Every act done against the will of a person, is done without the consent and any such act done without the consent of that person which further harms him, is considered to be wrong in eyes of law. And one such much prevailing wrong in the society is rape, which is considered to be one of the most immoral acts that a man could do.

To be very precise, Rape is any act (sexual) or intercourse done to a human against his or her will or consent so as to fulfill one's sexual desires. In a society rape is committed against both men and women and against transgender as well for that matter, but the pity is that the laws consider rape to be against women only that further makes the situation more vulnerable. Most of the time such laws render the other gender helpless of the atrocity being faced by him.

Prison is one of the institutions of the society which serves as a reformative place for the one who does not abide by the law or creates distress in the society. Being a part of the society, crimes do exist in prison as well and to be more specific rape culture do exist in prison and is often more unheard by the society and the authority.

Life in prison is itself a rigorous one and these such heinous acts done to them adds more to their sufferings and renders themselves to such a situation where they find themselves hopeless and exploited. In this paper we will look into the problem of rape and sexual assault in prison and various legal challenges faced by the inmates and what the society views about this topic. And in the end we shall also be discussing the reforms which can be made to cope up with such problems to some extent.

Introduction:
Custodial Rape and sexual violence (inside the prison) is the most ignored and unfortunately the most under-rated topic that is rarely been discussed. Though we are very much sensitive about rape and other sexual assaults committed against women (generally) and well aware about the growth rate of these offences, which had ultimately caused terror in the society; yet we fail to recognize the same against men (in India).

We become even more ignorant when such cases are reported by the prisoners. We are not sympathetic towards the criminals and many of us in this regard think that it is better to subject the criminal to the same heinous act that he had committed, that is to say that punishing the criminal retributively in order to assure and satisfy the society and the victim that the criminal has been punished accordingly and it is believed that this could also probably deter the other people in the society, who likely had the criminal motives and intentions from going forward and commit crime.

Prisoners are often subjected to rape and other sexual assaults and these acts are generally justified by, not only the custodial staff but also by the other inmates, on the ground that the criminal had been made to suffer the same way as he had made the victim suffer because after all they are considered to be the demons and hence they should be subjected to ill-treatments and no sympathy should be shown towards them.

Due to the apathetic attitude of the police and other justice machineries, the prison rape cases and the sexual assault cases fail to come into the limelight. Justice is for all and all should have the access to justice, this is something that our constitution believes in and had expressly laid down in article 14 and in article 21[i] but it is rarely implemented in the case of prisoners. Statistics shows that rape or sexual assault is committed more frequently against men than against women inside the prison and interestingly Indian Penal Code fails to recognize rape against men.

Adding to this fact, people who belong to the LGBTQ community are even in more vulnerable state in the prison. It's not merely the fulfillment of lust or for sexual gratification, rather it's the about the power and control one or more inmates can merely have on the weaker inmates in order to establish their dominance in order to create the atmosphere of threat so that no inmate can go against the violent and stronger groups.

Consensual acts are also noticed, that is, when the weaker inmate by his own free will and consent indulges himself into the sexual activity in order to have the support of the stronger inmate, but such cases are less in number and mostly the coercive consent[ii] is seen. Staff members, mainly the guards of the prison are also involved in such offences and they believe it to be the part of the life of the prisoner.

The mouths of the prisoners who had been subjected to the sexual violence and rape are shut by these staff members as they promise to provide them with all the essentials and goods which they would demand and shall also provide them with comfort if the prisoners would, from the next willfully indulge in the sexual act and the ones who does not agree to this promise are subjected to even more heinous torture and violent acts. Even if somehow such cases are reported, they fall short of evidences as shown by several statistical studies and therefore no action could be brought against the inmates or against the staff.

Rape inside prison can render the person insane or can cause unsoundness of mind. It can be bloody, can be traumatic[iii]both physically and mentally and can result in severe medical disorders like post-traumatic stress disorder (PTSD), acute depression, somatic disorder, etc. and may make the victim incapable of forming social relations.

The prison culture:
The culture inside the prison is mainly impacted by the following three conditions:
Firstly, a culture inside the prison is mainly formed from the fusion of norms, values, ideals, beliefs that an inmate would be bringing with himself as the prisoners come from the varied lives and thus, there characteristics, values and beliefs are not the same. Secondly, prisons are separate society, a society which is isolated from the other societies and thirdly the culture inside the prison is basically constructed upon the rules, policies and the practices of the prison itself.

Culture becomes significantly important while dealing with the prison life as the culture is the only medium by which the rules and ideologies followed by the prisoners can be known. A culture is supposed to be followed. New inmates find hard to deal with the prison culture, they do not know how to behave in the prison and are thus, often not able to able to adjust with it. They are often bullied and sexually harassed by the already living inmates in order to punish them and to establish their power and control over them.

The culture inside the prison is mainly formed on the grounds of fear and dominance. Sexual acts also contribute to architect the culture of the prison. Studies prove that delineating from the ideologies of the stronger class of inmates is considered as the major cause of sexual assaults. Studies show that the constant fear of sexual assault persists within the prisoners.

The inner homosexual: prison culture is often based on this ideology. Studies show that the inmates believe that all men are homosexual in nature. All men have sexual desires and lustful tendencies and hence, it does not matter that whether your partner is of the same gender or of the opposite gender.

But contrary to this rationale, a women's prison sees inner homosexuality in a different way. According to them, it's like assaulting those women who have not been able to accept their inner homosexuality.

Within the rationale of the prison culture, if an inmate does not accept himself/herself to possess dual sexuality or accept his/her inner homosexuality then that inmate is considered to be weak. What is considered important in the prison culture is the open acceptance of homosexuality by an inmate. If the inmate openly admits that he is a homosexual also, he is then respected because he is considered to be a true man, a man who is honest with himself.

Sexual Violence In Prison:

Abruptly touching the private parts of the inmates in order to bully them or intentionally forcing them to indulge in the sexual acts is very common inside the prison. Consent given willfully or consent obtained by the use of force is immaterial. Studies show that new inmates, inmates of unsound mind and inmates belonging to the LGBTQ community are in more vulnerable state inside the prison than other inmates. Perpetrators use the methods of either deceiving or intimidating or providing threats but more often the use of force and power is seen is to be used against the target in order to indulge them in the sexual activity.

Resistance is no escape as resistance is perceived as the challenge by the dominating inmate and thus in order to prove his power and strength, he puts the inmate into the more threatful condition and more violence is used against him. Prisoners who are more frequently subjected to assaults and rape, is after sometime perceived to be the sex slave for the other prisoners. Once an inmate is turned out then it becomes very hard for him to regain his heterosexual status back. To escape sexual violence and assaults, some prisoners think that it is better to choose death than to live as a prey for vultures.[iv]

It is believed in prison culture that an inmate suffered sexual violence because he was not able to control his destiny; he allowed it to happen and that's why it happened.

What motivates the inmates to sexually abuse another inmate is that they are sexually deprived and as we all know that masculinity is perceive to exist only when a man through sexual subjugation of the weaker.

Battering and trading for sex: it is generally seen that consenting to have sex with the powerful inmates in return to get favor, gifts and protection by the stronger inmates. This is the mainly the most prominent cause which give rise to the consensual sexual acts. Approaching the new inmates with the offers to give them protection against the threats, real or imagined from the other individuals is a greatly followed. The main intention here is to obligate the person to sexually favor the powerful innate and then he shall seek protection by the powerful inmates.[v]

Laws relating to Custodial Rape in India:
Indian penal code defines Rape in section 375[vi] and lays down 7 circumstances falling under which a man is supposed to have committed rape. It states that a woman is said to have been raped by a man: if she is forced to have oral sex or penetrative sex( anal or vaginal) or if the consent of the woman is obtained deceitfully by making her believe that she is legally married to that man or if her consent is obtained by causing fear of death or of grievous hurt or if her consent is obtained when she is either intoxicated (the intoxicant can also be administered by that man) or is of unsound mind or if the girl is a minor,(that is to say that she is below 18 years of age, as per juvenile justice (care and protection) act of 2005); the consent of the minor girl make no difference and amounts to rape or if the woman was not able to communicate her consent.

Section 376 of Indian Penal Code make the provision for the punishment for rape. Clause 2 of section 376 basically intends to take within its ambit the custodial officers and defines circumstances under which they can be charged with an offence of rape against women.

Section 376 (2) (a) says a police officer is said to have committed rape against the woman, if the woman was present within the limit of the police station of which the police officer is appointed or the woman was within the premises of that station or if the woman was in the custody of the police officer or a subordinate police officer who was under that police officer;.

Section 376 (2) (b) hold the private officer accountable of committing rape against a woman if the woman was in his custody or was in the custody of his subordinate (subordinate public servant); section 376 (2) (c) hold the officers of the army accountable for committing rape; section 376 (2) (d) hold the staff members of the jail (including the managerial staff), of the remand homes or other places of custody provided that such places should have been constructed under the law (and that law should be in force at that time); accountable for committing rape against any prisoner behind the bars or any inmate of remand homes and other institutions. Such custodial officers can be subjected to the rigorous punishment which shall be for minimum 10 years, with fine and may extend to the imprisonment for life.

Thus, it can be observed that the Section 375 and section 376 of the Indian penal code only recognizes rape against females, which portrays the male dominance in the society. India is basically a male dominated country, a country where patriarchy prevails. Females are considered to be a weaker and a more vulnerable class and hence they can be easily forced to submit themselves to the men as men are considered to be more powerful, also it is believed by the society that men have more sexual and lustful desires than females…possibly these might be the reason behind the enactment of this provision only against females.

Let's agree to the intention behind protecting females in the society, perceiving their vulnerability, but a question here arises that, are females completely protected by this law? What if the woman forces the other woman to have oral sex with her or may force that woman to do such an act with her or with any other person, will it then not amount to rape? Well as far as we can observe, it won't amount to rape under our criminal law system but would amount to Unnatural Sex under section 377.

Section 375 of Indian Penal Code expressly states that rape is also said to be committed by a man: if anybody part other than the penis is inserted into the vagina/urethra/anus, or if any object is inserted into the vagina/urethra/anus of the female or makes her forcefully to such acts with him or with any other person or if the man apply his mouth to her private parts or if ask her to do the same, but fails to recognize that even the women can cause other women to indulge in such acts coercively and not by consent…the intention of safeguarding females seems fading here. It becomes more vulnerable when it comes to the women prisoners. They are often subjected to forceful oral sex and Section 376 (2) clearly fails to recognize this.

There are many flaws that exist in our criminal law system, that have now become the need of an hour to be rectified in order to provide justice to all irrespective of their genders. Rape against a woman by another woman, rape against a man by a woman or by a man, rape against transgender should also be given the equal recognition. Rape is considered in such a generic sense in India that no attempt has been made to recognize rape against men and against the LGBTQ community.

Though the law called 'Protection of children from sexual offences act, 2012' has been firmly enacted to recognize rape against both the minor genders, that is to say that, this law recognizes rape against both the minor girl and the minor boy yet we can observe that The rape laws in India deliberately ignores the large swathe of male victims who had survived rape. We can observe that attempts have been made to resolve the issue of gender biasness in the year 2013, by the criminal law amendment act which aimed at recognizing rape as a gender neutral offence but unfortunately this objective seems to be ineffective as it significantly omits the word rape and instead recognizes the sexual assault.

The parliament continues to perceive women as the weaker section of the society and therefore considers her to not be in the position of forcing herself onto someone or rather we can say that the women are incapable of committing the offences that can be committed only by power, control and dominance. And this is the reason that many time Courts are found struggling when the case relating to rape is seemed wherein the victim is forced by another woman. Due to the explicit mention of the phrase in section 375 rape can only be committed by a man by the parliament, the court struggles hard while providing its judgement.

Often men are subjected to assaults and rape by other men but this is perceived as mere homosexual acts. The victim in such cases are perceived to be less masculine and more misogynistic by the society. Section 377 had recently been made as an anti-sodomy law.[vii] Of course it provided gay rights but at the same time it fails to recognize sodomy as rape and makes no provision for recognizing consent for sexual acts between two men.

In prisons inner homosexuality is perceived and if the man does not submit himself to the other man then that man is considered to be a dishonest man because of that the male prisoners believe in which is all men have dual sexual characteristics. The condition of the transgender woman who are kept inside the male prisons are even more vulnerable as they are considered to be more misogynistic and hence are abused more. And our Criminal Law System fails to notice these assaults and rapes.

After observing the above laws and the societal outlook, we can infer that how gruesome would be the situation inside the prison. The prisoner's point of view on sexual acts and acts of violence are entirely different from the rest of the society as the culture of the prison is mainly based on the weakness (both mental and physical weakness) of an inmate. As correctly stated by Fleisher & Krienert in 2006 that blaming victims is an age-old philosophy that exists because of the apathetic attitude shown by the society the pains and sufferings of the victims. When it comes to the prisoners the society becomes even more apathetic as the society considers these prisoners as evil incarnations whose existence is feared by all.

Hence some urgent reforms are needed in our criminal law system so as to provide each individual equal protection regardless of the class to which they belong to. The strict and rigid laws should be made in order to provide the protection to all the classes of people for both the society at large and as well as for the prisons.

Reforms that should be made:
The first and foremost step that is needed to be taken is to deeply look into the root causes of the prevailing rape culture and identify the odd elements which causes such things and further eliminate them by using lawful tools. The next thing that is taken into consideration is to make amendments in rape laws of India and make it gender neutral as the crime cannot be committed against a particular gender and if an act is wrong against one gender then in no sense it can be excusable for other gender. By doing so, rape against other gender could at least be recognized by law and can further punish the one involved in such acts.

The next thing that can be done is to spread awareness among the inmates and make them aware about the fact that the thing they are suffering is not acceptable and that they should be vociferous about it. They should also be told that the prison is governed by the rules framed by the authority and they need not to follow any other norms made by the fellow inmates and zero tolerance policy should be made against such atrocities. It is many a times observed that victims are blamed for the act committed against them, this should completely be ended and rather full focus should be given to the accused and to sub serve the justice to the victim.

The next thing needed to be done is to reform the social thinking and beliefs. People should be told that even though a person is convicted of an offence that does not give the society to punish him or justify any wrong act done to them by saying that they deserve it. Lastly various other steps should be actively taken by the authorities and concerned people to eliminate such heinous acts by various tools like psychological, counseling, Punishment etc.

Conclusion:
Rape is a heinous crime that not only disturbs and haunt the victim but also the society and prison rape is even more heinous and a serious issue that needs to be dealt with strict policies and law. Several studies show that victims of rape inside the prison are raped repeatedly, on the daily basis. Law fails to recognize such brutal acts inside the prisons. Law seems to protect only the women but what about the women who is in jail and is forced to have sex with the other inmate.

Gender biasness should not exist while formulating rape laws. It is an urgent need of hour to provide the equal protection to men and women and also providing equal safety measures for the transgender as they are most vulnerable. Studies show that life inside the male prison is more gruesome than life inside the female prison. Government should divert itself in making provisions for prisoners. According to us, instead of keeping transgender female inside a male, either sperate prisons should be designed for them or they should be kept in the female prisons.

Some people are tried for years until they are finally convicted but such people are also kept inside the jails. Why does the government make no separate provision for convicts and for the accused? sometimes the accused it found not to be guilty and is not convicted, but still that person was made to live inside the jail for months until his trial does not reach to the stage of conviction; the mental and physical torture that they go through makes them unfit to survive in the outer world. Indian law should improvise it and should compensate the prisoners who were not found guilty but were imprisoned for months or even years.

End-Notes:

1. Article 14 of the Indian constitution reads as under the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
   Article 21 reads No person shall be deprived of his life or personal liberty except according to the procedure established by law.
2. Section 90 of IPC reads: consent known to be given under fear or misconception.
3. Jonathan Sandoval (2002). Handbook of crisis counseling, intervention, and prevention in the schools. Psychology Press. pp. 1–. ISBN 978-0-8058-3615-8. Retrieved 1 October 2011
4. Ram Singh's death, the one who was one the convict of 2012 Delhi gang rape case became the victim of rape inside the prison and had committed suicide inside the prison.
5. According to the scathing report from the U.S Justice Department.
6. Section 375 of IPC reads: rape- a man is said to commit rape who, expect in the case of hereinafter expected, has sexual intercourse with a woman under circumstances falling under six provision
7. Navtej singh Johar & Ors Vs. Union of India (2018)

Written By: Vidhi Gupta