Custodial Rape, How Much More Real Can It Get
Introduction
'Women do not get raped because they weren't careful enough. Women get raped because someone raped them.'- Jessica Valenti[1]
Rape is a form of illegal activity or unlawful act, which is often in form of sexual intercourse without the consent of the victim and, or against her will by fear of fraud. The word rape is derived from the Latin term meaning rapio, which translates to mean to seize. Thus, the act of commission of rape is the seizure by commission.
To understand the concept of custodial rape it is essential to understand what the terms 'custody' and 'custodian' are. Someone can be said to be under the 'custody,' if the given person is under absolute control, strict supervision and care of a person or entity known as 'custodian.' Therefore, in furtherance of this, we define custodial rape as the type of rape that occurs when rape is performed as an activity by someone who is in a custodial position; like a public servant, jail, police officer, or hospital employee. The definition of custodial rape also includes gang rape and rape of a pregnant woman.
Rape, one of the most gruesome crimes that we witness is also an example of one which is not very rare. As saddening as that sounds, it looks worse put into statistics. It is found that every hour, two women are raped in our country. Uttar Pradesh is the one state that tops this number. The fault of which can be ultimately rooted down to one factor, and that is the mindset of the rapist. This mindset, which is passed down from generations. Rape as an oppressive tool has been used then and now to dominate women.
Custodial rape is treated as a graver crime with tougher punishments than rape, but alas the prosecution for the same remains shockingly low.
Out of these many gruesome acts, rape especially custodial rape was an act that was used as a tool of despotism.
Many cases of custodial rape also came to light. These heinous acts lead to major women movements and awareness in the judiciary and society.
Some cases that were major causes of these movements were:
The laws related to custodial rape in India were amended after the infamous, Mathura rape case.
The laws that are in relation to custodial rape, under section 376(2) are more vigorous and severe than laws under section 376(1.) This is due to the advent of amendment and incorporation to that section by Criminal Law (Amendment) Act, 1983.
The punishment for the given crime is ten years of rigorous imprisonment, up to life imprisonment with a fine.
Before the year 2013, anyone wanting to lodge a complaint against a public servant while discharging their duty required sanction by the central government or state government. This was due to Section 197 of the Criminal Procedure Code. Although after the Criminal Law (Amendment)Act, 2013, this was altered and now the need for sanction required by the central government or state government is nullified.
Case laws
her consent was voluntary; under the circumstances, only sexual intercourse could be proved and not rape.
On further appeal to the Bombay High court, the judgement was given and the defendants were sentenced to one and five years of imprisonment respectively. The case in furtherance went to Supreme Court where the accused were acquitted, and it was observed that 'There was no injury she had suffered, therefore it could not be concluded that the girl had been subject to any fear or was constraint such as it would justify an inference of passive submission.' [2]This case law led to mass protests and women's movements, and as a result, the Government of India amended the laws relating to rape.
Adverse effect on victims
'I just want to sleep. A coma would be nice. Or amnesia. Anything, just to get rid of this, these thoughts, whispers in my mind. Did he rape my head, too?' -Laurie Halse Anderson[5]
Psychological aspect
Rape has been used time and again by men to suppress and oppress women. Victim blaming is the most common case scenario that follows. Women here with no fault of their own and up feeling feelings of guilt, shame, embarrassment and fear. The psychological effect on women's minds, due to the traumatic effect of the heinous act, can never be compensated by any kind of punishment inflicted upon the perpetrator.
The mindset towards rape as a crime has been changed over the years, undoubtedly; but there is still a mile that we need to cross. The women are often blamed for the incident, wherein people try to make it their fault.
It takes years of research to comprehend what a rape victim has been through and how they process the trauma. This follows one of the most common effects on women which is a phenomenon known as 'Post Traumatic Stress Disorder (PTSD.') PTSD is a psychological disorder where a person that is a victim of some grave circumstance suffers through trauma. People who suffer from severely disturbing events of trauma, like army combat or some sort of violent crime usually suffer through this disorder. They experience flashbacks, recurring thoughts which are very disturbing and others of sadness or fear. They tend to avoid the occurrences which remind them of the event.
In a study conducted by 'National Violence Against Women Prevention Research Center', known as 'National Women's Study', the following statistics can be observed, about a rape victim suffering from PTSD. It is observed that almost one-third of all the rape victims, which is a total of 31%; develop suffer through PTSD, and one in ten victims, which is 11% still have it today. [6]
Problems with prosecution
The irony that exists is that the government is supposed to act as a protector of people, while custodial rape is something that occurs due to the maleficent act of the public official. Legal custody is a place where a citizen expects to be safe, and custodial rape makes out the most unsafe place to be at.
Out of the many problems that exist the cases reported do not match the actual numbers, and there exists a shocking gap there. The fear of intimidation and judicial proceedings against officers also prevents rape victims from reporting. A report by the National Crime Bureau concerning the reporting of rape cases states that there are only 29% of reported cases reported; and only a 32.2 per cent rate of prosecution. [7]
While these are just the statistics for the prosecution of a rape victim when the same is for custodial rape it becomes even tougher and narrower. There exists a very low prosecution rate for public servants and then comes the factor of suppressing evidence and evidence tampering. Along with this political pressure is applied and covering of evidence occurs, with police officers in cases making it extremely difficult to even lodge complaints. Among all the obstacles a rape victim has to face, the added pressure of issues that come while prosecuting a public servant is just another added burden.
Law reforms and the need for reforms
Due to various women movements during the year, there existed a need for law reforms along with the failure of the prosecution.
Transfer in the burden of proof:
As for a general rule the accused in any court proceeding is looked at as 'innocent until proven guilty.' In the case of custodial rape, this works differently, due to the advent of Section 144A of the Indian Evidence Act. This change was brought about due to the immoral ways of evidence tampering and other obstacles which occur while prosecution of the public officers.
In this scenario, if the prosecution is the one able to prove that there has been an occurrence of sexual intercourse, and the woman states it to be without consent; the consequence to that is to be looked at as absence of consent. And thus, the burden is upon the accused to prove that it was otherwise.
Change in punishment- In the year 1983, in furtherance to law amendments, the punishment for custodial rape under section 376(2) was increased as different to 'rape' section 376(1.) The prescribed punishment for the given crime is ten years of rigorous imprisonment, up to life imprisonment with a fine.
Even after all these reforms there still exists a need for further reforms. As per the law, failure in the performance of the obligation is punishable, but there is not enough progress. Apart from the context, the public officials are still not liable and there exists a pertaining failure in helping the victim. The public servants are not as accountable as they should be and the need for change is immediate. The minimum punishment for custodial rape needs to be increased and the pathway for reporting and prosecution by the victims needs to be made easier.
Conclusion
'Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there.'[8]-Kurt Cobain
To conclude the given scenario, we can know that we have come a long way since when custodial rape was recognized as different from rape and since the term custody was expanded in the year 1983. We still have a very long way to go to reach an ideal and safe environment for the women in the country. Legal custody is somewhere an individual is supposed to feel safe, and not the feeling of fear or intimidation.
The sentence for the offence is supposed to be ten years of rigorous imprisonment, up to life imprisonment with a fine. Although it is observed that in most cases the convicts are let go after a three-to-four-year period, with minimal fine. The need for accountability and action which is in the form of punishment is more pressing than we can realize. In such trials, a rapist is let go after a minimal punishment for a crime so grave, whose trail also in an ironical way is more harassing for the victim; instead of the culprit. This just sets a negative example for the society at large.
We need to break the cycle of rape culture and the mindset behind it. This mindset passed down through years and generations, needs a shift of dynamics, such that the grave nature of the crime has a place and realization in the minds of the future generations. There is an immediate need for accountability by the public officials and the setting of light for the hope of a future, where women need not fear the ones who have the job to protect them. Here the aggressors already have an undue advantage over the victims, and thus necessary amendments and awareness is the need of the hour.
References:
1 Rakshhit Kapoor, Custodial Rapes, Legal Service India, https://www.legalserviceindia.com/legal/article-6337-custodial-rapes.html [i]
2 S.K. Mishra, J., Arati Majhi v State Of Odisha on April 24, 2014, Indian Kanoon, April 24, 2014, https://indiankanoon.org/doc/198418295/ [ii]
3 Ayush Verma, Gang rape and Custodial rape, iPleaders, July 5, 2020, https://blog.ipleaders.in/unseen-scars-story-custodial-rape/ [iii]
4 S.K. Mishra, J., Sheela Devi v State of Haryana and Anr on January 06, 2016, Indian Kanoon, January 06, 2016, https://indiankanoon.org/doc/77267876/[iv]
5 Sreyashi Bhattacharya, Custodial Rape in India, Lawcian, August 17, 2020, https://www.lawcian.com/post/custodial-rape-in-india[v]
6 Ayush Verma, Gang rape and Custodial rape, iPleaders, July 5, 2020, https://blog.ipleaders.in/unseen-scars-story-custodial-rape/[vi]
7 Sahar Bhog, What is Custodial rape and Why we need to be discussing it, iPleaders, April 16, 2019, https://feminisminindia.com/2019/04/16/custodial-rape-india/
End-Notes:
Also Read:
'Women do not get raped because they weren't careful enough. Women get raped because someone raped them.'- Jessica Valenti[1]
Rape is a form of illegal activity or unlawful act, which is often in form of sexual intercourse without the consent of the victim and, or against her will by fear of fraud. The word rape is derived from the Latin term meaning rapio, which translates to mean to seize. Thus, the act of commission of rape is the seizure by commission.
To understand the concept of custodial rape it is essential to understand what the terms 'custody' and 'custodian' are. Someone can be said to be under the 'custody,' if the given person is under absolute control, strict supervision and care of a person or entity known as 'custodian.' Therefore, in furtherance of this, we define custodial rape as the type of rape that occurs when rape is performed as an activity by someone who is in a custodial position; like a public servant, jail, police officer, or hospital employee. The definition of custodial rape also includes gang rape and rape of a pregnant woman.
Rape, one of the most gruesome crimes that we witness is also an example of one which is not very rare. As saddening as that sounds, it looks worse put into statistics. It is found that every hour, two women are raped in our country. Uttar Pradesh is the one state that tops this number. The fault of which can be ultimately rooted down to one factor, and that is the mindset of the rapist. This mindset, which is passed down from generations. Rape as an oppressive tool has been used then and now to dominate women.
Custodial rape is treated as a graver crime with tougher punishments than rape, but alas the prosecution for the same remains shockingly low.
History of Custodial Rape
During the era of national emergency and the time period of the 1970s-1980, there were widespread cases of misuse of power and torture. The authorities were out of control and they were barely accountable. The use of powers by police and public authorities was arbitrary and, in this process, the personal liberty and freedom of the common people was violated.Out of these many gruesome acts, rape especially custodial rape was an act that was used as a tool of despotism.
Many cases of custodial rape also came to light. These heinous acts lead to major women movements and awareness in the judiciary and society.
Some cases that were major causes of these movements were:
- Taku Ram and Anr vs the State of Maharashtra,
- Smt.Rameeza Bee V D Armugam,
- Maya Tyagi, Meerut v. Ito, Baraut, among others
Types of custodial rapes:
The definition of custodial rape was expanded in the year 1983. It expanded the concept of 'custody,' to classify it into:- Rape by any public servant in his custody
- Rape by management or staff of the hospital on women in the hospital
- Rape by jail authorities in the police station, women's home, children's home
- Rape by police officers in the area of the police station
- Rape by a person of arm forces in the area of his deployment
Laws in India in relation
In India, rape is dealt with by section 375 of the Indian Penal Code, And the punishment of by section 376(1) of the Indian Penal Code. The concept of custodial rape in India can be described under section 376(2) of the Indian Penal Code.The laws related to custodial rape in India were amended after the infamous, Mathura rape case.
The laws that are in relation to custodial rape, under section 376(2) are more vigorous and severe than laws under section 376(1.) This is due to the advent of amendment and incorporation to that section by Criminal Law (Amendment) Act, 1983.
The punishment for the given crime is ten years of rigorous imprisonment, up to life imprisonment with a fine.
Before the year 2013, anyone wanting to lodge a complaint against a public servant while discharging their duty required sanction by the central government or state government. This was due to Section 197 of the Criminal Procedure Code. Although after the Criminal Law (Amendment)Act, 2013, this was altered and now the need for sanction required by the central government or state government is nullified.
Case laws
Taku Ram and Anr vs the State of Maharashtra:
On 26th March 1972, also known as Mathura rape case; a landmark case of custodial rape. A young tribal girl named Mathura was allegedly raped by two police officials in the premises of a police station, in a district of Maharashtra. She was left in the police station by her brothers, on account of an apparent love affair. In the judgement by the sessions court, the defendant was found not guilty, and stated:her consent was voluntary; under the circumstances, only sexual intercourse could be proved and not rape.
On further appeal to the Bombay High court, the judgement was given and the defendants were sentenced to one and five years of imprisonment respectively. The case in furtherance went to Supreme Court where the accused were acquitted, and it was observed that 'There was no injury she had suffered, therefore it could not be concluded that the girl had been subject to any fear or was constraint such as it would justify an inference of passive submission.' [2]This case law led to mass protests and women's movements, and as a result, the Government of India amended the laws relating to rape.
Smt.Rameeza Bee V D Armugam:
In the year 1978, a woman named Rameeza Bee was raped by several policemen. Her husband, who was a rickshaw puller, tried to protest and was brutally murdered. All these circumstances led to mass protests. The army was deployed in the area for the same reason. Due to these terms, an inquiry commission was set up to look into the matter. The police defended the rape and the murder, by character assassinating the victim. In furtherance of this, the commission stated that the police officers are guilty and should be prosecuted. Although, later they were acquitted on the grounds that the inquiry by the commission was not admissible in nature.Maya Tyagi, Meerut v. Ito, Baraut:
Also known as Maya Tyagi case. This case is from the year 1980, which is an essential landmark; setting up a fundamental difference between custodial rape and rape as an offence. Here, Maya Tyagi, a six-month pregnant woman was stripped naked and raped. She was taken to the police station and raped by four policemen. She was treated brutally and caused bodily harm. Her husband was shot and killed. Following this, there were widespread agitations and women's movements. This led to parliamentary debates and changes in the laws.Arati Majhi v State of Odisha [3]:
In the given case the facts are that the Central Reserve Police Force were conducting an anti-Naxalite search operation. The villagers were harassed and the petitioners' daughter and nephew were taken into custody. After that, the father alleged, that his daughter was raped in custody and the police should be charged for custodial rape. The facts of the case were examined along with critical witness examination. It was observed that with reference to Section 174 of the CRPC if prima facia evidence of rape or death is found the magistrate can inquire and take cognizance. It was found out after careful and deep inquiry by the magistrate there exists no prima facia evidence, and thus the girl was not raped in custody and it was false allegations of custodial rape.Sheela Devi v State of Haryana and Anr[4]:
A recent case from the year 2016, in this case, the victim was raped and in consequence, murdered by the police constables in the very premises of the police station.Adverse effect on victims
'I just want to sleep. A coma would be nice. Or amnesia. Anything, just to get rid of this, these thoughts, whispers in my mind. Did he rape my head, too?' -Laurie Halse Anderson[5]
Psychological aspect
Rape has been used time and again by men to suppress and oppress women. Victim blaming is the most common case scenario that follows. Women here with no fault of their own and up feeling feelings of guilt, shame, embarrassment and fear. The psychological effect on women's minds, due to the traumatic effect of the heinous act, can never be compensated by any kind of punishment inflicted upon the perpetrator.
The mindset towards rape as a crime has been changed over the years, undoubtedly; but there is still a mile that we need to cross. The women are often blamed for the incident, wherein people try to make it their fault.
It takes years of research to comprehend what a rape victim has been through and how they process the trauma. This follows one of the most common effects on women which is a phenomenon known as 'Post Traumatic Stress Disorder (PTSD.') PTSD is a psychological disorder where a person that is a victim of some grave circumstance suffers through trauma. People who suffer from severely disturbing events of trauma, like army combat or some sort of violent crime usually suffer through this disorder. They experience flashbacks, recurring thoughts which are very disturbing and others of sadness or fear. They tend to avoid the occurrences which remind them of the event.
In a study conducted by 'National Violence Against Women Prevention Research Center', known as 'National Women's Study', the following statistics can be observed, about a rape victim suffering from PTSD. It is observed that almost one-third of all the rape victims, which is a total of 31%; develop suffer through PTSD, and one in ten victims, which is 11% still have it today. [6]
Problems with prosecution
The irony that exists is that the government is supposed to act as a protector of people, while custodial rape is something that occurs due to the maleficent act of the public official. Legal custody is a place where a citizen expects to be safe, and custodial rape makes out the most unsafe place to be at.
Out of the many problems that exist the cases reported do not match the actual numbers, and there exists a shocking gap there. The fear of intimidation and judicial proceedings against officers also prevents rape victims from reporting. A report by the National Crime Bureau concerning the reporting of rape cases states that there are only 29% of reported cases reported; and only a 32.2 per cent rate of prosecution. [7]
While these are just the statistics for the prosecution of a rape victim when the same is for custodial rape it becomes even tougher and narrower. There exists a very low prosecution rate for public servants and then comes the factor of suppressing evidence and evidence tampering. Along with this political pressure is applied and covering of evidence occurs, with police officers in cases making it extremely difficult to even lodge complaints. Among all the obstacles a rape victim has to face, the added pressure of issues that come while prosecuting a public servant is just another added burden.
Law reforms and the need for reforms
Due to various women movements during the year, there existed a need for law reforms along with the failure of the prosecution.
All this resulted in the following reforms:
- Expansion of the term custody:
The term 'custody' was expanded in light of the movements and all that followed. Before which custodial rape as an act was considered to be the rape of a woman committed by a police officer, in the premises of a police station. With a change of law in the year 1983, the context of the term 'custody was expanded to provide it more significance and include all its types being:
- Rape by any public servant in his custody
- Rape by management or staff of the hospital on women in the hospital
- Rape by jail authorities in the police station, women's home, children's home
- Rape by police officers in the area of the police station
- Rape by a person of arm forces in the area of his deployment
Failure in assistance of victim:
This amendment came in the light of non-registration of FIR (First Information Report,) and negligence in assistance of victims. In the year 2013, an amendment was made which came to recognize that if a public servant fails to assist the rape victim, they can be subjected to punishment. This is a provision under Section 166A of the Indian Penal Code, with a punishment of six months, lasting up to two years. The police officials need to report and lodge the FIR prudently.Transfer in the burden of proof:
As for a general rule the accused in any court proceeding is looked at as 'innocent until proven guilty.' In the case of custodial rape, this works differently, due to the advent of Section 144A of the Indian Evidence Act. This change was brought about due to the immoral ways of evidence tampering and other obstacles which occur while prosecution of the public officers.
In this scenario, if the prosecution is the one able to prove that there has been an occurrence of sexual intercourse, and the woman states it to be without consent; the consequence to that is to be looked at as absence of consent. And thus, the burden is upon the accused to prove that it was otherwise.
Change in punishment- In the year 1983, in furtherance to law amendments, the punishment for custodial rape under section 376(2) was increased as different to 'rape' section 376(1.) The prescribed punishment for the given crime is ten years of rigorous imprisonment, up to life imprisonment with a fine.
Even after all these reforms there still exists a need for further reforms. As per the law, failure in the performance of the obligation is punishable, but there is not enough progress. Apart from the context, the public officials are still not liable and there exists a pertaining failure in helping the victim. The public servants are not as accountable as they should be and the need for change is immediate. The minimum punishment for custodial rape needs to be increased and the pathway for reporting and prosecution by the victims needs to be made easier.
Conclusion
'Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there.'[8]-Kurt Cobain
To conclude the given scenario, we can know that we have come a long way since when custodial rape was recognized as different from rape and since the term custody was expanded in the year 1983. We still have a very long way to go to reach an ideal and safe environment for the women in the country. Legal custody is somewhere an individual is supposed to feel safe, and not the feeling of fear or intimidation.
The sentence for the offence is supposed to be ten years of rigorous imprisonment, up to life imprisonment with a fine. Although it is observed that in most cases the convicts are let go after a three-to-four-year period, with minimal fine. The need for accountability and action which is in the form of punishment is more pressing than we can realize. In such trials, a rapist is let go after a minimal punishment for a crime so grave, whose trail also in an ironical way is more harassing for the victim; instead of the culprit. This just sets a negative example for the society at large.
We need to break the cycle of rape culture and the mindset behind it. This mindset passed down through years and generations, needs a shift of dynamics, such that the grave nature of the crime has a place and realization in the minds of the future generations. There is an immediate need for accountability by the public officials and the setting of light for the hope of a future, where women need not fear the ones who have the job to protect them. Here the aggressors already have an undue advantage over the victims, and thus necessary amendments and awareness is the need of the hour.
References:
1 Rakshhit Kapoor, Custodial Rapes, Legal Service India, https://www.legalserviceindia.com/legal/article-6337-custodial-rapes.html [i]
2 S.K. Mishra, J., Arati Majhi v State Of Odisha on April 24, 2014, Indian Kanoon, April 24, 2014, https://indiankanoon.org/doc/198418295/ [ii]
3 Ayush Verma, Gang rape and Custodial rape, iPleaders, July 5, 2020, https://blog.ipleaders.in/unseen-scars-story-custodial-rape/ [iii]
4 S.K. Mishra, J., Sheela Devi v State of Haryana and Anr on January 06, 2016, Indian Kanoon, January 06, 2016, https://indiankanoon.org/doc/77267876/[iv]
5 Sreyashi Bhattacharya, Custodial Rape in India, Lawcian, August 17, 2020, https://www.lawcian.com/post/custodial-rape-in-india[v]
6 Ayush Verma, Gang rape and Custodial rape, iPleaders, July 5, 2020, https://blog.ipleaders.in/unseen-scars-story-custodial-rape/[vi]
7 Sahar Bhog, What is Custodial rape and Why we need to be discussing it, iPleaders, April 16, 2019, https://feminisminindia.com/2019/04/16/custodial-rape-india/
End-Notes:
- Jessica Valenti, goodreads, https://www.goodreads.com/quotes/tag/rape
- Sreyashi Bhattacharya, Custodial Rape in India, Lawcian, August 17, 2020, https://www.lawcian.com/post/custodial-rape-in-india
- S.K. Mishra, J., Arati Majhi v State Of Odisha on April 24, 2014, Indian Kanoon, April 24, 2014, https://indiankanoon.org/doc/198418295/
- S.K. Mishra, J., Sheela Devi v State of Haryana and Anr on January 06, 2016, Indian Kanoon, January 06, 2016, https://indiankanoon.org/doc/77267876/
- Laurie Halse Anderson, goodreads, https://www.goodreads.com/quotes/t ag/rape
- Dean G Kilpatrick, The Mental Health Impact of Rape, National Violence Against Women Prevention Research Center, https://mainweb-v.musc.edu/vawprevention/research/mentalimpact.shtml
- Ayush Verma, Gang rape and Custodial rape, iPleaders, July 5, 2020, https://blog.ipleaders.in/unseen-scars-story-custodial-rape/
- Kurt Cobain, goodreads, https://www.goodreads.com/quotes/tag/rape
- Rakshhit Kapoor, Custodial Rapes, Legal Service India https://www.legalserviceindia.com/legal/article-6337-custodial-rapes.html
- S.K. Mishra, J., Arati Majhi v State Of Odisha on April 24, 2014, Indian Kanoon, April 24, 2014, https://indiankanoon.org/doc/198418295/
- Ayush Verma, Gang rape and Custodial rape, iPleaders, July 5, 2020, https://blog.ipleaders.in/unseen-scars-story-custodial-rape/
- S.K. Mishra, J., Sheela Devi v State of Haryana and Anr on January 06, 2016, Indian Kanoon, January 06, 2016, https://indiankanoon.org/doc/77267876/
- Sreyashi Bhattacharya, Custodial Rape in India, Lawcian, August 17, 2020, https://www.lawcian.com/post/custodial-rape-in-india
- Ayush Verma, Gang rape and Custodial rape, iPleaders, July 5, 2020, https://blog.ipleaders.in/unseen-scars-story-custodial-rape/
Also Read:
- Custodial Rapes
- Custodial Violence in India
- Custodial Torture - can you trust the police?
- Custodial Violence: The Harsh Truth and Unrighteous Act
- A Legal Analysis Of Rights Of Female Prisoners Under Constitution Of India
- Custodial Torture And Its Remedies
-
Justice And Morality: Custodial Deaths And CrPc
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