Custodial rape
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This article is written by Arunima Sinha, from Kamla Nehru College, Delhi University and Prerna Mayea, from Institute of Law, Nirma University, Ahmedabad. This article attempts to explore the history of custodial rape, its psychological impact on victims, and the legal structure that exists to bring justice to these victims.

Introduction 

Our society exists within a sphere of duality with regards to its perception of women. On one hand, we portray women as mighty goddesses who are worshipped for their strength and valour and on the other hand, we subjugate them and push them to the margins of society. Where her existence is subjected to the receiving end of a system that tells her there is an in-built hierarchy in which her life will always be worth less than a man.

We live in a society where a girl child is not allowed to live her life, just because she is a girl. A society where the government had to ban sex determination services in 1983 to ensure that people don’t penalize a girl child for her existence. This systematic oppression of women is so deep-rooted in the system that it starts playing out before she is even born, and ensures that even if she does get to live, it won’t be one without institutional prejudices and biases. This is evident from the fact that India has one of the leading rates for crimes against women. Whether it be sexual assault, rape, or female infanticide, all of it can be traced back to the marginalization of women. 

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To analyze this issue further and get a perspective on how deep-rooted the issue society’s treatment of women is, this article will study the position of women who are taken into police custody. Principally, it is a position where she is under the care of authority and is supposed to be kept safe. Though due to the power dynamic established, where the custodian is completely in control of every aspect of that individual’s existence, the space becomes very exploitative for the individual taken into custody. It goes from being a space that ensures their safety to being the reason they feel unsafe. Cases of this power being abused as crimes against women usually come out in the form of custodial rape. This leaves the person with deep-rooted emotional and psychological scars. This article shall be tracing the history of custodial rape, its psychological impact on victims, and the legal structure that exists to bring justice to these victims.

Tracing the history of custodial rape

In the late 1970s and 1980s, incidents of police torture in the form of custodial rape of women came to light. Rape has been used as an instrument of opression for centuries. Such incidents of rape in police custody also highlighted the persecution of women at the hands of uniformed officials. They would exercise their State powers and authority in a gruesome and inhumane manner. After the declaration of the National Emergency in 1975-77, the State would arbitrarily exercise their powers by doing away with public accountability for its actions and clamping down on the liberties of citizens. This period exemplified how the State power could be used to violate personal liberty and it awakened the conscience of society and the judiciary. In this environment of National Emergency, several cases of custodial rape emerged: 

  1. Mathura Case (1972): Mathura (aged 14-16), an Adivasi girl, was called to the police station in Maharashtra for general investigation and asked to stay back while her family members left. She was then raped by two policemen.
  2. Rameeza Bee Case (1978): Rameeza Bee (aged 26) along with her husband was arrested by police in Andhra Pradesh. She was raped by 3 police officers and her husband who tried to protest was mercilessly beaten up and murdered by the policemen.  
  3. Maya Tyagi Case (1980): Maya, a six-month pregnant lady was beaten up, stripped naked by the policemen in Baghpat, and gang-raped in police custody. 

These incidents fueled the women’s movement. Anti-rape campaigns were launched by women associations. Law reforms around the issue of custodial rape were challenged and they demanded recognition of custodial rape as a separate offence and other changes in law that would serve justice to these affected women. These reformative movements had the prime focus of creating women-friendly institutions, dedicated courts, and safer spaces. 

Understanding the mindset

As shameful as it is, rape culture is woven into the very fabric of society. This fact makes it extremely difficult for any legal reforms or measures to be implemented to its fullest potential because the real problem here is the mindset people that pass on from generation to generation. Let’s understand how this narrative is formed and how it further pans out.

Gender Roles

To efficiently understand this narrative, we have to trace the origins back to the difference in how a girl child is raised as compared to a boy child. From a very young age, women are handed kitchen sets and barbies to play with. This seemingly harmless act can establish gender roles in the mind of a child who isn’t even consciously aware of the concept yet. The way this pans out in a child’s mind is that they start identifying certain characteristics to a gender. So when girls are handed barbies to take care of and nurture, it reinforces their role as a caregiver and as someone who cooks, looks after and cleans up after people.

It starts pushing them into societally established boxes of behavior. This ends up forming a narrative of females in the minds of young boys and becomes an established gender role for both genders. When you combine this with how society views men as the one who puts bread on the table and the habit of society to constantly put men on a pedestal in every sphere, it leads to women being viewed as the inferior gender as they aren’t carrying out the same duties as a man. This sense of superiority that makes men think they are above women also leads to them not valuing a woman’s agency.

Affect of Bollywood

When one is living in a society where the only recognized and accepted non-romantic relationship between a woman and man is marriage, one learns how to navigate every other relationship from either their environment or external sources of information. One such prominent source is Bollywood due to how easily accessible it is in terms of mass reach and the quantity of content produced. If one reviews 70s-90s or even early 2000s Bollywood, they will see how the representation of sex in those movies are far from accurate or realistic. They pass off a lot of sexual misconduct as romantic such as eve-teasing and catcalling or even a man forcing himself on a woman. In all Bollywood movies back then or now, there are three very easily identifiable niche elements; the bad guy, the hero, and the damsel in distress. The way this story plays out every time is that the bad guy finds the damsel alone and demands her “izzat” as if it’s a tangible thing she can hand over. Just when the bad guy is about to dominate her, in comes the hero with a massive savior complex.

After the hero saves the damsel, she is so eternally grateful to him that she can’t think of any other way to repay him but to pledge her undying love and loyalty to him. If we break this one scene down, it has more layers of objectionable content than an onion. But the main fact is Bollywood puts two narratives in women’s heads. One, you absolutely can’t fend for yourself unless a man decides to protect you and two, if a man does save you out of the goodness of his heart then you owe him something in return for a very basic act of kindness. This narrative is still very prevalent in movies like Housefull 4 where the leads save the girl from bad guys and the lyrics for the song right after goes something like “I have saved you from the goons, I think I deserve a kiss now” along with them persistently approaching the women.    

These actions may seem small but they end up defining how we view things like sex, consent and a woman’s agency to say no. If a hero is pursuing the lead even after she expresses her disinterest or in clear words shuts down his advances, what does it teach the young boys and girls watching these films about consent and how valued their no is? Especially when in the end, the script always takes a turn to the man’s benefit and the woman finally says yes. It sets a precedent that it does not matter if your advances are rejected, as long as you persistently keep on with them, the woman will finally give in. 

When we take all these factors and see how they practically pan out, it results in a woman not holding any agency when it comes to how society views her. A man thinks he can have whatever he wants as a result of society’s constant pedestalization of men and the narrative created by elements like Bollywood where the man gets what he wants. When these ideas are supplemented with people saying things like “men will be men”, it creates an environment where men are never held accountable for their actions. If anyone does what is portrayed in bollywood in reality, their actions are passed as “small mistakes” and people say things should not be blown out of proportion as it will ruin his life. 

Inside the mind of a victim 

The perception of how rape is viewed has evolved over the years. It has gone from viewing it as unwanted sex to an extremely traumatic event that alters the life of the survivor. And this perception has also defined how much research has gone into understanding what goes on within the mind of a rape victim and how the psychological scars deeply embed themselves to cause many more problems years after the sickening deed has taken place.

The most commonly experienced feelings are those of guilt, shame, and disgust. All these can be traced back to how a victim is made to feel like it is their fault. People point fingers saying it is something they did, something they wore, etc. and how they are viewed as impure. Societal perceptions play a very big role in how the victim processes the situation. So, when we are living in a society where the first reaction of people is to point fingers at the victim, then it doesn’t help the victim much in trying to deal with the situation. People like to believe that good things happen to good people and bad things happen to bad people. So when one hears of a bad thing that happened, their first response is to list out a bunch of societally deemed “bad” behaviors to reinforce this idea and subconsciously reassure themselves that it would never happen to them.

PTSD in Rape Victims  

Another extremely common phenomenon people go through after this is Post-Traumatic Stress Disorder (PTSD). It is a psychiatric disorder that can occur in people who have experienced or witnessed a traumatic event such as a natural disaster, a serious accident, a terrorist act, war/combat, rape, or other violent personal assault. People with PTSD have intense, disturbing thoughts and feelings related to their experiences that last long after the traumatic event has ended. They may relive the event through flashbacks or nightmares. They may feel sadness, fear, or anger and they may feel detached or estranged from other people. People with PTSD may avoid situations or people that remind them of the traumatic event, and they may have strong negative reactions to something as ordinary as a loud noise or an accidental touch. A study conducted on the psychological impacts of rape on victims by conducting a wekly check found out that after 1 week of the crime being committed, 94% of the victims showed signs of clinically diagnosed PTSD and Depression. Even after 3 months of the crime, 47% still met with the criteria for having PTSD. 

Along with these, women also develop severe anxiety, obsessive thoughts, anger and in some extreme cases, it can lead to dissociation where the victim cannot accept or believe that something that traumatic has happened to them.   

Effect of Custodial Rape

Now, to funnel down the research to the psychological impacts of custodial rape, one needs to understand that women are extremely vulnerable to possible sexual assault or sexual misconduct. As mentioned earlier, it’s a space where a hierarchy is created in terms of the police personnel holding all the power and the individual being held in custody being completely at their mercy.

Many NGOs over the years have been advocating for awareness about sexual assault in custody, the situation lies more in a gray area where it’s tricky to get accurate numbers of how many rapes happen within custody. Since the perpetrator is a state official, there is a lot of cover-ups that take place to ensure this data isn’t released; moreover, in numerous cases, police officers have responded with the request to conduct a “virginity test” on the victim to prove that rape happened in custody which is medically a flawed argument to present as gynecologists have stated that virginity is not a medically verifiable construct.  

All these factors make rapes that happen in custody an overall much more harrowing experience as it happens within a space that is legally created to keep the individual safe. It leads to immense feelings of feeling unsafe even when they are let back into society and makes the individual feel like they are not in control of what happens to their body. They feel that their body isn’t sacred to them anymore since someone else overpowered it and took advantage in an allotted safe space. The PTSD is severe to a point where they might always be afraid of approaching police officers or authority figures in their life since the exploitation happened due to the authority having power over them. This situation can be aggravated by fear and intimidation from the side of the authorities which can worsen the psychological state of the individual and cause anxiety. If even after all the harassment, the victim decides to report the crime, they are met with extremely antagonizing questioning which can further the already existing feelings of shame and embarrassment.  

Burden of Proof

Since the burden to prove that the rape took place lies on the victim, they are expected to recall details of it to prove its legitimacy. Questions like what time it was, what clothes were they wearing and if they recall any other details become extremely crucial to prove that the event took place. But what authorities fail to take into account is how trauma can quite literally change the way your brain processes information. When your brain identifies that you are in a stressful situation, it kicks in the stress response. We use our prefrontal cortex to register and understand things. When a stressful situation beyond the brain’s grasp is created and the stress response kicks in, our prefrontal cortex is impaired due to a sudden surge of chemicals being released as an attempt to cope with the situation. With regards to sexual assault, the brain’s response is to shift your attention from seemingly relevant details to irrelevant ones that don’t have negative emotions associated to them.

This is a self-preserving measure that is triggered by the stress and fear hormone being released and helps the individual cope with the situation marginally better as their brain has blocked out the direct negative stimuli and given them something to fixate their attention on. So, for example, if one got raped, their attention is more likely to be on a light bulb that they can see flickering down the hall instead of the actual act. Due to this, the victims are sometimes unable to recall the details of the assault and are deemed as liars who are fabricating the stories.  

To go through an event like sexual assault is traumatic and life-altering enough in itself and the situation worsens the moment you add state authorities or officials to it. Holding them accountable is much harder than holding a common man accountable due to the number of resources they have. In the end, the psychological impacts of the same are much worse since it’s the very people who are supposed to keep you safe whom you now need protection from. 

Hurdles in prosecution and need for reforms

The National Crime Records Bureau report mentions that only 29% of rape crimes are reported in India and the conviction rate is 32.2% at the national level, much lower than throughout the world. While the statistics show that it is difficult to prosecute a perpetrator, the challenge becomes even greater in cases of rape in police custody by officers. The rape is committed in the premises of police station, jails, and institutions under the control of the government, the evidence remains within the reach of public servants. Such evidence can be easily destroyed or tampered. However, the women or their family members continued to face problems in registering the FIR and reporting the crime. The police and other officers would refuse to report the incident and register a complaint. There also apply political pressure to suppress crime statistics, including statics about custodial rape. 

Before 2013, Section 197 of the Criminal procedure Code required the sanction of the central or state government before the initiation of proceedings against a public servant for any act done by them while discharging their official duty. However, the Criminal Law (Amendment) Act, 2013 provided that in cases where the public servant is alleged to have committed rape under Section 375 CrPC, no sanction is required. 

Legal reforms introduced

Due to the abovementioned obstacles in the prosecution of public servants and holding them accountable, there was an urgent need to address the issue of custodial rape crimes and bring about a paradigm shift in criminal law to provide justice to women who are sexually assaulted in the custody of the police. This led to a series of reforms:

  1. Custodial rape primarily meant the rape of women committed by a police officer in the premises of the police station. However, in 1983 the concept of custodial rape was given importance and the meaning of the term ‘custody’ was widened. Today, it includes rape committed by a police officer within the limits of the police station in which he is appointed, in the premises of a station house, or when he commits a crime against a woman who is in either in his custody or under the custody of his subordinate. It also includes rape committed by any member of management/staff of any other place including jail or remade homes, at any of these places, which has been established under law.
  2. Criminal law ordinarily puts the burden of proof on the prosecution to prove the committal of crime by the accused. The accused is presumed innocent until proven guilty. However, this posed a bigger problem in cases of custodial rape due to reasons mentioned above like tampering and destruction of evidence. Therefore, an exception to the rule of presumption was provided in the provision of Evidence Act. The Criminal Law (Amendment) Act, 1983 introduced Section 114A in the Evidence Act, 1872 which states that if the sexual intercourse is proved and the victim states that it has happened without her consent, then the Court shall presume the absence of such consent. The onus then lies upon the perpetrator to prove that the sexual intercourse happened with the consent of the woman.
  3. To counter the problem of non-registration of FIR at the discretion of police officers and the failure to assist a rape victim, the Criminal Law Amendment Act, 2013 recognized this as an offence under the Indian Penal Code, 1860. Section 166-A was inserted in IPC which punished the public servant with rigorous imprisonment of minimum 6 months which may extend up to 2 years and shall also be liable for fine in case they disobeyed the direction of law regulating conducting of investigation or if they fail to register an FIR concerning a rape crime.

Conclusion

The relationship between the perpetrator and victim in cases of custodial rape is the one where the perpetrator already casts an undue influence over the victim. Therefore, rape under such circumstances poses an even greater threat to the victim and leaves her under immense trauma since the police officer not only violates her bodily integrity but also his duty to care and protect her. The seriousness of the custodial rape had already been recognized by legislators since the minimum punishment for rape in police custody was more than other cases of rape. A minimum of 10 years of rigorous imprisonment existed in cases of custodial rape in comparison to the 7 years of minimum imprisonment in cases of rape by ordinary man.

However, after the Criminal Law (Amendment) Act, 2013, the minimum punishment for rape in other cases was also brought at par with the offence of custodial rape. Therefore, in the light of recent events of increasing crimes in police custody, there arises an urgent need to enhance the minimum imprisonment limit in these special cases as in criminal jurisprudence it is understood that the sentence prescribed for an offence often indicates the seriousness with which law treats the offence. Furthermore, easy channels to report such crime and lodge complaints must be introduced to ensure those police officials are prosecuted for the same. Not only must the amendments be launched but it must also be ensured that they are being implemented at the ground level.  

References

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