The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Custodial Rape-
The Police force in a state is tasked with the significant duty to enforce the law and maintain public order owing to which they are conferred with enormous powers
, including those that can deprive a citizen’s personal liberty. However, this does lead to the question of who will watch the watchmen for it is trite that power corrupts.
Custodial rape is a positively mild term for one of the grossest abuse of power on the vulnerable in detention. While police brutality is wildly accept as being an endemic, custodial rape often goes unrecognized as opposed to its other counterparts – custodial torture and murder. Most cases are unreport as the police investigation forms an integral part of criminal justice, and justice requires evidence, which often exists in the hands of the perpetrators. These cases are time after time swept under the rug until one or two cases spark a public outcry followed
by a half-hearted push for reform.
While a major portion of these cases goes unreported owing to the victim’s background- impoverished, minorities, people of color, or in a sense forsaken by the society, another traumatizing obstacle that a survivor faces as they push for justice is the defense of consent. International organizations have over time brought up conventions and treatises outlawing sexual violence. The concept of consent when dealing with rape has been expand by the ICTY Tribunal which modify the definition of rape from an ‘act of coercion or force, or threat of force, against the victim’ to a “non-consensual or non-voluntary” sexual act.[1] The tribunal emphasize consent and define it as that which is “given voluntarily
, as a result of the victim’s free will.”
Contents hide
1 The United States and the concept of consent
2 Indian Laws and Custodial Rape
2.1 , causing burns on their private parts
3.1 the needs of all individuals regardless of their gender.
In the United States, federally, consent is not recognize as a defense, and it is deem illegal for prison staff to engage in sexual relationships with inmates. Moreover, sexual contact between inmates and custodial staff is criminalize by U.S law. It states that due to the coercive nature of the relationship
, the prisoners cannot consent to a sexual relationship with the custodial staff
, thereby invalidating consent as a defense. Ironically, this bar that is applicable to the penal and correctional staff[2] fails to extend to the police officers and other officials who have the capacity to make arrests.
This allows the on-duty police officials to engage in sexual relationships with their detainees and to claim the defense of consent, thereby deranging any accusation of custodial rape. In a 2011 report by the International Associations of Chiefs of Police, it was suggested that the job itself creates opportunities for sexual misconduct by the officers owing to their power, independence, irregular hours, lack of credibility of the victims, and the underlying loyalty that impels officers to shield each other. Despite this
, there exists a general reluctance on the part of the judiciary to implicate the department for the ‘mistakes of one’
, and going so far as to only find for ‘indecent assault and battery.[3] In Anna Doe v. The City of New York[4]the police officers were awarded 5 years’ probation for allegedly raping a teenager they arrested by claiming consent.
In the Indian scenario, the successive matters of Mathura[5], Rameeza Bee[6], and Maya Tyagi[7] are prominent cases that brought police brutality, lack of apathy, blatant impunity, and institutional bias to the limelight. While the apex court of the country dismissed Mathura, a Dalit girl’s rape by policemen citing lack of locus standi and the existence of implied consent arising from lack of expressed non-consent, lack of bruise
, and habituation to sexual intercourse; in Rameeza Bee, despite finding the policemen guilty[8], they were acquitted by the session’s court on grounds of inadmissibility of the evidence so gathered while the defense resorted to character assassination. The Maya Tyagi judgment was, however, a landmark owing to the award of the death penalty for six policemen and
life imprisonment for the remaining four for custodial rape and murder.
The furor created by these cases led to the Criminal Law Amendment Act, 1983, that introduced custodial rape[9] as an aggravated offense, with a minimum penal term of 10 years, and empowered the court to presume lack of consent once the victim asserts the same.[10]
The reduction of the prescribed minimum punishment in the matter of custodial rape in a Supreme Court judgment by citing the victim’s conduct garnered much flak[11]. However, the same court later held that
‘when a person in uniform commits such a serious crime of rape, there is no room for sympathy or pity and the punishment must be exemplary.’[12]
Despite a series of cases becoming the focus of public outrage and consequently improving the laws, the cases did not recede. In fact, the situation has worsened wherein the custodial tortures now include inserting pepper, lathi, rod into the private parts of the female victims
, or male officers inserting their private parts into the mouth of the female suspects.[13]
Moreover, the Indian legal system is yet to recognize male rape cases let alone custodial rape of men. The insensitivity to male rape in the country is appalling given that the acts perpetrated fits all criterion of rape
, except the filter of gender. In the recent case of custodial torture and death of a father-son duo in Tamil Nadu, the Madurai HC in their oral observation[14] went so far as to state that the police seemed to be overreacting to situations owing to the stress created by the Pandemic.
Similar to its previous stance that objects used to penetrate and sexually assault the male victims did not fall within the purview of rape
, the system in the aforementioned case refused
to consider the act as an instance of custodial rape. Oddly, in the global perspective, the ICC’s[15] definition of rape is broad and gender-neutral where both men and women alike can be victims and perpetrators of rape.
Throughout history, rape has been employ as a tool of intimidation aim to coerce, punish or humiliate an entire community, an invasion of integrity and autonomy of another. The same is employ as a torture method in custody, in most situations the victims are hapless females from a background of socio-economic disadvantage. The reported cases result in acquittal in most instances owing to either
the destruction of the victim’s credibility or the bond existing within the police fraternity. The defense of consent is often used for the former task
while refusal to prosecute documented cases and burial of cases are consequences of the latter.
The concept of consent forms the very basis that can determine a conviction or acquittal in a rape trial. The idea that a detainee would be in a position to express their non-consent and fight their way out of the act
while in custody is inherently flawed and illogical. The present era has liberated the concept of gender from the traditional confines of male and female and amends must be made to tailor to
In a utopian world probably such expansion would bring to light the numerous atrocities against individuals that are unreport owing to them not being female enough for rape. However, such a law could be futile
when considered in the light of how the stringent laws we are equip with currently have provided us no evidence
to show that the authorities have been willing to enforce it.[16]
[1] Prosecutor v. Kunarac, Kovac, and Vukovic, Judgment, Case No. IT-96-23/1-T (Feb. 22, 2001).
[2] The Prison Rape Elimination Act 2003 Sec. 3 cl. 2.
[3] Commonwealth v. Brian Butler,19-P-352 (2019, Massachusetts Appeals Court).
[4] Anna Doe v. City of N.Y., 18-cv-670 (2018, Eastern District of New York)
[5] Tuka Ram And Anr v. State Of Maharashtra 1979 SCR (1) 810
[6] (1979) 4 SCC (Jour) 17
[7] Shiv Kumar Gupta v. State Of Uttar Pradesh, LAWS(ALL)-1988-9-57
[8] P.S.N Prasad, The Police and Rameeza Bee:Muktadar Commission’s Findings., ECONOMIC AND POLITICAL WEEKLY
(July 27, 2020, 4:50 PM) ,www.jstor.org/stable/4366913 last seen 27/06/2020
[9] Indian Penal Code 1860 Sec. 376 cl. 2.
[10] Indian Evidence Act 1872 Sec. 114A.
[11] Prem Chan v. State of Haryana ,AIR 1989 SC 937.
[12] State of Maharashtra v. Chandraprakash Kewelchand Jain (1990) 1 SCC 550.
[13] Dr. H. Abdul Azeez, Violation of Human Rights by the Police in Kerala-
A Study , 1, The International Journal of Social Sciences and
Humanities Invention 193, 203(2012) (July 26, 2020, 7:15 PM),
https://www.scribd.com/document/426936208/Custodial-torture.
[14] Police brutality is endemic: Madras High Court on custodial death, The New Indian Express (July 27, 2020, 4:30 PM),
https://www.newindianexpress.com/states/tamil-nadu/2020/jun/27/police-brutality-is-endemic-madras- high-court-on-custodial-death-2162004.html
[15] Rome statute of the International Criminal Court 2011 Sec. 8.
[16] The Human Rights Watch Global Report on Women’s Human Rights, Human Rights Watch, 58, 1995 (July 27, 2020, 5:30 PM),
http://www.corteidh.or.cr/tablas/30967.pdf last seen 26/06/2020.
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