Every so often, the front pages of all the newspapers in India are filled with a case of rape that is so gruesome that it outrages the collective conscience of our entire nation. These cases hold a mirror up to the devastating reality of our country – that it still is plagued by deep-rooted sexist and misogynistic beliefs that perpetuate this vicious rape culture. One such case that shocked the entire nation was that of Mathura's. Up until this point, there was little to no coverage about custodial rapes in India. However, this case laid the foundation of some of the most important changes in the rape laws of our nation and started a conversation around custodial crimes. Custodial rape can be defined as, "rape perpetrated in any state-owned institution by a state agent." 1Levi, Thomas, D. Q., & Robin, S. (1999). Common Abuses Against Women. In K. D. Koenig, Women and International Human Rights Law Vol. 1 eds. (p. 139). Transitional Publishers. State-owned facilities usually include prisons and other detention centres, but they can also include hospitals and institutions for the mentally ill.
Custodial rape is a type of rape that occurs when the victim is “in custody” and therefore, is unable to leave, and a perpetrator is a person who holds a position of power that inhibits the victim from leaving their custody. If such a type of rape occurs in a prison, it’s called prison rape. Although some definitions of custodial rape describe it as occurring in a state-owned institution and carried out by a state officer, the term more broadly applies to any circumstance where the authority of a state agent is used to facilitate rape; thus, when prisoner-on-prisoner rape occurs as a result of incompetence on the part of the prison officials, it may be called custodial rape.
The issue of custodial rapes is particularly disturbing as the perpetrator, in this case, is someone you reach out to in the hopes of protecting yourself. When people in positions of power, especially those who are actively involved in police-work or medical-work exploit their position and harm people who are helpless before them, a very dangerous precedent is instituted.
For instance, in the case of custodial rapes by police officials, the victims are left helpless – the State mechanism which exists to safeguard their rights is the one inflicting harm upon them. It becomes incredibly difficult to seek justice in such cases as it’s the officers themselves who are violating the victim’s rights. Thus, many times, such cases are not reported because the officers either refuse to launch a complaint or instil a sense of fear in the minds of the victim and their family members that deter them from launching a complaint.
Custodial rape is a pervasive issue in a lot of countries; some state agents that have been charged with multiple cases of custodial rape have responded by conducting compulsory tests of virginity on all-female inmates to show that sexual abuse has not occurred during detention, despite the gynaecologists’ opposition that virginity is not scientifically verifiable, and protests from various human rights groups that deem such tests invasive and a form of sexual abuse in themselves. 2Ibid
Custodial Rapes in Nigeria
The issue of sexual violence has plagued Nigeria for decades. One such case was that of two teenage girls in Eunugu, who were raped by three policemen, which included a deputy superintendent as well. This case received significant attention in Nigeria, as many human rights groups came forward to ensure that these perpetrators are not let off the hook easily. Although this case almost 16 years old, things don’t seem to have changed in Nigeria.
Even today, multiple women have alleged being raped by police officers with little to no convictions by the State authorities. The Women At Risk International Foundation estimates that more than 10,000 girls are raped or sexually abused every day in Nigeria, and as of 2016, there were only 18 rape convictions. And among the plethora of perpetrators are the Nigerian Police officers, who use their power and influence for extortion — taking money or sexual bribery from women, particularly those who are marginalized.
Amnesty International has reported that Nigeria’s security forces have committed rape in several different situations, both on and off duty. Rape is used strategically at times to intimidate and harass whole populations. The government’s response has been and continues to be, sadly insufficient. Rape is a crime in Nigeria and is also an internationally recognised human rights violation.
However, the Government has failed both in its domestic and international responsibilities to deter, arrest and prosecute abusers, whether committed by state or non-state agents and to make any compensation to the victims and has failed to reform oppressive laws that provide immunity against allegations of rape.
Many non – profit organizations, such as those which are focused directly on criminal justice reforms, have confirmed that women and girls are often abused while still in custody or while visiting an incarcerated family member. Uju Agomoh, executive director of Prisoners’ Rehabilitation and Welfare Action (PRAWA), a leading non-governmental group focused on rehabilitation and prison reform, clarified that often female visitors experience severe implications as a consequence of police misconduct.
They claim that by being compelled to have sex with a police officer, the inmate that they are meeting will be released more easily. This kind of misconduct within the police department leads to the state committing and perpetrating abuse because, regardless of consent, neither prisoners nor visiting women can have a genuinely consensual relationship because of the power dynamics involved.
Custodial Rapes in Sri Lanka
Custodial rapes in Sri Lanka are pretty prevalent. The group most vulnerable in this regard are Tamils. A case that took the whole nation by storm was that two Tamil women named Sinnathamby Sivamany and Ehamparam Wijikala who were displaced during the armed conflict in the north and east of Sri Lanka in 2001. They were arrested by officers of the Navy in the in Mannar and eventually raped by navy personnel and police officers. The case had numerous issues, which included possible cover-ups by the higher-ups. This led to the deficiencies in evidence and eventually no conviction was made.
Sri Lanka’s rape laws have been reformed by the government to properly handle the rape of inmates. Starting in 1995, the state placed in place a legal structure that could, in theory, have provided for the more successful prosecution of accused rapists. Among the amendments to the Criminal Code was the inclusion of a new provision Section 364(2) which acknowledges the phenomenon of rape in custody and gang rape as serious crimes. The minimum and maximum sentence for rape in detention as a form of aggravated rape is 10 years of imprisonment and 20 years of imprisonment, respectively. However, still persists, with little no convictions.
Custodial Rapes in India
The Emergency of 1975-77 is a black spot on the history of the Indian democracy. During this time, the State assumed absolute and unrestricted authority, discarded public responsibility for its acts, and stifled the civil rights of its people. There was a rampant increase in cases of custodial violence during this period. However, the cases of Rameeza Bee and Mathura truly shook the entire nation and led the foundation of many future legal reforms pertaining to rape in our country.
Rameeza Bee Case
In 1978, Rameeza Bee, a 26-year old woman, and her husband, Ahmed Husain, were detained by the police while coming home after watching a movie in Hyderabad. When her husband went home to bring money to pay their fine, Rameeza Bee was raped by three policemen. On his return, he resisted the attack on his wife, but the police beat him to death.
This incident caused violent riots and protests in Hyderabad and Secunderabad and other areas of Andhra Pradesh. The reputation of the police had been highly damaged by the incident of custodial rape. Eventually, four police officers were suspended. The then Chief Minister of Andhra Pradesh was pressured to set up the Muktadar Commission to investigate the case. During the Commission’s investigation, the police justified the rape and murder by pointing fingers towards the character of Rameeza Bee.
They alleged that Rameeza Bee was a woman of questionable character and her marriage to Ahmed was invalid. She was also accused of being a sex worker during the course of the investigation which made the case murkier. The Commission found the officers guilty of rape and murder and demanded that they be tried. The police trial started in the neighbouring state of Karnataka, where it was transferred. Later, however, the police were absolved by the Sessions court on the ground that the facts recorded before the Commission was invalid. 3Prasad, P. S. (1978, September 2). The Police and Rameeza Bee: Muktadar Commission’s Findings.
Mathura Rape Case [AIR 1979 SC 185]
Mathura was a 14-year old Adivasi girl who lived with her brothers in Maharashtra. She worked as a domestic help with a person called Nushi. She eventually met Nushi’s nephew, Ashok, who wished to wed her, but her brother did not approve of their marriage and he went to the nearby police station to file a report that Ashok and his family had abducted his sister who was a minor. Upon receiving the complaint, Ashok and his family were taken to the police station. After a round of questioning, Mathura, her brother, Ashok, and his family were released.
However, as they left, Mathura was told to stay back while the others waited outside. It was during this time that Mathura was raped by the police officers. Eventually, after Mathura’s family gathered some people and threatened to burn police chowki, the two accused policemen, Ganpat and Tukaram, unwillingly to filed a panchnama (recording of evidence).
The case was brought before the Sessions Court on 1 June 1974. The judgement held the police officers not guilty. It was suggested that, since Mathura was ‘habituated to sexual intercourse,’ she voluntarily consented to having sexual intercourse with the accused.
After the appeal, the High Court of Bombay reversed the judgement of the Sessions Court and convicted both the accused officials to one and five years in incarceration respectively. The Court held that “passive submission on the grounds of fear caused by serious threats could not be interpreted as consent or willing sexual intercourse.”
However, the Supreme Court reversed the High Court’s order and acquitted the accused. The Court held that Mathura had not triggered any alarm; and that there were no obvious signs of damage on her body, therefore implying no struggle and thus no rape.
The Mathura Rape Case laid the foundation of our modern-day rape laws. There were a series of amendments in criminal laws of India which helped incorporate after this case that changed the way custodial rape is perceived by the Judiciary.
The first reform was brought about in 1983 with the introduction of Section 376 (a) to (d) to the Indian Penal Code, 1860 that made custodial rape a punishable offence. It widened the meaning of “custody” and brought the action of rape by the following people within its ambit –
- Police officers who rape a woman in their custody
- Public servants who rape a woman in their custody
- Members of the armed forces who rape a woman in an area where they have been deployed
- Staff members of a jail or correctional facility on a woman in their custody
- Staff members of a hospital who rape a woman admitted in their care
The next change was brought with regards to a rebuttable presumption of law by the insertion of Section 114A to the Indian Evidence Act. Under this, once the occurrence of intercourse was confirmed and if the victim alleges that she did not consent to this sexual intercourse under the offences mentioned in Section 376 (a) to (d) of the Indian Penal Code, then the Court shall believe that the woman did not consent to such an act, ultimately shifting the burden of proof on the accused.
As a result of changes to the law in 1983 and later, the penalty prescribed for custodial rape increased compared to the rape by any other common citizen. A minimum of 10 years of strict imprisonment, up to life imprisonment (i.e. imprisonment for the rest of the person’s natural life) with a fine has been prescribed by statute)
Moreover, the 2013 Criminal Law Amendment Act acknowledged the failure of state authorities in helping a victim of rape as a punishable offence. The police are now obliged to report a case of rape. If they fail to do so, a sentence of 6 months to 2 years imprisonment is provided for a public servant who disobeys the law under Section 166A of the Indian Penal Code.
The issue of custodial violence has seen a surge around us globally. Be it the case of George Floyd in the United States or Jayaraj and Fenix in Tamil Nadu, people in positions of authority have exploited people weaker than them time and time again. In such a situation, women are even more vulnerable.
The issue with custodial rape is that it is a part of a system that is meant to protect and uphold the rights of the citizens. When such an institution infringes people’s rights and causes harm, it is very difficult to seek legal help or demand justice. In such cases, the evidence is often controlled by the perpetrators themselves, so it becomes very easy to discredit a victim’s testimony. As seen in the case of Mathura and Rameeza, the accused resorted to shaming the victim and using excuses such as “being habituated to sex” to absolve themselves of their crimes.
This is where the deep-rooted patriarchy and misogynistic nature of our legal system start to show face. There is also the element of fear and shame that needs to be evaluated, which can explain why only 45 cases of custodial rape were recorded between the years of 2002-2010.
The question that arises now is whether the amendments in Law are being enforced. Although there is no study that can give us clear numbers, the fact that only 45 cases of custodial rape were recorded in the past decade is telling, keeping in mind the vicious rape culture prevalent in India.
The crime of rape is already a huge blow on the body and psyche of a victim. In the cases of custodial rape, the victim could be driven to a state of deep despair and helplessness, given the power imbalance between them and their perpetrator. Therefore, we must start a dialogue against such crimes and demand accountability from the people in positions of authority to ensure that such crimes are eradicated from the grassroots level.