This article has been written by Mohd_Umar, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

Explanation 2 appended to  Section 375 of the Indian Penal Code defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”. Thus, every act done against one’s will, is done without the consent of that person and any such act done without the consent of that person which thereby harms him, is considered as wrong in eyes of law. Rape is one such menace in the society, which is considered to be one of the most heinous acts that a man could do.

The major purposes of prisons are retribution, incapacitation, deterrence and rehabilitation of the imprisoned. Rehabilitation refers to activities designed to change criminals into law abiding citizens, and may include providing educational courses in prison, teaching job skills and offering counselling with a psychologist or social worker. However, a major setback in this process of rehabilitation is the crimes that occur in prison. 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 tough in prison as it is hoped that prisons would provide warnings to people about committing crimes, and that the possibility of going to prison will discourage people from breaking the law. The heinous acts done to the prisoners adds more to their sufferings and renders themselves to such a situation where they find themselves desperate and exploited. 

Custodial rape and sexual violence in prison is one of the most ignored topics that is rarely been discussed. Though our society is very sensitive about rape and other sexual assaults committed against women and rightly so as they have caused terror in the society; yet we fail to recognize the same against men. It is even more ignored when such cases are reported by the prisoners. People are less 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 retributive in order to assure and satisfy the society and the victim that the criminal has been punished accordingly.

Prisoners are often subject 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. But the Fundamental Rights are 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 states in the prison. It’s not merely the fulfillment of lust or for sexual gratification, rather it’s 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.

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 states 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 as 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 a more threatening  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.

Laws relating to custodial rape in India

Indian Penal Code defines Rape in Section 375 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 IPC penalizes 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.

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.

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.

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 separate prisons should be designed for them or they should be kept in the female prisons.

Some people are under trial 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 if 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.

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