SocietyLaw & Policy What Is Custodial Rape And Why We Need To Be Discussing It

What Is Custodial Rape And Why We Need To Be Discussing It

While it is already difficult to prosecute and punish a rape accused, the challenge is even greater when it comes to custodial rape

A person is in ‘custody’ when he/she is under the care, supervision and control of another person or institution, called custodian. Normally, the custodian has an absolute or a high degree of control over the individual, including his/her mobility, liberty, food and water, contact with the outside world, and such. This relationship of control and dependence casts a strong duty of care and protection on the custodian. Rape, under such circumstances, is a far more serious violation, since the aggressor takes advantage of his position of control over the woman, violating not only her bodily integrity but also the duty to care and protect.

The most common example of custody is detention by the State, through the police, army and other security forces, which may be at police stations, lockups, prisons and interrogation centres. However, the concept of ‘custody’ also applies to hospitals (government and private), mental health care institutions, shelter homes and juvenile homes.

The women’s movement mobilised around the issue of custodial rape in the late 1970s and 1980s, after a series of incidents concerning the rape of women in police custody came to light

The women’s movement mobilised around the issue of custodial rape in the late 1970s and 1980s, after a series of incidents concerning the rape of women in police custody came to light. These highlighted not only the power that men have over women, but also that which uniformed officials, wielding State power and authority, have over ordinary citizens, particularly women. The initial campaigns for law reform rallied around these key incidents of custodial rape, demanding changes in law that would bring justice to the affected women.

Custodial Rape and the Origins of the Anti-Rape Campaign in India

During the national emergency in 1975-77, the state assumed arbitrary and unfettered powers, dispensed with public accountability for its actions, and clamped down heavily on the civil liberties of citizens. This experience awakened an acute consciousness in the civil society and the judiciary, of the dangers of state power and how it could be used to violate and trample personal liberties. It was in this climate that three cases of custodial rape occurred in quick succession: of Mathura in Maharashtra (1974), Rameeza Bee in Andhra Pradesh (1978) and Maya Tyagi in Uttar Pradesh (1980).

The three incidents were targeted forms of violence against women, which also involved an abuse of power by public servants who are duty-bound to protect the people of India. However, in all these three incidents, the police acted with extreme brutality and without any fear of the law. These cases became symbols of blatant impunity, institutional bias and apathy by police forces. The nationwide anti-rape campaign gained momentum from public outrage against such cases, demanding recognition of custodial rape as a distinct offence in law, which was more serious than rape.

Also read: The Historical Journey Of Rape Laws In India

The movements for law reform focussed for the most part on criminal law remedies, dedicated courts and special mechanisms in an effort to create women-friendly institutional spaces, with better potential for justice to women. The nation-wide campaign against rape, led to many changes in the law and its enforcement in 1983 and thereafter.

Rameeza Bee’s Case

While returning home after watching a late night movie show in Hyderabad, Rameeza Bee, a 26 year old working class woman, and her husband, Ahmed Husain, a rickshaw puller, were arrested by the police for loitering. When her husband returned home to bring money to pay their fine, Rameeza Bee was raped by three policemen. On his return, he protested the assault upon his wife, but was mercilessly beaten to death by the policemen.

Rameeza Bee complained about the incident – sparking violent protests and riots in the cities of Hyderabad and Secunderabad, and other parts of the state of Andhra Pradesh. The police image had been badly tarnished by the incident of custodial rape. Four police officials were suspended.

The then Chief Minister of Andhra Pradesh was forced to institute a Commission of Inquiry – Justice Mukhtadar Commission – to inquire into the rape of Rameeza Bee and the death of Ahmed Hussain. During the Commission’s proceedings, the police defended the rape and murder, by questioning Rameeza Bee’s character. They led evidence to prove that Rameeza Bee had been married several times, that her marriage to Ahmed Hussain was not valid and she was immorally cohabiting with him, and that, she was a sex worker who was apprehended for soliciting.

The Commission found the policemen guilty of rape and murder, and recommended that they be prosecuted. The trial of the policemen began in the neighbouring state of Karnataka, to which it was transferred. Subsequently, however, the police were acquitted by the session’s court on the ground that evidence recorded before a Commission of Inquiry was inadmissible.

Challenges In Making The Public Servant Accountable

While it is difficult to prosecute and punish a rape accused, the challenge is even greater when it comes to custodial rape. In criminal law, the state is considered to be the protector of the people, which is why it is the state that prosecutes rape cases, and not the victim. However, this logic does not hold true in cases of custodial rape.

While it is difficult to prosecute and punish a rape accused, the challenge is even greater when it comes to custodial rape.

Since incidents of custodial rape typically take place in police stations, jails and other places run by / under the control of the government, the evidence is within the control of the public servants. It is possible for them to destroy the evidence from the place of crime. To counter this, the women’s movement asked for a shift in onus of proof from prosecution to accused in custodial rape cases.

However, it is difficult to even register an FIR against the police. Problems encountered by women with registering FIRs are:

  1. Police or other forces refusing to accept the complaint of the victim. This may be under the authority of either Police Standing Orders, or the impunity for offences granted under unjust laws such as the Armed Forces Special Powers for the Police, Central (Armed) Reserve Police Forces or the Army;
  2. Police practice of recording informal complaints in the form of Community Social Register (CSR) rather than FIR – this has the effect of removing the recording of the offence outside the purview of CrPC and the safeguards it provides victims;
  3. The political compulsion to suppress crime statistics, including statistics about custodial rape.

Even if FIR is registered, S. 197 CrPC prescribes that a public servant cannot be prosecuted for any offence for any act done while discharging the official duty, without the prior sanction of the state or central government – whichever was the authority that appointed the public servant.

Law Reform

Due to the above challenges in prosecuting cases of custodial rape, the women’s movement demanded a paradigm shift in criminal law related to rape and other forms of sexual violence committed in custody. The demands were:

1. Expansion of the Term ‘Custody’

Although the concept of ‘rape in custody’ arose in the context of rape of women by police officials within the premises of the police station, the law has given a broader meaning to the term ‘custody’. The law changed in 1983 to introduce the concept of custodial rape, and expand the understanding of custody to include:

  • Rape by a police officer within the limits of the police station to which he is appointed, in the premise of a station house or on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer;
  • Rape by a public servant on a woman in the public servant’s custody or in the custody of a public servant subordinate to him;
  • Rape by a member of the armed forces in an area where the forces have been deployed;
  • Rape by a member of the management / staff on an inmate in a jail, remand home, women’s home, children’s home or other place of custody; and
  • Rape by a member of the management / staff of a hospital, on a woman in the hospital.

2. Shift in Onus of Proof

Ordinarily, in criminal law, the responsibility is on the prosecution (representing the State) to prove that an accused committed an offence, as the state has superior powers and machinery at its disposal to prove the guilt of the accused. The accused is presumed innocent until proven guilty, as a fundamental principle of human rights and criminal law.

In cases of custodial rape, an exception to the rule of presumption of innocence was carved out in 1983 in cases of custodial rape through S.114A of the Indian Evidence Act. As per this provision, if the prosecution manages to prove the act of sexual intercourse, and the woman states that it was without consent, then the court will presume an absence of consent. The onus is then upon the accused to prove that the woman consented to sex.

3. Enhanced Punishment

The sentence prescribed for a crime is often an indicator of the seriousness with which law treats the crime. Through amendments to the law in 1983 and later, the punishment prescribed for custodial rape increased as compared with rape by an ordinary person. A minimum of 10 years rigorous imprisonment, up to life imprisonment (that is, imprisonment for the remainder of that person’s natural life) with fine has been prescribed in law.

4. Failure To Perform Duty As A Punishable Offence

For the first time, through an amendment in law in 2013, the failure of government officials to assist a victim of rape came to be recognized as a punishable offence. The police have a duty to register the FIR and to do so promptly. A punishment of 6 months – 2 years imprisonment is prescribed for a public servant disobeying the law, under S. 166A IPC.

Persisting Challenges

Even though failure to perform the duty has been made a punishable offence, there is no social audit of how many police officials have been prosecuted for the same, if at all. An issue to examine would be – there might be positive amendments to existing law, but to what extent are they being implemented or allowed to be implemented at the ground level?

Also see: 25 Years On, The State Is Still In Denial Of Kunan Poshpora

Feature Image source: Photo by Keystone via Getty Images

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