CHAPTER IIIA

PRE-INSTITUTION MEDIATION AND SETTLEMENT

12A. Pre-Institution Mediation and Settlement.

THIRD DIVISION—APPLICATIONS PART I.—APPLICATIONS IN SPECIFIED CASES

119. Under the Arbitration Act, 1940 (10 of 1940),— (a) for the filing in court of an award;

Thirty days.

The date of service of the notice of the

making of the award;

(b) for setting aside an award or getting an

award remitted for reconsideration.

Thirty days.

The date of service of the notice of the filing

of the award.

MEDIATION IN CRIMINAL DISPUTES

IN INDIA: MEDIATION IN CASES OF
SEXUAL HARASSMENT
This article was authored by Shravani Shendye and Nikita Bansal from NALSAR.

The following essay aims to

investigate whether application of
mediation in criminal cases,
specifically in cases of sexual
harassment, is appropriate and whether
it should be encouraged. Mediation is a
voluntary and flexible process where
the mediator acts as a neutral third
party and aims to resolve the dispute
within the parties. It usually happens in
a confidential setting by making the
redressal process victim centric and
based on mutual resolution of the
grievance. This essay aims to explore
whether mediation as an alternate
dispute redressal mechanism, apart
from the traditional litigation method,
can address the loopholes in the present
system, considering that mediation as
an Alternate Dispute Resolution (ADR)
mechanism is not in vogue in India.
Application of mediation in criminal
cases is a precarious issue and this
essay aims to critique the same.
The essay will look at the application
of mediation and the scope of this
method of ADR on the basis of
substantive and procedural laws.
Further, the essay will compare and
contrast the present laws related to
mediation and sexualharassment in
India with other countries. This
comparison will be executed with
respect to current accepted practices in
India and abroad. The essay will weigh
the merits and demerits of mediation in
criminal disputes involving sexual
harassment. Finally, the researchers
aim to reach a conclusion based on the
different sides presented in order to
determine if mediation in criminal
disputes pertaining to sexual
harassment are feasible or not.
ntroduction
The #MeToo movement has brought up the issue of sexual harassment to the
forefront again. The movement that exposed Harvey Weinstein and many such
others in Hollywood spread to other countries and arrived in India when an Indian
actress alleged that a senior veteran actor had sexually harassed her.[1] The start of
the #MeToo movement has been a catalyst in providing people a platform to voice
their concerns and speak up against sexual offenders. In recent years, the issue has
gained attention worldwide, especially in workplaces. Media has given a greater
attention to highlight the issue among masses.

The importance of this movement is paramount and this clearly reflects in India’s
crime statistics. According to NCRB’s Crime in India 2016 report, Sexual
Harassment accounts for 32%, Assault on Women with Intent to Outrage Her
Modesty accounts for 46%, Assault or use of criminal force with intent to Disrobe
accounts for 11%, Voyeurism accounts for 1%, Stalking accounts for 8% and
Insult to the Modesty of Women accounts for 7305 reported cases all India.[2]

According to statistics related to reporting of cases, registered cases of sexual

harassment at Indian workplaces increased by 54% from 2014 to 2017, according
to official data.[3] The instances of sexual harassment that women face on a daily
basis, including eve-teasing, cat calling etc. are not even considered ‘grave’ enough
to be reported and almost 80% cases of sexual harassment go unreported.[4]

Under statistics related to Conviction, while the conviction rate for all crimes
against women stands at a measly 19% across India (compared with an average
conviction rate of 47% for all crimes).[5]

Statistics related to cases pending at police investigation level indicate that it is not
just slow court proceedings that are an issue. For Assault on Women with Intent to
Outrage her Modesty, pendency percentage was 28.5% and for Insult to the
Modesty of Women, the pendency percentage was 37.6%.

Statistics of cases pending at court proceedings indicate that Assault on Women

with Intent to Outrage her Modesty had pendency percentage of 88.8% while
pendency percentage for Insult to the Modesty of Women was 86.5%.[6] It is also
important to note that conviction rates refer to only cases which have completed
court proceedings in the current year. They do not include cases that are appealed
to which are a large number themselves.

After the Nirbhaya gang rape case in 2012, India had strengthened its laws and
legislated the Sexual Harassment of Women at Workplace Act in 2013. According
to the recommendations of the Justice JS Verma Committee, Criminal Law
(Amendment) Act of 2013 was enacted which had substantial amendments to laws
for sexual offences to ensure sexual harassment is no longer trivialized.[7]

However, though the law, prima facie seems a progressive step towards legal
reform, it has failed to be gender neutral and has failed to address the procedural
hindrances that slow down the grievance redressal process. It is important for all
stakeholders of the justice system to realize the need for a legal reform to the
criminal disputes resolution system. This essay deals with whether mediation in
cases of sexual harassment is the right solution and means of this legal reform.
Mediation is an emerging form of Dispute Resolution in India and other countries
and it is slowly gaining recognition in resolving criminal disputes. The quest of
exploring this topic is important because India is in dire need of an efficient and
quick justice deliverance system, especially, in backdrop of the rise in sexual
offences against women.

Mediation in Criminal Cases Involving

Sexual Harassment: The Indian Context
Substantive law
Sexual harassment is listed as a criminal offence and is punishable under several
laws in India. However, no existing substantive legislation against sexual
harassment recommends mediation for dispute resolution. In absence of a proper
legislation, mediation in cases of sexual harassment should be dealt with utmost
care and precaution in order to protect the self-respect and dignity of the survivor.
The following are the major legislative enactments in India which deal with the
issue of Sexual Harassment (excluding provisions for grave and heinous crimes
like rape):

1. Indian Penal Code 1860 (IPC)

Under this legislation, Section 294 punishes for obscene acts,
singing/reciting/uttering obscene songs, words in public places to the annoyance of
others. The Punishment is imprisonment for a term of up to 3 months or fine, or
both.[8] IPC Section 354 particularly deals with sexual harassment. Section 354(A)
includes demanding/ requesting sexual favours, showing pornography, sexually
coloured remarks, physical contact and advances and punishes accused with
imprisonment for 1-3 years or fine or both.[9] Section 354 (B) deals with assault or
use of criminal force with intent to disrobe and punishes for 3–7 years in prison
and a fine.[10] Section 354(C) deals with crime of voyeurism i.e. watching,
capturing or sharing images of a women engaging in a private act without her
consent and is punished with jail for 1- 3 years, for first conviction and 3 – 7 years,
for second conviction along with fine.[11] Section 354(D) deals with sexually
harassing a women by stalking and punishes with 3 – 5 years of jail coupled with
fine.[12] IPC Section 499 includes defaming a women by morphing pictures and
sharing them with intention to harass and lower reputation in the right thinking
members of the society and is punishable by jail up to 2 years or fine or both.[13] 
Section 503 includes criminally intimidating a women if she refuses sexual favours
/advances and thus is threatened for physical or reputational harm, shall be
punished with imprisonment for 2 years or fine, or both.[14] Section 509 punishes
for insulting the modesty of a woman and is punishable by jail of 3 years and fine.
[15] Under the provisions of the statute, depending on whether the aforementioned
offences are compoundable or not, mediation may be possible under special
circumstances. This will be discussed in-depth later in the essay.

2.  Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013 (Workplace Act)
The Act aims for “prevention and redressal of complaints of sexual harassment at
workplace”. Under the act an “aggrieved women” can belong to any age,
employment status (interns, permanent, part time/ full time), whether in organized
or unorganized sectors (domestic workers, daily wage labourers), public or private
and has been subjected to any act of sexual harassment. An Internal Complaints
Committee, having at least 50% women on board, is mandatory to be set up in each
office with 10 or more employees to investigate regarding complaints of assaults.
[16]
Furthermore, using mediation for redressal during the dispute resolution by the
ICC is not mentioned in the Act.

3.  Protection of Children from Sexual Offences Act, 2012 (POCSO)

[17]
The act gives provisions for protection against Child Sexual Abuse. Mediation
must not be allowed in cases under POCSO because it is not healthy for a child’s
mental health. The process of mediating the abuser will not only be traumatic for
the child but will also defeat the purpose of the law by diluting the essence of the
grave crime.

4. Protection of women from Domestic Violence Act 2005[18]

The Act along with IPC Section 498A[19] (cruelty towards a married women)
protects women from being abused and harassed in the household. The Supreme
Court has recommended mediation in cases of matrimonial disputes arising out of
such issues. In case of K. Srinivas Rao v. D.A. Deepa, a case regarding Section
498A of the IPC, the apex court noted that “mediation, as a method of alternative
dispute redressal has got legal recognition and ordered all mediation centers to
make efforts to settle matrimonial disputes at pre-litigation stage.”[20]

5. Indecent Representation of Women (Prohibition) Act, 1987

Under the Act, if an individual harasses another with print media etc. containing
the “indecent representation of women”, they are liable for minimum sentence of 2
years.[21] Mediation may be possible if both the parties are willing and consenting
to the same.
 6.  Information Technology Act, 2000
Under Section 67 of IT Act, “publishing/ posting / transmitting lascivious material
on a public online platform with an intention to defame or harass a woman, shall
be punished on first conviction with imprisonment of 1-5 years and for second or
subsequent conviction with imprisonment of  5-10  years with fine.[22] Under this
Act mediation maybe possible if parties are willing to settle amicably.

Procedural law
1.      Mediation out of court
Parties to the case are enabled to approach a mediation centre or a mediator even
without a court order in what is referred to as ‘pre-litigation mediation’ to resolve
the dispute before filing a case to explore the possibility of dispute resolution
without court intervention.[23] If both parties are equally ready to reach a
compromise, only then this method is viable for redressal of cases pertaining to
sexual harassment.

2. Mediation in Court
2. 1. Pre- trial procedures:
The basic procedural law asks the survivor to file an FIR with the police. Once the
case is filed, police investigation takes place and a police report is filed before the
magistrate. On the basis of the evidence collected, either a Charge Sheet or a
Closure report is requested by the police. If a charge sheet is filed, the magistrate
takes cognizance and summons the accused for trial.

2.2. Mediation in criminal cases:

Once the case reaches the trial stage, depending on whether the offense is
compoundable or not, the scope for mediation can be gauged. The Compoundable
criminal offenses are given in Section 320 of the CrPC and allow for settlement
and the other offences as non-compoundable vide Section 320(7). The scope for
mediation in compoundable and non-compoundable sexual offences is discussed
below.  
2.2.1 Mediation in compoundable offences:

Sections 294, 499, 503, 509 of the IPC are compoundable. They allow for
settlement which can be reached through mediation. In the case of Dayawati vs
Yogesh Kumar Gosain, the Delhi High Court declared the following: “Even
though there exists no express statutory provision enabling the criminal court to
refer the parties to alternate dispute redressal mechanisms, there is no bar to
utilizing them for the purposes of settling disputes which are the subject matter of
offences covered under Section 320 of the Cr.P.C.” Furthermore, the court
explained that if a mediation agreement reaches the criminal court, the court
cannot rely on that agreement and pass a civil decree, it can only on the basis of the
evidence either convict or acquit the accused and if the case is compounded, the
compounding will have the effect of an acquittal under S. 320(8) of Code of
Criminal Procedure.[24] This has far reaching consequences as the aim of deterring
for the crime via imprisonment or fine would be diluted.

Additionally, though the Supreme Court in Afcons Infrastructure Ltd. and Anr. V.
Cherian Varkey Construction Co. Pvt. Ltd. and Ors. said that ADR is unsuited for
prosecution of criminal offences; the judgment also notes that the categorization is
“illustrative and flexible”.[25] Thus, it can be noted that there is no judicial
pronouncement prohibiting mediation in criminal compoundable cases.

To conclude, under appropriate circumstances, compoundable sexual offences can

be mediated after approval from the respective High Court, if the parties to the trial
are equally willing to undertake mediation for solving the dispute.

2.2.2. Mediation in non- compoundable offenses:

Non Compoundable Offences under the IPC cannot be settled because of their
grave nature and the impact they have on the society. Earlier, sexual harassment
under IPC Section 354 was compoundable. Then in 2009, settlement under the
section was barred via amendment. Over expanse of many cases, another legal
mechanism developed which allowed for mediation against non-compoundable
offences. It has to be noted that the Supreme Court in many instances has
authorized for ADR in non-compoundable cases. In the case of B.S. Joshi and
others v. State of Haryana and another, the Apex Court observed that “in view of
the special facts and circumstances of the case, quashing criminal proceedings
under exercise of powers under Sec 482 Cr.P.C. is allowed even where the
offences were non- compoundable.”[26]

In K. Srinivas Rao v. D.A. Deepa, the apex court noted that in appropriate cases, if
the parties are willing and if there exist elements of settlement, the criminal court
should direct the parties to the possibility of settlement through mediation while
not diluting the rigour, efficacy and purport of the non-compoundable offense. The
High Court will quash the criminal complaint only if under all circumstances it
finds the settlement to be equitable and genuine. Such a course, in the court’s
opinion, will be beneficial to those who genuinely want to accord a quietus to their
disputes.[27]

In Gian Singh v. State of Punjab , the Apex Court has recognized the need of
amicable resolution of disputes , by observing as under:- “The High Court may
quash the criminal proceedings if in its view, if it would be unfair or contrary to
the interest of justice to continue with the criminal proceedings would tantamount
to abuse of process of law despite settlement and compromise between the victim
and the wrongdoer and whether to secure the ends of justice, it is appropriate that
criminal case is put to an end and if the answer to the above question(s) is in the
affirmative, the High Court shall be well within its jurisdiction to quash the
criminal proceedings.”[28]
In the case of Parabatbhai Aahir and Parbatbhai Bhimsinhabhai Karmur and Ors
Vs State of Gujarat and Anr, the Supreme Court stated that the power under
Section 482 is to be exercised sparingly and with caution. The High Court must
have due regard to the nature and gravity of the offence. Heinous and serious
offences involving mental depravity or offences such as murder, rape cannot be
quashed because these offences not private in nature but have a serious impact
upon society.[29]

Thus, it can be concluded that criminal cases pertaining to sexual harassment may
be mediated in the court of law under special circumstances. It is possible on the
discretion of the respective High Court under section 482 of the CrPC, that too
only when both parties are equally willing to reach a compromise and resolve the
dispute using mediation.

Mediation in Criminal Cases Involving

Sexual Harassment: Other Countries
In the USA, mediation though generally preferred for dispute resolution in civil
cases, is gaining popularity in criminal cases too. Under criminal mediation
programmes, victim-offender mediation is becoming popular. It is a process
wherein, the victim and the offender of the crime are brought together to meet
face-to-face under the guidance of a trained/professional mediator.[30]

Mediation in the United States is governed by the treaty UNCITRAL[31] (United

Nations Commission on International Trade Law) to which the US is a signatory
and the Uniform Mediation Act (2003).[32] The United States Court of
International Trade also has a court-annexed mediation programme. Mediation of
sexual harassment claims is very prominent in workplaces all around the USA. It is
also recommended by legal practitioners, especially in cases of workplace sexual
harassment.[33] Sexual harassment claims are more often than not mediated in the
country due to various reasons that will be discussed later.

Australia has a lot of takers for mediation in cases of sexual harassment,

especially in cases at workplace. Workplace mediation is an acceptable form of
dispute resolution even though it falls under criminal offence as per the Sex
Discrimination Act, 1984.[34] According to Australian Human Rights
Commission, it aims at resolving sexual harassment complaints at employment
through mediation and conciliation. The AHRC has its own conciliators and
mediators who work according to the Commission’s rules. By developing a system
for mediation, the AHRC maintains that its purpose is to provide the victims with a
choice out of court for resolution of sexual harassment complaints.[35]
Mediation is a voluntary process primarily used in civil proceedings in United
Kingdom. The court went further in Halsey[36] to state that “in our view most
cases are not by their very nature unsuitable for ADR.” However, there are limited
areas where it will not be appropriate, such as criminal prosecutions and certain
intellectual property matters. Recently though, some judges have expressed the
possibility of allowing mediation in criminal cases but that possibility is yet to
develop into anything substantial.[37]

Canada is a signatory to several international treaties that refer to mediation and is

a member of the United Nations Commission on International Trade Law
(UNCITRAL) and the International Chamber of Commerce. There is no
overarching law relating to mediation in Canada. However, mediation is generally
available to resolve a wide variety of disputes, including labour disputes, human
rights complaints and family law disputes.[38] Canada has no history or present
sources of law to show that it incorporates mediation in criminal cases.

Sweden, Romania and Tanzania allow mediation in such cases to a limited

extent. Sexual harassment claims are seldom resolved by
mediation. Germany only allows mediation in criminal cases up to the extent of
cases of misdemeanour with victim-offender mediation. This can be extended to
sexual harassment claims as well where victim-offender mediation is
prevalent. Italy allows for mediation in juvenile proceedings and in criminal cases
with complaint filed by the victim which can be permissible for sexual harassment
claims.[39]

Thus, it can be concluded that mediation in cases of sexual harassment has

received mixed response, globally. This is because using mediation to settle a
criminal dispute has its own advantages and disadvantages which play out
differently with changing social, political, economic and cultural contexts. These
merits and demerits will be discussed below.

Mediation: Pros vs Cons

Why Sexual Harassment Claims should be mediated –

Mediation is a voluntary process that ensures confidentiality of the victim,

offender and the employer in cases of workplace sexual harassment. The need for
privacy of these sessions is to prevent loss of reputation for business and
individuals. While court cases are on public record, mediated cases are a personal
affair.[40]

Mediation is also a method that costs much less than ordinary litigation, which

assumes expenses in terms of court fees, attorney fees, etc.[41] More importantly,
it places lesser evidentiary burden on the complainant to prove his/her case as
opposed to litigation.[42] Mediation promises a faster resolution to issues of
sexual harassment than courts which take months and sometimes years to resolve
such disputes, effectively prolonging the victim’s trauma.[43]

The most important reason why mediation should be preferred is the fact that it is
the parties who get to decide the outcome of their dispute by mutual agreement.
They do not have a binding judgement that leaves one or both the parties
unsatisfied.[44] Therefore, it is a tool of empowerment for the parties due to their
involvement. The parties are thus more likely to respect and adhere to the decision
because of them shaping the solution themselves to fit their needs the best. The
solution, in cases of sexual harassment at workplace, could be in the form of an
apology, policy changes, staff training, etc. because of the personalized nature of it,
which a court cannot allow for.[45]

Another important benefit of mediation is that it allows dialogue between the

parties affected. By conversing with each other and getting to the point where they
agree to the solutions put forward, they understand the positions of each other and
carve out a mutually agreeable position.[46] In a lot of victim-offender mediations
victims of sexual harassment find that confronting their offender in a safe and
controlled setting, under a mediator’s assistance, returns their stolen sense of
safety. Victims who participate are provided with an opportunity to ask questions,
address the emotional trauma caused by the crime and its aftermath, and seek
reparations.[47] When the accused is directly confronted with the consequences of
his/her actions and is asked to explain them, it can be a very powerful tool to
provide closure to the victim.[48] In this way, the harasser truly understands the
position of his/her victim and tries to amend the wrongs by offering the victim a
sincere apology and a promise to mend his ways.[49]

Mediation avoids damage to working and business relationships in cases of

workplace sexual harassment. It often preserves the quality of continuing
relationships as everyone is more likely to accept the outcome as fair instead of the
declaration of a winner and a loser in case of trial.[50] It turns out to be a more
effective method that also deals seriously in such cases.

In cases of workplace sexual harassment, mediation turns out beneficial for even

the employer because it protects the employees’ relationship with them. Further,
as a result of mediation, the employer may be able to take steps to protect
employees from sexual harassment without having to compromise the company’s
reputation because of a certain defaulting employee.[51] For these reasons,
employers should integrate mediation into their dispute resolution policies and
encourage employees to mediate any sexual harassment disputes that arise.[52] It
is also to be noted that forced mediation at workplace should be avoided at all costs
as it curbs the liberty of the victim further.
Sexual harassment claims often involve power imbalance between the offender and
the victim. The victim, being at a disadvantaged position already may be
manipulated or forced to accept solutions that he/she may not have wanted.
Establishing certain safeguards such as presence of counsel for the victim in
victim-offender mediation can help him/her. A counsel assuming an advisory role
can effectively make the offender understand the victim’s position from his/her
point of view. Further, an attorney can advise their client as to the implications of
certain decisions that they may take.[53]

Lastly, mediation as a method should be preferred because it is known to work

effectively and satisfactorily instead of other methods such as litigation or
arbitration. Mediation has been known to resolve conflicts 85% of the times it is
used.[54] It is a widely recommended method by legal advisors and attorneys. An
ADR program instituted by Equal Employment Opportunity Commission of the
USA in 1992 registered a success rate of more than 50% in mediation cases with
ninety-two percent of the parties rating the mediation process as “very fair” or
“fair”.[55] In a recent study, 77% of the claimants who mediated their disputes
were satisfied with the process, compared with only 45% of those whose disputes
went to arbitration.[56]

Why Mediation should be avoided in cases of sexual harassment –

Mediation requires equal willingness and voluntary participation from both parties
involved. As a result of this arrangement, the probability of a survivor opting to
mediate the criminal dispute with her violator is very low. This is because sexual
harassment has a huge impact on the mental and physical wellbeing of the survivor
and talking out the dispute by sitting across their offender will harm the dignity of
the victim as she will have to suffer again.

The biggest disadvantage to mediation in cases of sexual harassment is that the

concept of mediation aims for settlement of an issue rather than providing justice
for the crime. Justice under criminal law aims to provide deterrence to the society.
Mediation may result in diluting the essence of the criminal justice system.

Furthermore, it is difficult to differentiate between grave crimes like rape that are

considered unfit for mediation due to their heinous nature and those crimes which
are considered to be of lesser intensity and thus may be mediated. This becomes
especially controversial in the case of an issue as critical as sexual harassment.
Another tricky part of mediating the criminal dispute in cases of sexual harassment
is the determination of “consent”. Even when litigated with formal procedures
under the adversarial system in the court of law, determining whether the consent
of the survivor was violated is a difficult task. Under mediation it may become
further complicated because in criminal cases the charges have to be proved
beyond reasonable doubt. As there exists lack of corroborative evidence in cases of
sexual harassment, proving the crime while mediating becomes troublesome.
Mediation is at a very nascent stage in India. There is a lack of proper
awareness regarding mediation and there exist no substantive and procedural laws
to facilitate it in criminal disputes. When it comes to an issue as precarious as
sexual harassment, mediation seems very difficult to implement. Also, mediation
doesn’t guarantee any protection of the victim during and after the dispute is
mediated. Nor does it guarantee that the accused won’t commit the crime again.

India lacks a proper grievance system for gender based violence. Mediation in
cases of sexual harassment is underdeveloped at present and thus it may fail to be
accessible, affordable and guarantee inclusivity for people belonging to all social
strata. Additionally, sexual harassment is rampant in underprivileged and backward
groups but their socio-economic conditions prevent them from accessing the same
resources as the privileged groups. This makes grievance redressal
more inaccessible for the underprivileged groups.

Another reason to avoid mediation is that there is no system of checks and
balances to prevent power imbalance, coercion, political influence and bias
creeping in when the dispute is being mediated between the parties.

Conclusion
Sexual harassment is an issue that pervades every corner of the world and
considering recent developments, it can definitely not be ignored. We must explore
solutions to address this issue effectively because the current systems of redressal
have several loopholes due to which grievance redressal becomes expensive, time
consuming and harmful to the victim itself.

Mediation is one such new method that has been seen to effectively address sexual
harassment complaints, accompanied with several benefits to the victim. It is a
cheaper method that takes much less time and saves the victim of agony that she/he
may face in court tribunals. It is also a much more convenient method that enables
a dialogue between the victim and the accused so that they reach a mutually
acceptable decision. However, on a closer look, we notice that mediation is not a
completely effective method because it is inaccessible, biased towards the offender
and subject to manipulative practices by employers and the accused. In India,
sexual harassment is not taken very seriously in the society. In an environment of
victim blaming and shielding of the accused, it puts an added pressure on the
victim to settle the matter and not pursue litigation because she also fears for her
reputation.

Mediation can prove to be an excellent grievance redressal mechanism if it

becomes more victim-centric and provides special safeguards to the victim. It is of
utmost importance in mediation of sexual harassment complaints that the victim
must be accompanied by a counsel who would assist them and represent their case
completely to the other party. This can, to some extent address the power
imbalance that exists between them.

Lastly, mediation can be practiced in cases of sexual harassment only if it is

mutually agreed to by both the parties with free consent. It has to be ensured that
the victim hasn’t agreed to mediate due to external pressures. The mediation
technique must have special provisions for the victim so as to facilitate the
dialogue and dismiss any possibilities of domination by the accused. It is important
that the needs of the victim be kept at the forefront so that it can turn out to be a
fair and reasonable method. With these provisions, mediation in sexual harassment
cases will be a fruitful exercise that will be used to empower the victim.