the investigator is an independent expert in his field will the investigation be successful. He ought to possess the following: • Educated and trained to a high level; driven and committed; persistent; keenly aware; fearless; and mentally and physically sound. • High integrity, dependability, objectivity, and stability; intelligence; a belief in teamwork; cooperation; a go-getter with the public; good communication skills; knowledge of, respect for, and belief in the law of the land; and updating his knowledge of communication methods and crime-handling techniques.

Scientific Criminal Investigation More and more, science is assisting the investigator in his varied investigative tasks. In fact, the societal upheaval is making scientific research approaches necessary. Although they are expensive, governments nonetheless make them available since there are no other options. (s). (a) Knowledge is organized in science. Criminal investigations draw on all academic science fields. From branch to branch, there are differences in scope, intensity, frequency, and utility. Physical sciences, chemical sciences, bio and medical sciences, engineering sciences, psychology, and information and computer technologies are only a few of the many branches of science that are used in criminal investigations. (b) Additionally, over the years, specific specialties have been created, more or less exclusively for the conduct of criminal investigations. They include: (i) Identifying the living and the deceased using portrait parlor, photofit, psychological profiling, voice identification, etc. (ii) Forensic psychology in all of its forms, including lie detection and brain imaging.

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(c) Forensic science has evolved its own specialties in addition to the major discipline it has taken from general scientific subjects. They include police photography, ballistics serology, handwriting identification, toxicology, psychotropic drug analysis, and DNA profiling. The term “scientific criminal investigation” refers to the use of science in criminal cases. Several scientists offer their expertise, but the investigating officer must request their help. The investigating officer must be familiar with the technology behind its harnessing. Simply put, it is not feasible. The researcher’s materials and information are used by the scientist, though. The investigator must be aware of the types of inputs used, the sources of those inputs, how those inputs were processed, and the potentials and constraints of the scientific outputs in order to ensure the chain of custody of the collected information and the clues is connected, authentic, and authentic.

Need Criminal investigations using scientific methods are in more demand every day. The primary causes are: 1. The social environment has drastically changed. The acceptance of corruption and the corrupt, speedier mobile communication facilities, incredibly rapid mobility, and incognito existence in crowded cities have all contributed to the rise of the invisible and untraceable anonymous criminal in the field. 2. The criminal using science is overseas. 3. The conventional methods of proof are becoming outmoded, unreliable, and unclear. The bar for proof is now quite high in the judiciary. 4. Very complicated crimes have been made possible by computers, the internet, and cyberspace. No criminal scenes here! No time limits for crimes! No crimes inside my authority! These are perplexing the usual criminal investigators. 5. Scientific methodologies are effective, certain, focused, quick, verifiable, and impartial. 6. Scientific methods are always available and can be used in any circumstances and research.

Community scenario As India transitions from a colonial subject country to a democratic republic, its society is going through significant social changes extremely quickly. The following are some of the social developments, such as the development of a sizable industrial complex: It is growing exponentially, the transportation infrastructure has undergone a revolution, the population is surging, and urbanization is intensifying. The outdated methods of criminal investigation have been rendered obsolete by these advancements. When the police showed up in Britain, people would ‘confess’ to any crime, even ones they were not aware of, out of fear for them. Now the terror is dissipating. The new generation of administrators, judges, and the general public do not like the use of “Third Degree” procedures that were popular back then and are still used now. True, third-degree procedures still exist, and their abuse has proven dangerous for the offender. Perceptions have evolved as a result of democracy and education. In addition, the criminals have godfathers in the government who can shield or rescue them. The following reasons account for the rapid decline in the methods’ efficacy: Mobility The modes of transportation have changed drastically. High-speed roads, trains, and aircraft have given the offenders wings—but much stronger ones. He might kill someone in Delhi in the evening

156  Forensic Justice and then spend the night in London. Before the crime is detected or suspected, he may also get lost in any other major city throughout the nation in the next two or three hours. Communications Massive advancements in communication technologies are doing wonders for society’s legitimate goals as well as for the criminal element’s malevolent endeavors. The extent to which cellular and satellite communications have changed social interaction is astounding. With the use of modern cell phones, people may have conferences thousands of miles apart and send and receive messages. While the crime may have been planned and carried out in Arabia, it may have been perpetrated in the United States. An airplane bomb can be detonated from anywhere in the world, including from land, the sea, the sky, or satellites. Imagine the carnage on the Kanishka jet! The airplanes crashing into the New York City Twin Towers of the World Trade Center! The cleaning of the London metro! Anonymity Rapid transportation and dense urban populations have made it easier for criminals to avoid punishment after committing a crime. After committing a crime at a certain location, the offender can quickly flee hundreds of kilometers away or hide in a nook of the city. In a modern, always changing culture, nobody would know or even try to know who he is or where he has come from in the new location. He therefore frequently avoids being caught and charged. The person is starting to put herself first. He does not even know his next-door neighbor, which is especially true in cities. Hence, even if the murder takes place in a densely populated location, it might not be discovered until the bodies start to putrefy and release a terrible odor. As this is going on, the offender(s) flee the scene, and the evidence is likewise lost or damaged. Alternatively, it blurs or loses its clarity. Technical knowledge In recent years, the average man’s technological expertise has greatly increased. The thief is utilizing science. The methods used in crimes are improving. So, the investigating officer needs scientific techniques to deal with the contemporary scientific criminal. For instance, the terrorists in Punjab frequently employed night vision devices. Only when night vision equipment was also used to combat the obstacles were the security forces able to handle them. Wide field The range of illicit activity is expanding incredibly quickly. In the past, criminals were typically local, but today, national or even worldwide criminals are a normal occurrence. Smuggling, narcotics trafficking, financial fraud, and forgery are all lucrative and constantly growing industries. In recent years, international terrorism has expanded on a worldwide scale, and the technology that terrorists frequently use is often astounding to the average investigator. The simultaneous attacks on the Pentagon in Washington and the World Trade Center in New York, which resulted in the destruction of property valued at billions of dollars and the deaths of thousands of people, have served as more than just a wake-up call to the world about the dangers inherent in the misuse of science. Outside the planet, cybercrime has spread to outer space. Despite being earthly beings, the criminals use earthly tools and great levels of sophistication to carry out their heinous deeds. The outdated tools and methods are no longer useful due to these significant changes. The gap needs to be filled by other strategies. Traditional modes Eyewitnesses, confessions, approvers, and stock witnesses are the conventional forms of proof and evidence.

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Eyewitness The King’s lynchpin in the criminal court system has been the eyewitnesses. Even now, they are in charge. They will probably be the most relied-upon evidence for some time to come. Yet, the eyewitness stories contain intrinsic flaws, such as poor observational ability, poor recollection, poor descriptive skill, and poor memory, that greatly impact the evidence. The eyewitness account’s actual observable details become highly subjective and are therefore likely to raise suspicions. Eyewitness testimony is very unreliable due to emotional engagement, bias, and influence (greed, fear, fanaticism, and media influence). Confessions Genuine admissions are uncommon. They are frequently obtained by third-degree procedures, which are against the law, immoral, and cruel. Frequently, an innocent individual who may not even be aware of the crime confesses to it. They are not able to be considered. Everyone who is interested in the post-independence region is discouraging them. Approvers Genuine admissions are uncommon. They are frequently obtained by third-degree procedures, which are against the law, immoral, and cruel. Frequently, an innocent individual who may not even be aware of the crime confesses to it. They are not able to be considered. Everyone who is interested in the post-independence region is discouraging them.

Scientific evidence The conventional evidence is losing its effectiveness. It must make way for more reliable evidence, specifically scientific evidence. The proof must be: (i) definite and unquestionable; (ii) objective; (iii) of universal applicability; (iv) persuading; (v) verifiable; (vi) quick; (vii) cost-effective; and (viii) compassionate. Sure and certain A scientific criminal investigation makes use of science to definitively identify and connect the offender to the crime, the victim, the scene, the offender’s weapon, and other evidence. In terms of analytical procedures, science has advanced so much in recent years that it has broken through all physical limitations. Evidence is certain and unquestionable if it has been properly collected, preserved, authenticated, and maintained throughout. Objective Most of the time, tangible artifacts are used in scientific criminal investigations. Instruments with a minimal human element are used to gather information from them (except for the corrupt and the pliable). As no typical human error can be found in the evidence collected in this way by equipment and machines, the conclusions are unbiased. Universal in scope Crime always involves men, things, and circumstances. It is challenging to think of a scenario in which their encounter would not leave traces in its wake. Hence, these traces are always accessible. They can be identified, gathered, and analyzed to create connections between them. Because they can be used in various kinds of situations, scientific approaches have broad applicability. Convincing The scientific criminal inquiry yields material evidence that is so compelling to everyone (aside from those who do not want to be persuaded because it is against their interests) that the science and, thus,

158  Forensic Justice the expert are being accused of “usurping the functions of court.” The proof is provided by tangible objects that can be seen, felt, and/or handled. These facets of the proof inspire the people in question with confidence and persuade them. Also, the materials used in scientific criminal investigations are examined by highly qualified and competent experts. They produce information that any other scientist in the field can validate. The data must be verified, which is crucial. Anytime there is a question regarding the veracity of the information provided by an expert, a second or even a third expert can examine it.

Laboratories for forensic science There are currently roughly twenty well-established forensic science laboratories in India, four of which are under the management of the national government and the remainder by state governments. Moreover, a few laboratories for chemical and document examiners, as well as a laboratory for serologists, continue to operate independently. There are therefore, overall, about 30 forensic science and related institutions in India. A total of 2,000 scientists work daily in all of these organizations to analyze evidence in an effort to advance justice and the truth. As a result, the organized use of scientific methods in crime investigation began in India in 1849. The responsibility of analyzing intriguing and perplexing material submitted to them by perplexed investigative agencies presents another challenge for Indian forensic scientists. The following will give you an idea of the challenges forensic scientists face while attempting to assist the investigative authorities in finding the offender. A female follower of an Iskon Sadhu was reportedly sexually assaulted. As a result of these accusations, he later committed suicide. In the meantime, the vaginal swab was submitted to the CFSL (Kolkata), where forensic examinations revealed that the semen there did not belong to the Sadhu, who turned out to have been the victim of an Iskon member quarrel. To identify the victims who were burned alive, the CFSL (Kolkata) received two charred skeletons from Haryana. Through DNA fingerprinting, the victims’ identities were determined. Similar to how a DNA profile created with the aid of a vaginal swab helped to identify all eleven rapists of a woman in Meghalaya. These are only a few examples of cases where forensic science was essential to resolving crimes. In Mukhtiar Singh v. State of Punjab (AIR 1971 SC 1864), the Supreme Court accepted the forensic science expert’s evidence (produced by the prosecution) that the fired cartridges and missed cartridges found at the site of occurrence were fired from the rifle recovered. In Raghbir Singh v. State of Punjab (AIR 1976 SC 91), the Apex Court said that the scienceoriented detection of crime is made a massive program of the police, for in “our technological age, nothing more primitive can be conceived of than denying the discoveries of science as aids to crime suppression, and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only, thereby discouraging liberal use of scientific research to prove guilt”. In Kashinath G. Jalmiv. Speaker (AIR 1993 SC 1873), the court held that the evidence provided by the forensic science laboratory was reliable. In State of Karnataka v. Bhoja Poojari (AIR 1997 SC 3812: (1997) Cri.LJ 4420), a forensic scientist also identified the decomposed body of the victim by skull superimposition. That evidence was held to be reliable by the Apex Court. Similarly, in Ammini v. State of Kerala (AIR 1998 SC 260), the court decided that a report from the Forensic Science Laboratory that was signed by both directors was admissible in court. In Pawan Kumar v. Haryana (AIR 2001 SC 1324), forensic evidence was accepted as reliable for convicting the accused of bride burning. As a result, the court has demonstrated a favorable attitude toward using experts’ opinions to decide matters.

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It is Crucial to Apply Forensic Science This study emphasizes the critical role that forensic science has played and continues to play in bolstering efforts to combat crime. It also demonstrates the enormous potential for scientific advancement in the management of the criminal justice system. However, none of these statements hold much weight because the reality of forensic science in our nation does not provide a particularly positive picture. With the steadily increasing crime rate, Forensic science plays a crucial role in this process, so it is essential that the organizations responsible for investigating crimes are provided with all the tools at their disposal that might help them crack cases faster. Yet with only four CFSL and maybe twenty FSL, this sounds like a difficult assignment. While the small number of forensic labs is a component of the issue, the fundamental issue is that there is a severe manpower shortage. The demand for forensic scientists will rise with a high crime rate, and if there is a staffing deficit, the quality of work will also decrease. Lack of funds is also another factor that affects the quality of forensic work done in this country. Since the CFSLs fall under the Ministry of Home Affairs, Delhi’s consent is required for each project’s approval. Usually, it takes 2 to 3 years for this permission to arrive. The project would have become outdated by then, and the researcher would have grown disinterested. Therefore, there is little motivation to keep intelligent individuals in this profession. A lot of bureaucratic red tape is stifling the potential for growth and innovation in the field of forensic science because of the low pay scale, the complicated promotion procedure, and the overall low pay scale.

Forensic crime scene investigation The “Crime Scene” is where crime, clues, and criminals all come together. It is the scene of criminal activity. Because it will establish and prove what occurred at the time of the offense and will help to identify the criminal based on the crucial evidence obtained at this location, it serves as a starting point for the criminal investigation and thus contains recordings of past events. A crime scene investigation is a drawn-out and laborious process that entails meticulously recording the circumstances at the scene and gathering pertinent evidence that may shed light on what occurred and identify the perpetrator. The scene of the incident cannot be confined to a single location. Depending on the type of crime, there may be a different number of crime scenes. Crime scenes can be classified as primary, secondary, and frequently tertiary. For instance, a criminal may kidnap a victim at one location (the primary crime scene), transfer the victim to a second area (the secondary crime scene), then perform another crime at a third location, where they will eventually dispose of the body. The Theory of Transfer or Exchange is one of the main investigative principles that the investigator must adhere to when examining a crime scene. According to Locard’s theory—that there is no such thing as a perfect crime—the suspect of a crime will leave evidence that he was there, and he will also take evidence with him, resulting in a cross-transfer of evidence (also known as the Locard’s Exchange Principle). If the scene, victim, and suspect are properly collected and examined, this may present an opportunity to connect the suspect to the crime or scene. So, a proper crime scene search is required for a successful investigation, which heavily depends on the treatment of the crime scene and the processing of the evidence. The retrieval of tangible evidence at the crime site is when the role of forensic scientific services begins. It continues with its study, evaluates the outcomes in a lab, and presents the conclusions to judges, prosecutors, attorneys, and other parties in need of factual information.

160  Forensic Justice Hence, the evidence collected from the crime scene is used in forensic science. The caliber of the evidence gathered at the crime site is what makes any criminal investigation and prosecution successful in this regard. The possibility of a conviction increases with the amount of evidence gathered.

Physical evidence: It never lies Physical evidence is anything and everything that can be used to support or refute a fact that is being investigated, assess the sequence of events that occurred at the time of a crime, or simply establish a link between a crime, its victim, or its perpetrator. Only if he correctly identifies the physical evidence at the site will an investigator be able to use it. It plays a major role in successfully solving the case because it is a vital link in locating the culprit. Hence, a thoughtful, rigorous, and objective approach should be taken when dealing with physical evidence. If they are handled correctly and analyzed, they can provide a true account of the crime scene. Although initially unimportant, physical clues may end up being essential to the case’s successful conclusion.

Methods of crime scene investigation The precise procedure that will be applied at each crime scene is impossible to describe to someone. Since every crime scene is unique, processing the scene might call for a different strategy. Nonetheless, there is a fundamental crime scene protocol that must be followed at all times.

Securing the scene According to Locard’s Exchange Principle, anyone accessing a crime scene has the ability to change the evidence there because of the cross-transfer of evidence between the victim and the perpetrator as well as the scene itself. The first officer to arrive at the crime scene is therefore responsible for taking action to protect and secure not only the immediate area of the crime but also the area to the greatest extent possible, including potential entry and exit points. As a result, it is necessary to block off an area larger than the initial scope of the crime scene with the intention of being able to reduce the boundaries in size if necessary. Securing the site prevents people from leaving or entering before authorities have a complete description of the scene, which aids in the identification of prospective suspects and witnesses as well as the preservation of crucial evidence.

Recording the scene The goal of this phase is to preserve a record of the crime scene in its original form that will make it simple to recreate in the future an exact perspective of the scene or of the evidence that is present, aiding in further investigation and, if necessary, being presented in court. The finest ways to record are through photography, sketching, and taking notes.

Photography There is no better method to tell the tale of a crime scene than with a picture. In general, crime scene photography aims to capture a precise, in-depth, and genuine image of the situation. Only when photography is taken in its natural state will it produce useful information. Consequently, before touching or moving a single piece of evidence, images of everything should be taken from all relevant angles, unless otherwise required in the case of a harmed person. The goal should be to capture as much relevant information as possible to help the viewer comprehend where

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and how the crime was committed. To show how one might gain access to the crime scene, every point of entry and exit must be captured. The victim’s posture and placement in relation to the entire scenario must be captured on camera from a variety of angles. Evidence such as any injuries to the body and any nearby weapons should also be taken into account.

Sketching Proper scene sketching should be used to support photographs as one technique of documentation. The objective is to show the general layout of the crime scene or to pinpoint the precise location of the dead victim or of the evidence within the crime scene. Hence, a sketch of the crime scene that includes the location and distance of all relevant evidence might be a useful type of documentation. It may contain information on the weapon’s proximity to the victim, the height of the door frame, the distance from the window to the door, etc.

Interview with a witness Witness statements are taken as part of the investigation of a crime scene in order to verify the physical evidence gathered there. The investigator should hunt for potential witnesses who could aid in the investigation and offer further information. They should be questioned about all they saw during the incident as well as the criminal’s identity.

Search for evidence Crime scene searches are conducted to locate and preserve the evidence as well as gain some insight into the events that took place. Although recovering physical evidence during an investigation is one of the most crucial aspects, it is also crucial to conduct a methodical search to make sure that no physical evidence is missed. The sort of crime, its location, scale, and the presence of others will all influence the search techniques used. The line or strip, grid, spiral, zone, and wheel approaches are the ones that are used in searches the most frequently. Line: Typically used to fill substantial open spaces. Usually an arm’s length apart, searches line up parallel and move along the tracks in a straight line from one side of the area. Grid: A strip search variation that is also carried out backwards. It takes a lot of time, but it works. Zone: The crime scene is divided into a series of compact squares, or zones, and each zone is carefully scrutinized. Spiral: The investigation may begin at one of the spiral’s outer points and proceed in a clockwise direction until it reaches the location of the crime. Wheel: The scene is designated as a circle, and the search begins in the center and moves outward around the circle’s radii. Each suspicious object found while searching the scene should be considered evidence unless otherwise proven. To prevent contamination of the site, precautions, including donning gloves and protective gear, should be taken. It is important to take control samples in addition to the evidence gathered.

Collection and packing of evidence One of the most important phases of the crime scene investigation is this. Every piece of physical evidence should be handled and packed with care, keeping in mind its evidentiary significance. If the

162  Forensic Justice evidence is tampered with or destroyed while being processed, the laboratory staff cannot use it, and it cannot support the ongoing investigation. So, it would be beneficial if the procedure for gathering and packing physical evidence was designed to preserve its integrity, allowing the evidence to be retained in its original state as discovered at the crime scene. Depending on the type of evidence and the substrate it is located on, the collection and packing of the evidence vary. If the size and circumstances allow, the full item should be collected if the evidence is fragile or readily lost. To prevent cross-contamination, each unique item or comparable object collected at several locations must be put in separate containers. Each piece of evidence that is gathered needs to be labeled with the date, place, object, and case number for easy identification. The investigator should sign it and then seal the container. The following are some methods for gathering and packing evidence that are frequently encountered: (a) If there is a blood stain on a large object, wet a sterile swab with distilled water and swab the tainted area. Swabs from both the blood stain and the nearby region should be taken, and both should be allowed to air dry. Avoid using plastic containers when packing; use solid containers instead. If there is a bloodstain on clothing, the stain should be cut out, let air dry, and then stored in paper bags. (b) Seminal Stains should be wrapped in paper bags and allowed to air dry completely if they are moist. (c) Hair and fiber should be carefully examined, and whenever feasible, the object on which hair and fiber are found should be submitted. When picking individual fibers or hair, use forceps and tweezers to pick them up and store them in separate envelopes if possible. Combed and pulled hairs from the head and pubic area should be used as control samples for hair. These hairs need to be contained in an envelope or a piece of clean, folded paper. (d) Documents should be stored in plastic sheet protectors, handled with gloves, and care taken to avoid marking, altering, or defacing them. (e) Never use loose envelopes for collecting glass particles; always use forceps and store the particles in stable containers. (f) Avoid exposing damp clothing or materials to high temperatures. Hanging the wet item on a spotless hanger or placing it on a spotless surface will allow it to naturally air dry. Avoid using plastic bags while packing the garments; instead, use a fresh paper bag. (g) As little contact as possible must be made with the items that have fingerprints and imprints on them. In addition to being photographed, plastic impressions can also be lifted and cast using a casting process. For latent fingerprint impressions to be visible to the human eye, some form of developing procedure must be used. (h) Bite marks are frequently discovered in sexual attacks and can be used to identify the perpetrator; for this reason, they should be photographed from all relevant perspectives. If the bite mark has left an imprint, it could be possible to create a cast out of it. I Paint shards ought to be gathered in a paper bundle and put inside an envelope.

Forwarding evidence to FSL Following collection, the packet must be properly sealed by the investigator, and a sample of the seal imprint must be sent to the laboratory with the exhibits by a designated messenger. A courtauthorized letter directing the laboratory to examine the exhibits should be included with it. The exhibits should be delivered with control samples as well.

Maintaining the chain of custody Every time evidence is introduced into a courtroom as an exhibit, continuity of possession or chain of custody must be proven. The court will need evidence showing that the evidence gathered during an investigation and the evidence eventually presented to the court are identical. A chain

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of custody must be upheld in order to demonstrate that the integrity of the tangible evidence has been maintained. This chain demonstrates who interacted with the evidence, when, and under what conditions.

The Role of Forensic Scientist in Detection of Crime Criminalistic science can be used to define forensic science. In other words, forensic science can be defined as the scientific study of or inquiry into crime. Our society’s structure has altered to keep up with daily progress along with science and technological advancements. According to the criminal, they frequently employ numerous methods to commit a variety of crimes in contemporary society. So, it has become difficult for law enforcement organizations to assess the likelihood of crimes. Forensic science becomes a crucial requirement on the side of the investigating agency for such checks. Given the demand for the significance of forensic science, Gov. In the various regions of India, a few forensic science institutions have been established. Similar to how the U.S. Many other states have also set up forensic science labs. The government acts similarly. a forensic science laboratory in Guwahati as well as in Assam. The Assam Forensic Science Laboratory was created in 1967 and is a scientific organization within the Police Department. This lab was built following the blueprint of the ideal forensic science lab, and it includes eight significant scientific disciplines, including chemistry, physics, biology, serology, ballistics, toxicology, questionable documents, and photography. The application of tools and methodologies from basic science for diverse analyses of evidence linked to crimes is all that constitutes forensic science in practice. Since its inception, the scientists at the Forensic Science Laboratory in Assam have provided the investigating authorities with important assistance in a variety of ways to advance the cause of justice. By providing objective and conclusive evidence, a forensic scientist’s scientific inquiry fills in gaps or reinforces weak points in the chain of investigation, assisting the court in reaching a decision about the culprits and their punishments. The area of research or investigation for forensic scientists is extremely broad, varied, and unpredictably complex. In general, the work that forensic scientists conduct is extremely dangerous, taxing, and risky. Because they have to deal with evidence from crimes of all kinds, including murder, rape, blood, saliva, firearms, ammunition, explosives, and explosive substances, as well as alcohol, hashish, opium, adulterated gasoline, kerosene, diesel, and other chemically altered vehicles used in accidents and different kinds of paint. Weapons used in burglaries, arsons, etc.; various poisons; poisonous compounds; hair; skeletal remains; and other plant or animal remains In addition to these, forensic experts must also look over documents with fake signatures and analyze all exhibits’ photographs. Each piece of tangible evidence uncovered during an inquiry must be carefully evaluated to confirm or deny its connection to a specific crime or offender. Practically speaking, forensic scientists must evaluate the evidence related to crimes of all types and in all Relevant sectors. P.C. and further pertinent acts and national laws. The restricted quantity and amount of resources that forensic scientists must deal with are typically taken or left behind by criminals, unlike other research and analytical materials. Forensic scientists are frequently called to the crime scene to help the investigating authorities identify clues through scientific analysis in order to better collect exhibits for a variety of research.

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Role and nature of forensic scientists in different branches in connection with their respective and specialized fields of work Let us start off by talking about the forensic physicist. The scientists in this section typically evaluate the physical evidence that is collected at the crime site. This branch also conducts comparative analyses of various tool impressions and marks, among other things, employed in criminal activity. The scientists in this area can also identify forged engine or chassis marks or restore a deleted number on metallic dates. These specialists can investigate paint and glass analysis as well as stamp impressions from the forest authority to establish the facts necessary to identify perpetrators and crime scene clues. Second, forensic chemists are equally busy identifying crime scene evidence and identifying criminals using a variety of analytical techniques. For instance, the purity of gasoline, diesel, and kerosene must be determined from samples by the forensic chemist. They must also analyze explosives, opium, ganja, and other compounds, as well as judge the quality of alcohol and other substances. They must establish facts from their numerous ways of analyzing, on the basis of which the investigating police can find hints of a specific crime. Examining biological exhibits related to crime is another crucial task for forensic biologists. The task of analyzing the biological exhibits, which range from microorganisms to higher plants and animals, as well as their byproducts and parts, falls to the biologist. A biologist must ascertain the deceased’s sex, origin, stature, and age from the skeletal remains. In order to aid the investigative authority in reaching a decision regarding a specific crime, he must identify the skull using the superimposition method. The biologist is responsible for determining the cause of death in cases of suspected deaths. In situations where plant poison is used to commit crimes, he is also required to assess various toxic plant materials. A serologist is equally crucial in obtaining evidence related to numerous crimes. The serologist is responsible for determining whether or not a particular weapon used in a murder involved a knife or another type of weapon. The results of a serologist’s examination can provide the investigating officer with a clear hint in a specific case, on the basis of which the officer can identify the perpetrator of the crime. By testing the relevant blood group, the serologist must prove the facts in cases of disputed paternity. A ballistic expert is the only person who can determine whether a specific firearm was used during a crime, according to the forensic science branch of ballistics. He must also look into the sorts of weapons and ammo used in a crime. Also, he must establish the truth regarding firing ranges, distances, directions, and angles. The investigating police can reach a reasonable conclusion regarding a specific crime after consulting a ballistics specialist. In addition to looking at the various firearms and ammo, a ballistics specialist will also look at the explosives, which are now frequently used to perpetrate horrible crimes. A toxicologist figures out the crime’s hints when poison is employed. A toxicologist examines the viscera and other pertinent materials in such cases, whether the suicide was accidental or planned, in order to determine the type and concentration of poison used. The toxicologist’s report typically contains crucial information that the investigating officer can use to identify the perpetrators. In a similar manner, the Court receives affirmative evidence to support its conclusions in any given case. The many kinds of documents directly or indirectly related to a case of forgery are examined by a document specialist. The forgery cases may take many forms, but the handwriting expert examines each one. The investigating agency can undoubtedly identify the true offender in a given case from the document examiner’s report. A handwriting expert frequently offers their opinion on typed

Ethical, Legal, and Social Implications of the Procedure for Conducting Forensic/Scientific Testing  165

papers, the time of writing, and the age of the ink used to write a dubious document, in addition to falsified signatures or documents. So, a handwriting expert’s testimony aids the court in reaching a decision that serves the interests of justice. Personnel from the photography section, like those from all other scientific fields, are crucial in identifying crime clues and identifying culprits. The forensic photographer creates the photographic evidence that establishes the relationship between the different hints of a crime. Only photographic evidence can be used to establish the facts of erasure with any level of accuracy in cases where those facts are at issue. By doing so, they assist the courts in rendering a conclusive judgment on the case. From the explanation above, it can be inferred that the forensic scientist has a responsibility to uphold justice in society due to the diverse nature of his work. In actuality, forensic scientists are essential in both reducing the likelihood of crime and identifying the underlying reasons for crime in our society.

Forensic photography Introduction: Importance of forensic photography Unidentified dead bodies are occasionally discovered by the side of the road, in impenetrable forests, in deep ponds, or even on railroad tracks. On a bare outlook, it is difficult to determine the reason for death. In many circumstances, it can be challenging to determine whether a death is normal or atypical. The deceased body’s position will not stay in place indefinitely. The dead body will be transported for a post-mortem examination after the police arrive and conduct the required action. Nevertheless, what was the victim’s location at the crime scene, what was the circumstantial evidence, and was there any proof linking the victim’s death to the crime? All of these issues have a significant impact on the investigation of crimes. We must use photography to capture all of these events permanently. A clear-cut picture of the crime scene can be seen thanks to pictures of the victim shot from various angles. Photography captures a more comprehensive overall image of the crime scene over a longer period of time. After a given amount of time, no proof, i.e., circumstantial evidence, will be accessible since the deceased corpse will be cremated or buried in accordance with the customs of various societies. The entire crime scene is surrounded by red tape in order to prevent any disturbances. The police show up at the scene. They capture images of the victim and its surroundings from various perspectives. These images can be kept for a longer time, have a significant impact on the criminal investigation process, and will be very useful in a criminal trial. The crime scene’s configuration, the dead person’s dimensions, the location of any injuries, the type of clothing the dead person was wearing when they died, and many more clue materials that the investigating officer missed are all captured and documented by the photography system. It is always beneficial and serves as a crucial road map for criminal investigations. This makes forensic photography the “Heart of Criminal Investigation.”

Application of photography in criminal investigation In criminal investigations, photography is used in the following situations: (1) photographing the crime scene; (2) photographing an unidentified dead body; (3) photographing acts of mass violence; (4) photographing stolen property or seized goods; (5) photographing finger impressions; (6) photographing suspected documents; (7) photographing suspicious documents; (8) photographing documents superimposed with photographs; and (9) photographing surveillance footage.

166  Forensic Justice

Photographic technique To capture all the details of the murder scene, a detective must take numerous photographs from various perspectives. He must snap pictures of the area, the victim, and the victim’s surroundings from various perspectives in order to capture all potential photographic evidence of the crime. He must use close-up and occasionally long-range photography for this reason. Examples include: 1. Photographs of the dead corpse and its environs are taken from various perspectives in all homicide investigations. (a) Arson Cases: In arson cases, all photos that can be taken of the burning fire are taken, from the beginning to the end. (b) Instances involving motor vehicle accidents: The crime scene is photographed right away. Photographs of the car, its damaged parts, broken glasses, skid marks, and tire marks are also shot from various angles. (d) Theft cases: In the photos, the thief ’s entry into the premises, his theft, and his exit from the premises are all documented. Several covert video cameras are kept there to capture the 24 hours of activity at the crime scene. (e) Criminal Identification: The identification of the accused is helped more by forensic photography. The accused or suspects frequently adopt alternate names depending on where they are. It becomes very tough to identify them in such a setting. Yet, taking a picture of the suspect makes it easier for the investigating authorities to find them because different people may be familiar with the image and can use it to recognize the suspect. (f) Identification of stolen goods: Since various items, including televisions, ornaments, boxes, watches, and other items, are frequently taken in the course of theft, photographs of these items are frequently taken and utilized as evidence in court proceedings. (g) Photography of Rioting, Mass Violence, etc.: Rioting, mass violence, etc. occur frequently. In several fields, photography makes a significant contribution. It can be quite challenging to determine who is hurting who with what weapon and who is the victim of such offenses in the middle of a large gathering. Yet, the crime scene can be portrayed by pictures taken from various perspectives and corners. Many significant locations have video cameras that are operational around the clock so that the area can be seen and captured on film. These cameras capture footage of the crime or offense while it is being committed. (h) Photos of fake documents: Photography has a significant impact on identifying the perpetrator and spotting forgeries in suspect papers. Here, cutting-edge forensic methods including x-ray, infrared, and ultraviolet radiation are used. (i) Photographing hands and footprints, etc.: The offenders frequently leave numerous clues at the crime scene, including fingerprints and foot prints. Such finger prints or foot prints are photographed. (j) Photographic Skull Superimposition: A substantial contribution of photography to the identification of human skulls In some cases, a specific person may go missing for a lengthy time before being discovered. There is a picture of the individual. It is possible that the person was murdered and that, in the graveyard, a skull was discovered that was thought to belong to the missing person. The human skull may be assumed to be that of the missing person if the skull’s image is placed over that of the missing person and the anatomical details of the two images match and coincide. (k) Photography in a laboratory: In the laboratory setting, photography of forgery, tool marks, and forensic ballistics is especially useful. The palm prints of dangerous criminals

Ethical, Legal, and Social Implications of the Procedure for Conducting Forensic/Scientific Testing  167

are saved and photographed. They are very useful to such offenders in detecting crimes in the future. (l) Photographs used in surveillance: Such images are captured using covert camera techniques. Most of the time, offenders are unaware that their illicit actions are documented. In cases of bribery, corruption, and many other criminal offenses, this kind of photography is used. When there are unidentified dead bodies, photography is used. (m) Photographs of unidentified deceased bodies are typically published as an announcement in the Police Gazette.

The ramifications of photography in law If the presence of the accused cannot be guaranteed, Section 9 of the Evidence Act allows the identification of an accused by photograph. Photos can be used correctly for identification, but they cannot be used to prove parentage by demonstrating a likeness in features. A family resemblance of this sort or facial likenesses in a photo cannot be used to determine parentage. Witnesses may use photographs to locate missing people. To identify the perpetrator, the authorities may present the witnesses with a variety of images of various people. But the use of a photo before identification for identification purposes makes it a farce.

Newspaper photography is not the work of an investigating agency A photograph of an accused person should not be presented to the witnesses in order to identify them. Yet, the Court will have the discretion to determine whether a witness’ testimony regarding identification was actually influenced by the publication of the accused’s photograph in a newspaper. So, his identification-related evidence cannot be completely discounted. The mere possibility that a witness may have unintentionally come across images of an accused person in a newspaper, especially in the absence of proof about newspaper titles or descriptions, cannot invalidate the witness’s identification of the offender.

Photographic superimposition In Ram Lochan v. State of W.B. (AIR 1963 SC 1074), the superimposition of a photograph of the deceased over the skeleton discovered to prove that the skeleton was that of the deceased is relevant under Section 9 of the Evidence Act, 1872.

Identification by photograph In Umar Abdul Sakoor Sorathia v. Intelligence Officer (1999 Cri.LJ 3972: AIR 1999 SC 2562), it has been held that identification by photo is admissible in evidence. In State of Gujarat v. Bharat alias Bhupendra (1991 Cri.LJ 978), it has been held that a photographic picture cannot be relied upon as a proof in itself of the dimensions of the depicted object or objects and cannot be made properly available to establish the relative proportions of such objects except by evidence of personal knowledge or scientific experience to demonstrate accurately the facts sought to be established.

Conclusion As a result, the term “forensic science” refers to the use of scientific knowledge for the administration of justice. All applications of science are covered by this phrase. Howsoever it may seem audacious

168  Forensic Justice and strange at first, practically all of them could offer material assistance and improve assistance in the administration of justice. Although forensic science is a significant area of law, there is currently no legislation that governs forensic scientists’ access to crime scenes. Even the National Human Rights Commission’s rules, while they offer guidelines for post-mortem and autopsy, do not give any precise instructions about the forensic scientist’s assessment of the samples. Section 45 of the Indian Evidence Act establishes the admissibility of an expert’s opinion as evidence. Hence, in order to advance forensic science in the administration of criminal justice, we must make some dramatic changes. Giving the forensic science laboratories the status of an independent scientific body would be one of the first steps toward putting them on par with other scientific institutions like DRDO and CSIR. As a result, the directorate would have more discretion when approving projects, and forensic experts would receive the same respect as other scientists. Also, this will remove the issue from the bureaucracy typical of all official government operations. The proposal will include pertinent evidence that would help triers of fact reach the most accurate results, decrease bias in favor of certain classes of litigants, and reduce the confusion that results from applying scientific norms to law, despite the fact that there are significant differences in scientific competence between juries and scientists. Changing the admissibility standard to one that is solely relevant-based and adding jury instructions on reliability would be an improvement over the current system, even though it is likely that nothing will be able to resolve the issue of the conflicting norms that arise when science is introduced in the courtroom.

Suggestions There ought to be an increase in forensic awareness across the nation. There should be forensic education for the general public, police officers, attorneys, and judges. It is time for forensic science to be included in the LL.B. curriculum. A competent and effective mechanism should be established to supervise and inspect the laboratories in order to provide the “future lawyers” with the details of the subject. The latter should continue to be flawless because the handling of samples and evidence with carelessness and negligence could prove disastrous. It is important to keep an eye on the ethical, legal, and social implications of the entire procedure for conducting such forensic/scientific testing.

References 1. Anoop K. Kaushal, Medical Negligence & Legal Remedies (3rd Edn),Universal Law Publishing Company Pvt. Limited. New Delhi. 2. B. M. Gandhi, Law of Tort(1987), Eastern Book Company, Lucknow. 3. Dr. Lily Sri Vastava, Law & Medicine(2013), Universal Law Publishing Co., New Delhi. 4. Jackson & Powell, Professional Negligence (2002), Sweet and Maxwell. 5. Justice K. Kannan, A Text Book of Medical Jurisprudence & Toxicology (2013), Lexis NexisButterworths, Wadhwa Nagpur, India. 6. Keith Simpson, Taylor’s Principles and Practice of Medical Jurisprudence (12th Edn), J&A Churchill Ltd., London. 7. K. P. S. Mahalwar, Medical Negligence and the Law, (1991), Deep and Deep Publications, New Delhi. 8. M. N. Shukla, The Law of Torts (1990), Central Law Agency, Allahabad. 9. Paras Diwan&Virendra Kumar, Directive Principles of Jurisprudence (1982), Seema Publishing, New Delhi. 10. Parekh & Singh’s, Law Relating To Crime Investigation & Medical Science (2007), Dwivedi and Company, Allahabad.

Ethical, Legal, and Social Implications of the Procedure for Conducting Forensic/Scientific Testing  169 11. P. C. Dikshi, HMV Cox’s Medical Jurisprudence and Toxicology (2002), LawBook Company (P) Ltd., Allahabad, India. 12. Philip S. James & D. J. Latham Brown, General Principles of the Law of Torts (4th Edn), Butterworths, London. 13. P. K. Majundar, Law of Consumer Protection In India (2003), Orient Publishing Company, New Delhi. 14. Professor Bernard Knight, Cox’s Medical Jurisprudence and Toxicology (7th Edn), Lexis Nexis Butterworths, Wadhwa Nagpur, India. 15. P. S. Atchuthen Pillai, Law of Torts (2002), Eastern Book Company, Lucknow. 16. Rattan Lal&DhirajLal, The law of Torts (2005), Wadhwa Publication, Nagpur. 17. R. F. V. Heuston, Salmond, TheLaw of Torts (17th Edn), Sweet and Maxwell. 18. R. N. Saxena, Indian Penal Code (2007), Central Law Agency, Allahabad. 19. Shweta Thakur, Vikram Singh Jaswal, Medical Negligence in India(2013), Regal Publications, New Delhi. 20. T. D. Dogra, Medical Jurisprudence & toxicology (2013), Delhi Law House, New Delhi. 21. V. Balakrishna Eradi, Consumer Protection Jurisprudence (2005), Lexis Lexis Butterworths, Wadhwa Nagpur, India. 22. W. Wyatt-Paine, The Law of Torts (7th Edn), Sweet and Maxwell. 23. Y. V. Rao, Law Relating to Medical Negligence (2010), Asia Law House, Hyderabad.

Chapter 10

Strengthening Critical Lens in Forensics to Address Sexual Violence Ruchi Sinha and Suneha Kandpal

Abstract: A forensic examination of patriarchy requires a thorough examination of the evidence (manifest and latent) to explicate how a crime is an outcome of gender stereotypes based on unequal power structures. This chapter argues for inculcating a critical lens into forensic studies and, after that, investigation. It would briefly analyse select policies, laws, media narratives, and SC judgements to locate patriarchal and critical lenses. Established protocols and procedures for evidence collection, analysis, and interpretation are designed to minimise the impact of personal biases as they ensure that evidence is examined systematically and reliably. However, protocols need to acknowledge the role of personal biases, cultural beliefs, et al., which neutralise the progressive move of most protocols. The chapter, thus, argues for the importance of imbibing a critical lens for forensic teams to maintain objectivity in their work. A critical forensic lens is critical in gender crimes where justice systems fail to recognise the ubiquitous mechanisms of patriarchy, which have severe consequences for the victim and hinder their journey from victims to survivors. Keywords: Gender justice gaps, Forensic justice, Victim-survivor, India, Kaleidoscopic justice

Introduction Gender inequality, stereotypes, and insensitive biases impact women’s experiences during investigations and legal proceedings, which impact women’s access to justice. Over the past two decades, the authors’ work with women facing sexual violence, whom they have assisted in accessing the justice system, has repeatedly found women facing many credibility issues while reporting crimes, particularly those of a sexual nature. They experience many stereotypes and biases, often leading to their case or complaint being dismissed. This, they feel, results in an investigation bias as forensic investigations are conducted in a way that lacks understanding or sensitivity towards the individual experiences and needs of the woman/girl, resulting in inadequate evidence collection, insensitive questioning, or a failure to consider gender-based violence as a motive. As a result, gender stereotypes and societal attitudes lead to victim blaming, where women are held responsible for the very crime committed against them. This further gets amplified in legal proceedings, where women

Strengthening Critical Lens in Forensics to Address Sexual Violence 171

are potentially discouraged from pursuing their cases or their credibility is questioned at every stage. This stereotyping and gender insensitivity manifest at the policy level as insufficient support services. Further, access to support services such as trauma-informed care, counselling, or legal aid, which are crucial for women to fight cases, is not accessible. It gets even worse when the human resources rendering the services are gender-insensitive. While this exacerbates the challenges faced, the challenges are further magnified for women from marginalised communities. Thus, a lack of gender diversity within the justice system, law enforcement, legal professionals, and forensic experts limits the understanding and consideration of gender-specific issues and contributes to multiple biases and inequalities. Many studies have pointed out the inherent prejudices due to the systemic gender bias in the structures manifested by human resources across the justice system. The studies have also reported that women face harsher punishments or may even be subjected to leniency due to stereotypical views of their roles as caregivers or their perceived vulnerabilities (Koenig, 2018; Geppert, 2022). Sexual violence, which refers to any sexual act or behaviour that is unwanted or against a person’s will, encompasses a wide range of actions that can be physical, verbal, or psychological. It is characterised by the absence of consent or the inability to consent due to various factors such as age, manipulation, intoxication, coercion, or force. Sexual violence severely violates a person’s bodily autonomy, dignity, and human rights. It causes profound physical and psychological harm, including physical injuries, sexually transmitted infections, unwanted pregnancies, post-traumatic stress disorder (PTSD), depression, anxiety, and other emotional and mental health issues. Although there are many different types of sexual violence, including sexual assault, sexual harassment, forced prostitution or sex trafficking, child sexual abuse, incest, and any other non-consensual sexual act, this chapter concentrates explicitly on rape. Mainstream civil society organisations have pushed for contextualising sexual violence as a part of political struggles and emphasising the links between gender subordination (socio-economic, legal, and political) and violence. The International Day for Elimination of Violence Against Women and Girls (VAWG) campaign was launched in 2008 to prevent and eliminate violence against women and girls worldwide, calling for global action to increase awareness, promote advocacy, and create opportunities for discussion on challenges and solutions. This campaign to bring VAWG into human rights perspective also intersected with the movement at domestic and international levels to get the public health and medical establishments to take VAWG, including sexual violence, as a serious health issue (UN, 2008). Thus, justice for Women, as the authors contend, requires a critical lens to address the genderspecific challenges and biases within the justice system. These challenges are an outcome of patriarchy, a sociocultural system that organises and prioritises male power and privilege over that of women (Becker, 1999). The critical lens is vital to elucidate how patriarchy leads to manifestations of gender inequality and stereotypes, which lead to systemic biases—these impact women’s experiences with forensic investigation, legal proceedings, and access to justice. To identify and rectify women’s barriers and injustices in accessing equitable treatment for justice, subjecting patriarchy to forensics is essential.

Body as a site of justice? The objectification of women, their sexuality, gender, and body are a complex interplay of powerful forces at the basis of women’s subjugation in modern society (Thapan 1995). Owing to rigorous gendered socialisation, the female body is perceived essentially for procreation and is prepared mainly for a life of compulsory heterosexuality and inevitable motherhood (Thapan, 1995). The

172 Forensic Justice female body, thus, becomes the site for explicit male dominance and control, which asserts itself in different ways (Thapan, 1995). Irigaray (1985) states that the body is profoundly sexed, where the sex and sexuality of the male are symbolised and represented as instruments of power, and that of the female is deemed powerless. The report called “Dignity on Trial” (2010) analysed 153 higher court judgements on rape that refer to finger-test evidence. The report found “that ‘such’ evidence collection often helped offenders and their lawyers turn criminal cases into debates about the rape survivor’s sexual history”. The report quotes medico-legal evidence using terms such as “two fingers admitted,” “two fingers easily admitted,” or “two fingers not easily admitted.” These findings are then used to describe the rape survivor in phrases such as “habituated,” “used to,” or “accustomed to” sexual intercourse or “used to sex,” implying that survivors must have experienced regular consensual sexual intercourse, which is linked to gendered notions of honour and chastity. If the victim is a young girl, a single woman, or a widow, such terminology makes the prosecution process more harrowing. Baxi (2005) points out that the two-finger test allows for verification by substituting the penis with two fingers. She further argues that if doctors give a certificate saying there is no sign of injury and that ‘she is habituated to sexual activity,’ this advantage goes to the accused (Baxi, 2005). “If the forensic report says that the hymen admits two fingers, the defence will argue that the victim is a ‘loose’ woman,” says Kashyap (2010). Baxi (2005) further argues that the widespread perception that women commonly lie about being raped changes medical jurisprudence in the testimony of rape. The focus then shifts to the resistance posed by the victim, as women’s ability to resist is seen as a given in nature. The interactions with forensic experts and doctors revealed that the medical textbooks teaching about conducting the medico-legal examination essentially stick to the heteronormative definition of rape (as peno-vaginal penetration) without any attempt to inform the practitioners of the court judgements that opine that even slight penetration is sufficient. These can be seen in various judgements, such as Aman Kumar v. State of Haryana (2004), 4 SCC 379, which opined that slight penetration was sufficient to constitute an offence of rape, or Rahul Pundalik Birahade v. State of Maharashtra (2005), Bom CR 148, where it was stated that partial penetration or even an attempt at penetration is sufficient. Any act that falls short of this definition can only be an attempt to rape or ‘outrage modesty,’ even if the motivation is similar. Thus, medico-legal techniques, such as the two-finger test, result in the symbolic re-rape of victims, questioning the victim’s credibility. The phallocentric law insists on putting the onus of proving rape on the victim-survivor, with investigative systems designed to facilitate the same, resulting in a low conviction rate. In addition to standard procedures, i.e., body examination and collection of swabs and nail clippings, many doctors in India still conduct the unscientific and intrusive “two-finger test” as part of the medico-legal examination of rape survivors, which India’s Supreme Court banned in 2013 (Human Rights Watch, 2010; Human Rights Watch, 2017). On October 31, 2022, the Supreme Court in the State of Jharkhand vs. Shailendra Kumar Rai reiterated the ban on the two-finger test, adding to dozens of similar judgements, and directed the Union and state governments to ensure that medical professionals who continue to conduct the test be held guilty of misconduct. Further, the Bombay High Court, in the Sidharth Atchutrao Sawant vs. State of Maharashtra, 2003 Mah LJ 46 case, upheld that the degree and depth of penetration are irrelevant. The courts have also decreed that the medical evidence may add to the other evidence but cannot be treated as the sole evidence of rape having occurred since rape is a legal category and not a medical category (Das, 1996). According to Kamini Lau, a Session Judge in Delhi Session Court (interview in Times of India, November 24, 2011), “The cross-examination of the victim itself produces trauma. It attacks the reputation and veracity of the

Strengthening Critical Lens in Forensics to Address Sexual Violence  173

victim. It makes her re-live the rape and humiliates her. The production of trauma by the law itself is a serious issue that severely compromises the mental health of rape survivors.” The structures in the criminal justice system (CJS) seem to be highly patriarchal, which implicitly supports and reinforces the rape culture and rampant myths in society. These archaic mindsets and structures about women and rape directly affect the nature and kinds of services rendered. Rather than being tailor-made to suit the needs and demands of survivors, the services rendered are in a generalised format with an underlying assumption that all the survivors of rape are the same. Consequently, criminal justice institutions typically provide chequered services and dole them out like a relief package. Historically, there is a presumption that the “victim” is a passive recipient, not a participant; thus, the focus is on “treating” the female body. This victim-survivor stereotype has led to restrictive and regressive responses to sexual violence—”protecting women rather than protecting their rights.” This premise also operates in the idea of justice and services provided to the victim-survivors of rape, which can be damaging and render them powerless. The idea of justice and services should be operational within the paradigm of empowering survivors and considering them active participants in recovery. The aim must be to restore their dignity, give them a ‘voice’, and impede them from perceiving themselves through the gendered prism of honour, chastity, and modesty, thus preventing further victimisation.

Contextualising Patriarchy in the Justice System: Gender Justice Gaps Social and cultural systems and organisations tacitly condone violence to maintain patriarchal power and privilege (Sinha et al., 2017). This not only results in a complete normalisation of domestic, sexual, and political violence (violence in the name of honour and war) against women but is also internalised by women as an integral part of their lives to be endured in silence. This normalisation is also evident in women’s experiences with the law, thereby exposing how the entire legal system is biased against women and perpetuates, preserves, and upholds the oppression of women through the institutions of marriage, family, religion, and family laws (Haskar 1986). According to a feminist lawyer, “Procedures continue to be long and harrowing, the investigative machinery is lax and corrupt, cross-examinations of the victims degrading and humiliating; and, contrary to expectations, the statistics revealed an increase in reported cases and a dismal rate of conviction.”

A gender-blind criminal justice system The CJS includes criminal/criminal procedure codes and institutions such as police, forensic officials, courts, legal aid, and corrections. In the context of sexual violence such as rape, the forensic system is primarily the entry point to the victim-survivor journey to justice. This section will focus on the CJS to showcase how they are yet to be gender-sensitive in a manner that considers victim-survivor needs and has standardised gender-sensitive protocols.

Select empirical data on sexual violence against women Statistics related to crimes recorded and disposed of in India are published annually by the National Crime Records Bureau (NCRB) in the report, Crime in India. The Crimes against women include Dowry Deaths, Abetment to Suicide of Women, Miscarriage, Attempt/Acid Attack, Cruelty by Husband/Relatives, Kidnapping and Abduction of Women, Procuration of Minor Girls, Human

174  Forensic Justice Trafficking, Rape [Attempt to Commit Rape, Assault on Woman with Intent to Outrage Her Modesty, Insult to the Modesty of Women], and Murder with Rape/Gang Rape, to name a few. Table 10.11 States & UTs with Highest & Lowest Crime Rate against Women (IPC + SLL) – 2019–2021 SL

State/UT

2019

2020

2021

Mid-Year Projected Population (in Lakhs) (2021)

Rate of Total Crime against Women (2021)

Chargesheeting Rate (2021)

States 1

Assam

30025

26352

29046

172.6

168.3

52.9

2

Odisha

23183

25489

31352

227.4

137.8

80.1

3

Haryana

14683

13000

16658

139.2

119.7

57.1

4

Telangana

18394

17791

20865

187.7

111.2

87.8

5

Rajasthan

41550

34535

40738

386.7

105.4

54.5

6

Gujarat

8799

8028

7348

333.2

22.1

93.3

7

Manipur

266

247

302

15.8

19.1

48.4

8

Nagaland

43

39

54

10.6

5.1

80.4

9

Total State(S)

387997

357363

409273

6462.7

63.3

77.3

13395

10093

14277

96.7

147.6

71.2

Union territories 1

Delhi

2

Lakshadweep

38

15

9

0.3

27.3

80.0

3

D&N Haveli and Daman & Diu+

82

61

99

3.9

25.3

74.0

4

Puducherry

95

113

153

8.3

18.5

97.6

5

Ladakh

@

Total UT(S) Total All India

9

18

1.3

13.8

85.7

17329

-

14140

19005

181.9

104.5

71.6

405326

371503

428278

6644.7

64.5

77.1

Source: Crime in India 2021

According to Crime in India (2021), the total crime rate against women in India was 64.5 percent, with the states of Assam, the Union Territory of Delhi, Odisha, and Haryana recording the highest rate and the states of Nagaland, Manipur, and UTs like Lakshadweep and Ladakh recording the lowest rate (Table 10.1). While the data shows a dip in cases recorded in 2020, the context of the pandemic-reported rise of abuse cases needs to be factored in. Table 10.2 shows the states and UTs with the highest and lowest reports against women and girl victims of rape, disaggregated by age. The table reveals that the maximum number of cases (about 86.8 percent) are reported by women in the age groups of 18–45 years. The table shows that 62.9 percent of the cases are reported by women aged 18–30 years, followed by 23.9 percent of cases in the age bracket of 30-45 years. One needs to note that reporting cases by girls under 18 years old is 1

The tables presented below have extrapolated data from Crime in India to showcase the highest and lowest caseload of rape across states/UTs. The total reflects all cases or state/UT as per Crime in India 2021.

Strengthening Critical Lens in Forensics to Address Sexual Violence  175 Table 10.2 States & UTs with Highest & Lowest reports against Women & Girls Victims of Rape (Age Groupwise) – 2021 SL

State/ UT

Cases Reported

Child Victims of Rape (> 18 Years)

Women Victims of Rape (A6 18

Total 35 years. Considering data accuracy, anthropological predictions in 98% of cases were correct for sex, 84% of cases for age (at death), and 100% of cases for stature. Based on an overall accuracy of 70–80%, the study considered anthropological techniques as a prominent method for identification based on standard population data. However, the expected causes of the remaining 63% of unidentified cases were partial skeleton remains and pathological conditions. To enhance the global rates of identification, retrospective and population- or region-specific studies are needed (Baliso et al., 2023). Recent advances in technology introduce new, effective techniques for anthropological data analysis. Osteometric technique has been shown to be more accurate for estimation of sex and body height, specifically in the case of complete skeleton remains. Another study developed a blood-bone-tooth model, which brings new insight to the field of forensics for multi-tissue age prediction. This facilitates the combined analysis

Application of Forensic Biology in Criminal Justice System  373

of blood, bones,bone and teeth by the DNA methylation technique. Hence, it is predicted to be a more accurate model for age prediction for living as well as dead people (Dias et al., 2021). Some use the frontal sinuses as one of the most potent individualizing methods for personal identification and depict the association between orientation deviation and sinus size and outline shape (Butaric et al., 2022). New techniques of bone proteomics have been implemented, which could differentiate the cause of bone degradation as either driven by bacteria or extrinsically driven. This information would be important for the introduction of a better model to estimate time since death in forensic and anthropological casework and a long-term preservation strategy for archeological specimens (Procopio et al., 2021). Marquez-Grant and colleagues reviewed the current subject of how some drugs affect bone mineral density. Many psychotropic drugs, as well as prescribed medications and recreational drugs, have been shown to affect anthropological parameters (Grant et al., 2022). Today, a pertinent issue for anthropologists in legal proceedings concerning skeletal tissue traumatic injuries is to distinguish between blunt force trauma (BFT) and thermal-induced trauma (TIT). Keys and Ross (2022) depicted the different patterns associated with blunt force trauma (BFT) and thermalinduced trauma (TIT). Compared to TIT, the BFT pattern is observed to remain after burning.

Forensic entomology Forensic Entomology is the study of necrophagous-feeding insects and other arthropods associated with decomposed carcasses and provides supportive evidence in criminal investigations for court proceedings. Forensically important insect classes basically include flies (order Diptera) and beetles (order Coleoptera). Due to the ectothermic nature of insects, it is evident that insect ecology, physiology, and behavior depend on environmental conditions such as temperature, light intensity, humidity, and wind. With time, a dead body passes through different stages of decomposition, i.e., fresh, bloated, active decay, advanced decay, and skeletal stages. In the advanced stage of corpse decomposition, when external characteristics of the corpses such as physical appearance and other indicators, i.e., temperature of the body, discoloration of skin, rigor mortis, and postmortem lividity, are not observable, forensic entomology becomes important in the estimation of time since death and cause of death (Campobasso et al., 2005; Gomes et al., 2006; Kashyap and Pillay, 1989). It is claimed that the postmortem interval can be estimated through insect species and developmental stages even after 72 hours (Marchenko, 1988; Catts and Goff, 1992; Anderson, 1997). A vast variety of forensically significant insects, commonly referred to as scavengers, that feed on animal carcasses, along with the anaerobic bacteria that drive the decomposition process, play a key role in determining the time since a person or an animal died. It is a distinct and narrow field of forensic biology mainly involving the study of insect identification, habitat, life cycle, and wave of succession on corpses and has the admissibility of entomological evidence in courts across the globe (Byrd and Castner, 2010; Guppy, 2001; Varatharajan, 2000). In some cases, insects are the only evidence found at a crime scene and serve as important and reliable evidence. When a human body is decomposed, identity is not only an issue but also the time since death and the cause of death. To estimate the relative time of death and cause of death, experts observe the different life cycle stages or metamorphic larval stages of insects and a specific sequence, i.e., the succession wave of entomofauna, which differ according to surrounding bio-geolocation, season, and habitats (Campobasso and Introna, 2001; Edirisinghe and Edirisinghe, 1994; and Otranto and Stevens, 2002). The first case of entomology where insects were used as a crime detection tool was in the murder case of a farm worker that happened in the 13th century in China, when there was no concept of forensic chemistry. The case was reported in a medicolegal book, “The Washing Away of Wrongs: A Training Manual on Investigating the Death.” In this murder case investigation, the sickle used by all the farmers in the village was seized for

374  Forensic Justice examination. Of them, one specific sickle was observed to be attracted to a different calliphoridae (blow flies) due to the blood remaining on it; however, the blood has already been wiped. Therefore, the presence of blowflies on this particular sickle proved that it was used for killing fellow farm workers (Catts and Goff, 1992). Currently, the application of combined knowledge of varied fields of forensic science, such as forensic toxicology and forensic palynology, and the use of molecular markers (advanced technology) for species identification of insects has enhanced the accuracy rate for postmortem interval estimation in criminal investigations. In the context of India, forensic entomology is still in its developing phase and needs constant research for further progress and application in criminal jurisprudence.

Forensic botany Forensic botany is a distinct and uncommon field that includes the analysis of trace botanical evidence, i.e., plants and their parts, e.g., pollen, seeds, fruits, leaves, flowers, and wood, for civil and criminal legal proceedings to ascertain the cause of death or former location (Robertson et al., 2016; Rosenblatt, 2015; Meloan et al., 2014). In conjunction with other circumstantial evidence, botanical evidence helps in the reconstruction of the sequence of events that happened at the crime scene, although very few botanical evidence cases are usually reported in forensic cases. Forensic botany can be subdivided into many subspecialties, including plant anatomy, plant systematics, palynology, plant ecology, and limnology. Forensic botany basically applies the knowledge of cellular characteristics of plants (plant anatomy), plant taxonomy and species identification on the basis of morphological and genetic characteristics (plant systematics), microscopic analysis of different types of plant spores or pollen (palynology), study of plants in a particular environment or plant succession (plant ecology), and the study of freshwater ecology (limnology) (Aquila et al., 2014) in solving and providing the lead to the crime. Forensic botany helps in the identification of plant species, which can determine the geographic location or origin place of a plant that can link the crime to the crime place, where there are more possibilities of getting other evidence important for further investigation. The role of forensic botany evidence in the prosecution of criminals totally depends on the most important principle of forensic science, i.e., “Locard’s principle of exchange”. The first case in the modern era to use such types of botanical evidence in court included the kidnapping and death case of Charles Lindbergh’s young son in 1932 (MillerCoyle, 2001). The perpetrator, while committing the crime, coincidentally carried traces of plant residue on his clothes or body. In a murder case, blackjacks (found on criminals’ clothes) attached while passing through a bush after the commission of the crime helped solve the case. DNA barcoding or DNA sequencing of blackjack plants that were found on the suspect’s clothes helped in solving the crime by comparing them with blackjacks collected from the crime scene (a reference sample), therefore linking the murderer to the crime scene (Kress, 2017). A forensic botanist can examine the botanical evidence in different aspects and provide investigative leads, i.e., the sample’s geographic origin by species identification, that can link a crime scene with the accused or victim (Ferri et al., 2009), provide clues about the manner of death as to whether it was accidental, homicidal, or suicidal in nature, as well as determine if the crime scene is primary or secondary in nature (Coyle et al., 2005). Degraded, fragmented, and trace amounts of botanical forensic samples pose a problem in species identification based on conventional microscopic analysis of plant morphology and anatomy. To combat this issue, the application of molecular and genetic techniques could help confirm the source or species of the plant (Ferri et al., 2009; Ward et al., 2009). The first criminal case in Arizona’s Maricopa County (1992) implemented DNA typing techniques for forensic botanical evidence examination and achieved legal acceptance.

Application of Forensic Biology in Criminal Justice System  375

Palynology is a distinct and important subdivision of forensic botany that deals with the study of different varieties of pollens and spores and also includes microscopic plankton organisms, both in living and fossil form, in the legal context. These spore and pollen studies were first started in 1916 by Lennart Von. Later on, from the 1950s on, it was used as evidence in investigations of crimes such as hit-and-run cases, theft, sexual assault, tracing of drugs, terrorism, and poaching (Mildenhall et al., 2006; Boi, 2018). Palynology can be useful in a criminal investigation. (Mildenhall et al., 2006). Palynology helps in determining the association between a crime scene and a suspect’s travel history. Having the victim and perpetrator at the crime scene helps reduce the list of suspects. There are a wide variety of plant pollens or spores produced for reproduction. One important property of pollen or spores is their uniqueness in their morphological characteristics, such as size, shape, membrane compositions, coatings, roughness or smoothness, etc. Every plant from different geographical regions would have a unique morphology and structure of pollen, known as “Pollen Fingerprints” (Ochando et al., 2018). Pollen or spores obtained at crime scene samples from water, soil, and dust can be examined and compared with pollen collected from clothes, shoes, cars, mud on tires, body parts, hair, etc. of the victim or suspect (Kumar, 2016), indicating the presence of the accused or victim at a particular place. This ‘trace’ evidence of pollen or spores plays a highly prominent role in forensic investigation. In another perspective, pollen can be used to kill someone, as some individuals are allergic to a specific pollen or spore. In a postmortem examination, the presence of pollen can be important evidence for legal purposes. A Swedish murder case (1959) of a woman showed the importance of pollen and spore trace evidence. In this case, soil samples obtained from dead women’s clothes were sent to the laboratory for examination and comparison with pollen found at the crime scene. But in the examination report, there were no matches observed in the pollen recovered from the victim’s clothes’s soil sample and the crime scene’s pollen (reference sample). Finally, the palynologist concluded that the place where the victim’s body was recovered may not be the primary crime scene where the victim was actually killed but was instead the secondary crime scene in which the victim had been killed someplace else and dumped in the house after death. Diatoms are unicellular, non-motile aquatic phytoplankton belonging to the kingdom Protista and are also important evidence in the field of forensic limnology. Diatoms are highly diverse organisms with > 10,000 species and exist in varied shapes and sizes, which vary in the range of 10 m to 20 m (Petar et al., 2014). Due to their diversity, diatoms are recognized as an important tool in cases of drowning death (Plenkovic-Moraj et al., 2007). In every body of water, specific species of diatoms thrive in large numbers. They have a siliceous, shining outer shell, which makes them a protected and indestructible form of evidence (Verma, 2013). Diatoms are mainly classified based on two shapes: centrales (radially symmetrical) are found on ocean surfaces, and Pennales (laterally symmetrical) live in freshwater streams. In most cases of murder, a criminal usually disposes off the dead body in water to represent the cause of death as suicide. The challenging question for a forensic pathologist is to differentiate whether a drowning case is antemortem or postmortem in nature and whether it is suicidal or homicidal. This information could be retrieved by medical pathologists who examine the lung, heart, bone marrow, pulmonary vein, and other organs. In the case of antemortem drowning, when a living person is drowned in water due to an active respiratory and circulatory system, water containing the diatoms enters the respiratory tract of the individual and circulates from the lung to other parts of the body, such as the heart (left side), bone marrow, brain, kidney, etc. A forensic report that gives findings of the presence of diatoms in specimens collected from the deceased indicates antemortem drowning, while the absence of diatoms indicates postmortem drowning (Piette and De Letter, 2006).

376  Forensic Justice

Forensic DNA The world of forensics drastically changed with the advent of DNA or deoxyribonucleic acid technologies, which greatly impacted the administration of the justice system. DNA is made up of the sequence of four basic nucleotides such as A (adenine), T (thymine), C (cytosine), and G (guanine), which are inherited from parents to their offspring. In the world, each individual has a unique sequence of DNA, also known as a genetic blueprint (Eissenberg, 2014). This property of DNA plays a significant role in criminal and civil investigations. However, the genetic material of all the individuals is 99.9% similar, and only 0.1% of the difference among individuals makes them unique in the world (except monozygotic twins) (Ahmed et al., 2020). In the perspective of forensic investigation, another beauty of DNA is that it remains the same in each cell of the body, whether from hair, blood, bone, saliva, or any tissue or organ of the body throughout life (Fung and Hu, 2016), except in rare situations of chimerism, a process in which a person has two distinct types of DNA from different parts of the body (Anderson et al., 1951). In the case of bone marrow transplantation, the recipient’s blood can show chimeric DNA due to the production of the donor’s marrow DNA. DNA can be extracted from biological substances containing cells, such as blood, semen, seminal fluid, saliva, skin, and even hair root tissue. Moreover, DNA can be recovered from very old and trace biological substances such as dried blood stains, dried seminal or vaginal stains, dried saliva, hair, sweat, teeth, bones, etc. (Sijen and Harbison, 2021). Any biological material found at a crime scene can be used for DNA profiling and compared with reference samples to enable matching, thus indicating the owner of the bodily substance from whom it originated (Lindsey et al., 2003). The DNA fingerprinting’ (also known as DNA profiling) technique was invented in 1985 by Sir Alec Jeffreys (the geneticist) of Leicester University, UK, who is known as the father of DNA fingerprinting. Prof. Alec Jafferys first applied the DNA fingerprinting technique in an immigration civil case (Colin Pitchfork case, 1986) in the United Kingdom (U.K.) (Jeffreys et al., 1985; Gill et al., 1985). He identified certain loci in DNA that contained the repeated sequences of nucleotides known as short Tandem Repeats (STR) (ranging from 2 to 6 base pairs). This was important for establishing individuality as the number of repetitions of a particular sequence varies among individuals (Butler, 2005; Goodwin et al., 2011). Dr. Jeffreys developed a technique to identify these variations of DNA repeat sequences using the multilocus Restriction Fragment Length Polymorphism (RFLP) technique, which proved helpful in forensics for human identification. With time, this technology has undergone various developments, including the introduction of polymerase chain reaction (PCR) in 1990, which resolved many issues of low and degraded DNA through the evolution of STR-based DNA profiling (Zhu et al., 2020). STR-based DNA profiling involves the genotyping of 20 CODIS (Combined DNA Index System) core STR loci developed by the FBI. STR-based DNA profiling is more sensitive than RFLP and is now recognized as a globally accepted technique for human identity in forensics. In the forensic community, Short tandem repeat (STR) profiling is considered a gold standard technique for human identification (Lynch, 2003). The beauty of using STR markers is that they have a high power of discrimination, i.e., the probability that two randomly selected individuals will have distinctive genotypes, and a low match probability (Wyner et al., 2020). This is due to the highly polymorphic nature of STR markers. The utmost requirement in forensics is the establishment of the personal identity of an individual. Many conventional forensic techniques are available for personal identification, i.e., anthropometry, fingerprints, and poroscopy; however, these techniques are not applicable in cases where mutilated or skeletonized bodies or any body fluid is found at the crime scene. In such scenarios, DNA is a promising tool for the establishment of the personal identity and sex of perpetrators in different

Application of Forensic Biology in Criminal Justice System  377

types of cases and provides conclusive scientific reports in court. At present, DNA technology has widespread applications in the investigation of varied types of criminal and civil forensic cases (Iyengar and Hadi, 2014; Prahlow et al., 2017), including: (a) Identify the victim and accused (b) Sexual assault case and child abuse (c) Paternity dispute (civil & criminal dispute) (d) Mass disaster victim identification (natural & unnatural) (e) Identification of unidentified and unclaimed dead bodies (f) Terrorists cases (g) Kinship analysis, e.g., Child swapping (h) Aborted fetus identification (i) Forensic phenotyping (j) Forensic genealogy As DNA sequence is unique in each individual, DNA evidence collected from a crime scene (questioned sample) in cases of murder, sexual assault, burglary, etc. helps in establishing the identity of the criminal involved in the crime. A DNA examiner generates the DNA profile from the questioned sample and suspects (reference), then matches the genetic profile of the unknown questioned profile with the suspect’s profile. Hence, the DNA fingerprinting technique helps in the conviction of criminals involved in crimes and eliminates suspects from the list of suspects (Bond, 2007). In sexual assault cases, including POCSO (The Protection of Children from Sexual Offenses) cases, the most likely biological evidence of DNA found at the crime scene is blood stain, semen stain, saliva stain, vaginal stain (on undergarments, bedsheet), hair, bitemark left on the victim’s body, or other parts of the crime scene. Most importantly, the presence of a semen stain or fluid on the victim’s clothes or crime scene reveals an act of sexual offense. In the case of POCSO, occasionally bleeding from the victim’s genitals is exchanged with the accused’s private part or clothes. Therefore, except for semen samples, DNA examination of these transferred blood stains on the accused body part has proved important evidence to link the accused with the victim, especially in the POCSO case (Kaur et al., 2022). A medical examiner collects the sexual assault victim sample using the Sexual Assault Evidence Collection Kit (SAECK), often called the Rape Kit (Clark et al., 2021). In a rape case, it is recommended to collect the sample from the victim and crime scene within 72 hours of the alleged sexual assault to account for all of the DNA (Ladd and Seda, 2021). Comparing DNA profiles collected from the victim’s or crime scene evidence with suspects may help identify the criminal involved in sexual assault. Sometimes, a woman may get pregnant in a sexual assault scenario; in that scenario, the DNA profiles of the victim, suspects, and abortus can be compared to identify the accused or biological father by paternity testing (Ludes et al., 1991). However, more advanced DNA technologies, e.g., NGS-based STR or SNP markers, have been utilized in solving complicated sexual assault cases such as gang rape or incest cases (assault by a family member in blood relation) (Sharma, 2007). In addition to criminal investigations, DNA has proven to be potent evidence in civil cases such as paternity and maternity disputes. Paternity and maternity testing is needed in cases of child swapping, property disputes, immigration, etc. (Srivastava et al., 2022). Civil paternity issues arise in cases where a woman has an extramarital affair with another person and the husband denies that the child is his biological son or daughter. The identity of the born child is questioned in this case. According to Mendel’s law, a child receives 50% of their genetic material from each of their parents (Lewis and Simpson, 2022). Initially, ABO blood grouping was the first approach that was used for paternity testing, whether the case was inclusion or exclusion. However, with the emergence

378  Forensic Justice of DNA profiling techniques, the issue of paternity can be resolved with the powerful technique of STR (Short Tandem Repeat) (Essam et al., 2020). A forensic paternity report gives an opinion in the form of inclusion or exclusion. In paternity civil disputes, a blood sample or buccal swab is required to be collected from the mother, father, or child (questioned identity) for extraction of DNA and generation of the genetic profile in order to match genotyped 20 core STR loci among the three. DNA profiling helps in determining family relatedness and kinship (sibling) analysis in cases where the mother and father are not available for comparison as reference samples. Y-chromosomal STR and mitochondrial DNA sequencing may be helpful for paternal and maternal lineage analysis, respectively. Since the Y chromosome is inherited from father to son and mitochondrial DNA is only inherited from mother to children, both son and daughter In cases of highly degraded skeletonized bodies and where the body is found in parts or unidentifiable due to distorted facial features (e.g., mass disaster, terrorism, bomb blast, burnt bodies, cremated skeleton remains), paternity/maternity, or sibling/family relatedness testing has proven successful in establishing the identity of an individual. In the New York WTO 9/11 building terrorist attack case, the victim’s dead bodies were identified by DNA testing. In the case of missing persons or unidentified bodies, if someone claims in the future to be a family member of a dead body, DNA profiling can be used to establish the identity by comparing their profiles in familial searches. The main drawback of STR profiling is that it needs reference samples for comparative analysis of unknown/reference samples to give a conclusive forensic report. Across the world, human trafficking and child abuse have become alarming issues for law enforcement agencies. This evolution and adoption of DNA technologies have been adopted as a great aid to tackle the wide-scale problem of human trafficking. To establish the identity of the children and women who are mostly the main victims of human trafficking, a collaborative project called DNA PROKID was initiated by the University of North Texas Center for Human Identification (UNTCHI) for identification and rehabilitation. This project assisted other countries in developing two DNA databases: one for unknown profiles of children without claimants and another for DNA profiles of family members or relatives who claimed (the reference database). This initiative has strongly succeeded in the identification and rehabilitation of more than 900 children and their families. All countries have their own DNA database, used to submit and store the DNA profiles of criminals to help the police and forensic scientists link any unknown criminal to future crimes. In the future, if an accused’s DNA profile is obtained but there is no match with the available suspect’s profile or a reference sample is not available, an unknown profile can be searched in the FBI’s CODIS, a collaborative DNA database of the United States that has DNA profiles of previously convicted criminals (Panneerchelvam and Norazmi, 2003). If there is a positive match, the information of an unknown individual can be retrieved from the database. In the same way, the DNA profile of an unidentified dead body can be searched to find a match where no claimant is available. The profile of the unknown perpetrator can be searched via INTERPOL (an international criminal police organization) to find a match in other countries’ databases, in case an investigator acquires the history of the perpetrator that belongs to a foreign country. The conviction of an innocent person for a crime they did not commit is one of the major misfortunes that can occur in the criminal justice system. The major causes of erroneous conviction are spectator/witness confusion, false declaration, improper sample handling, and the implementation of conventional techniques. A forensic innocence project (https://innocenceproject. org) has been initiated to exonerate the innocents who have been wrongfully convicted and imprisoned by reexamining the case. In comparison to other biological techniques, DNA testing has a major role in the exoneration of wrongfully convicted persons (LaPorte, 2018). As per the available data, since 1989 to 2020, a total of 375 people have been exonerated as a result of DNA analysis (https://innocenceproject.org/dna-exonerations-in-the-united-states/).

Application of Forensic Biology in Criminal Justice System  379

Admissibility of DNA as Evidence in Court DNA is considered highly acceptable evidence in the criminal justice system, as it is well established that DNA profiling is a highly sensitive technique for human identification with statistically significant discrimination power (Adhikary, 2007; Verma and Goswami, 2014). However, various issues about DNA technology have been raised and debated on various grounds in many countries (Butler, 2015a, b). Regardless of the challenges raised, technological advancement has introduced DNA profiling as the most promising evidence in the judicial system (Grubb, 1993; Virkler and Lednev, 2009; Verma and Goswami, 2014). Legal debate has been raised regarding the validity of the evidence, which is measured in terms of the profiling results produced, whether confusing or inconclusive (Lynch and McNally, 2003). Other points of DNA evidence regarding admissibility raised in court depend upon the guidelines followed for collection, preservation, packaging, transportation, and chain of custody procedures. The DNA profiling method is forensically validated and accepted by the scientific community and follows the principles of forensics, i.e., the Frye test and Daubert law. Various factors are responsible for measuring the credibility of the testimony and reports of an expert’s opinion, such as the expert’s qualifications and experience, good laboratory practices, and accreditation for quality control and standards. All these standard criteria boost the confidence of the court to admit the forensic reports and circumvent the false statement of ‘tampering with the evidence’. If any discrepancies are found in scientific or analytical proceedings or at any level, it might give the benefit of the doubt to the accused. Scientific matters challenges that are raised in the context of DNA reports are the likelihood of sample contamination, misinterpretation of results, false exclusions or inclusions of findings, as well as the transfer of DNA (secondary or tertiary) (Patel et al., 2013; Gupta et al., 2016; Murphy, 2018). Therefore, DNA is recognized as irrefutable evidence in the criminal justice system. From the legal perspective of DNA evidence in India, there is a lack of legislative jurisdiction in the criminal justice system, which requires reforms to existing laws. Another issue raised against the existing criminal justice system is the urgent need to pass a DNA profiling bill.

The future of forensic biology Currently, many new areas of forensic DNA, such as forensic genealogy, forensic phenotyping, DNA methylation (for age estimation and monozygotic twin identification), and miRNA profiling (for the identification of biological fluids), are still in the development phase. In the future, these advanced techniques have promising forensic applications in solving cold cases. Nowadays, apart from STR profiling, many new advanced DNA technologies, e.g., next-generation sequencing and microarray analysis, are emerging in the field of forensics. The NGS-based SNP (Single nucleotide polymorphism) genotyping technique is emerging as the most feasible tool for analyzing unsolved cold cases such as highly degraded and mixed samples, biogeographic ancestry, and forensic phenotyping without a reference sample. Forensic DNA phenotyping (FDP) is a novel DNA technology that can infer externally visible facial features (such as eye color, skin color, face morphology, hair color and morphology, baldness, etc.) and biogeographic ancestry (the geographic location of origin of an individual’s biological predecessors). Hence, it can provide investigative clues or lead the investigating officer or police to solve the crime even in cases where there are no suspects or database hits to narrow suspect lists. The estimation of a perpetrator’s age using FDP is still debated, however. DNA methylation is another technique that can estimate the age of an individual. However, for the past few years, the issue of enactment of the FDP has been publicly debated in Germany and Switzerland while being implemented in many European countries where FDP software, e.g., Snapshot Phenotyping System (Parabon Nanolabs, USA), has been developed

380  Forensic Justice that translates SNP marker genotyping information from an unknown individual’s DNA sample into phenotypic traits, i.e., facial features of morphology and ancestry, with the implementation of an artificial intelligence (AI) algorithm (Parabon Nanolabs 2019). In recent years, with advancements in technologies, miRNAs have been evolving as important forensic biomarkers for identification of body fluids such as blood, plasma, saliva, urine, vaginal secretion, semen, breast milk, etc., estimation of time since death, wound age assessment, and in the anti-doping field (Silva et al., 2015; Poór et al., 2016; Luan et al., 2018). Usually in rape cases, mixed stains such as vaginal secretion and seminal fluids, or blood and semen, might be found on recovered garments of the victim or accused. Existing serological preliminary and confirmatory tests for forensic body fluid identification are quick but have shown inconsistent degrees of sensitivity and specificity (Virkler and Lednev, 2009). From a forensic point of view, the stability of miRNA inside the samples is the most important factor for employing them as body fluid identification markers. miRNA could be a more stable and sensitive biomarker than mRNA due to its smaller size (approximately 20–25 nucleotides versus 200–300 nucleotides in mRNA). These peculiar advantages of miRNA can overcome the various constraints of conventional serological and mRNA-based methods for body fluid identification (Hanson et al., 2009; Zubakov et al., 2010).

Landmark cases The evidence present at the scene of a crime can help lead to criminal identification in many criminal cases such as murder, rape, theft, and so on; however, when such evidence is lacking or inconclusive, the usual approaches fail. In these circumstances, evidence in the form of biological DNA material can be used to corroborate the evidence, identify the victim and perpetrator, and aid in identification. NA evidence has proven to be a valuable tool over time, leading to the successful conviction of numerous offenders. In India, there have been a number of high-profile incidences of murder or rape in which DNA evidence was crucial in identifying and convicting the perpetrators. In the history of Indian justice, the case of Kunhiraman v. Manoj marks a major event wherein Mr. Kunhiraman was proven to be the biological father of the child in question, the verdict of which was upheld by the Kerala High Court. The Chief Judicial Magistrate (CJM) in this case expressed the expert’s opinion regarding the DNA report as to its admissibility under Section 45 of the Indian Evidence Act (IEA) and how he has no reason to doubt the report of the expert and his testimony (Adhikary, 2007). In other cases, such as the Kantidev vs. Poshiram 2001 (5) SCC311 and the Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik AIR 2014 SC 932, both of which were paternity dispute cases, the verdict played a major role in the Indian Judiciary gradually undergoing a shift from relying less on Section 112 IEA to relying more on reports based on DNA to establish paternity. (Goswami and Goswami, 2018). The first criminal case in India to be resolved with the use of forensics was the Tandoor Murder Case (State vs. Sushil Sharma, 2007) in 1995. Shusil Sharma shot and killed his wife on suspicion of an affair. After killing her, he drove her body to the Bagiya restaurant, where he and Keshav Kumar, the restaurant manager, tried to burn her in a tandoor. After a police investigation, the victim’s burned remains discovered within the tandoor were identified using DNA testing. The rape and murder case of Priyadarshani Matoo served as the catalyst for the DNA controversy to gain attention in the Indian legal system (CBI vs. Santosh Singh, 2010). The DNA testing of the deceased’s vaginal swabs was used in this case at the trial stage; these tests eventually proved to be successful and ensured that justice was served. The Nirbhaya case (Pawan Kumar Gupta vs. State of NCT of Delhi, 2020) of 2012, involving the gang rape of a 23-year-old female, which created widespread attention in the country and led to reform of rape laws, involved DNA testing and profiles to convict and identify the culprits. Asom Gana Parishad member and former minister Rajendra Mushahary was believed

Application of Forensic Biology in Criminal Justice System  381

to be the father of the woman’s kid due to the fact that he committed two rapes on the same woman and caused her to become pregnant, a fact that was verified using DNA testing to establish paternity. The DNA from the disintegrated body parts also allowed for the identification of the deceased in the suicide bombing that killed former Indian Prime Minister Shri Rajiv Gandhi and in the murder of Mr. Beant Singh (the former Chief Minister of Punjab state, India). The victims of the terrorist attack on the World Trade Center building on 9/11 in New York were also identified using DNA. Similar to this, in the case of the murder of Sheena Bora, identification was done through the DNA profile generated using the skeletal remains. The positive identification of each piece of evidence was carried out by creating DNA profiles in the Shraddhananda case (Swamy Shraddananda vs. State of Karnataka, 2008), in which the victim was strangled to death by her live-in partner Aftab Poonawala and then disposed off by chopping her body into 35 pieces and scattering them throughout Delhi.

Limitations of forensic biology Forensic biology, like every other branch of science, has advantages as well as its own set of drawbacks and limitations. Unlike physical evidence, biological evidence tends to be more prone to contamination and deterioration due to various factors such as environmental conditions of heat, moisture, UV light, etc., which calls for stricter measures in not only its careful collection but in keeping it a priority to collect it at the earliest from the crime scene. The DNA present in the scene can also be mixed and contaminated, and this poses various challenges in its interpretation and is prone to subjective interpretation. The quantity of the biological evidence recovered can also vary greatly and often isn’t enough for analysis. Besides these, the possibility of human errors during collection, handling, or processing can potentially lead to inaccurate results. Much of the analysis done on the biological evidence relies heavily on the availability of relevant databases. When such databases are limited or unavailable, it poses a great setback to the data interpretation and final results. The DNA database currently available, although extensive and diverse, may not include DNA profiles of all individuals, especially in cases in which perpetrators do not have prior criminal records. With advancement in technology, new techniques and methodologies are constantly being developed to meet the limitations and provide more accurate and reliable results, saving time and labor. However, these advancements also bring along with them the challenges of cost, standardization, validation, and court acceptance.

Conclusion The aforementioned applications of various branches of forensic biology deal with linking the criminal with crime, associating a criminal or victim to a crime scene, determining cause and manner of death, time of death, assisting in crime scene reconstruction, corroborate a victim‘s testimony, establishing the identity of persons associated with a crime, exonerating the innocent, etc. In recent years, with the invention of DNA technology, it has become the “golden standard,” which plays a crucial role in the criminal justice system. The branch of forensic genetics opens up unique possibilities compared to other conventional biological techniques, i.e., personal identification of individuals associated with crimes, exoneration of innocence, identification of accused in sexual assault cases, complex paternity disputes, establishing the identity of putrefied unidentified dead bodies, mass disaster victim identification, predicting facial appearance, bio-geographical origin, ancestry of an individual, and exonerating the innocent. Extending knowledge of multiple fields of forensic biology and their huge application to the legal process has made it the dominant area of forensic science.

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