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Custodial Rapes

This research paper gives the overview about the 'custodial Rapes'. Under section 376 of Indian Penal Code each and every rapper is sentenced to rigorous imprisonment which may extend up to life imprisonment along with a fine.

Introduction About Custodial Rapes:
Rape is a crime against the whole civilization. But rapists have all sorts of excuses and justifications for their actions. Women are not an object of pleasure. Due to modernization, carelessness, and lack of education women of our nation is not safe in the country.

These are the factors that are affecting the mindset of people. The thought process of youth is affected so adversely that everyone is helpless. In 1983 the concept of custodial rapes was given importance and after that, the term 'custody' was widened. Custodial rapes are those which are committed by the public servant on the premises. Due to the obstacles or loopholes in the prosecution of public servants and holding them accountable the crime was spread.

Origin Of Crime:
In the late '70s and '80s when a national emergency was declared the powers were dispensed in the hand of states. Every official has misused that power and they started torturing the common people out there. Many incidents came to the light in which police officials or any public servants were torturing in the form of custodial rape. At that crucial time rape was used as an instrument of oppression but unfortunately, it is still there in society.

During the national emergency, the prosecution has exercised the powers in an inhumane manner. They were away from public accountability and had brought down the liberty of citizens. The public servants were not afraid of anything because the power was in their hands and secondly the evidence is within the premises so it was easy to destroy that. At that time they were not bound to follow any protocol so they made it frequent punishment for the women. Many incidents of custodial rape took place and destroyed many families but after that anti-rape campaign was launched.

Cause Of The Crime:
Our society exists within a sphere of duality concerning its perception of women. On one hand, we portray women as goddesses who are worshipped but on the other hand, we subjugate them and push them to the deadly margins of society. We live in a society where a girl child is not allowed to live her life. India has one of the leading rates of crimes against women. Here in India women is just used as an object for pleasure or the household works.

There are lots of loopholes in the system which were identified and misused. These loopholes and the misuse of the powers were the reason for rapes.

There were many other factors which are stated below:
  1. Misinterpretation:
    There is a lack of understanding between the two. People think that women never directly say yes, they think that they have to force them for sex. Most of the time men misinterpret the saying of women. They don't consider the women's statement. The thought process of the society is affected so adversely due to which the crime of rape is still there. Man thinks that he can have whatever he wants.
  2. Lack of Sex education:
    In today's time, there is a lack of sex education among the youth and society due to which the heinous crime is spreading at an alarming rate. Adolescent boys have an urge to explore but they lack the basic education. Skewed sex ratio and lack of knowledge.
  3. Affect of media and cinema:
    There is a vital role of both in the spread of crime because at times we see that in some advertisements women are just shown merely as an object. On other hand, in cinema, there are a lot of things which cause crime. The vulgarity in the dialogues and songs, pornography in the scenes are the main reason.
  4. Wrong assumptions:
    There are lots of wrong assumptions about women. There are many myths about it in society. Some think that women who drink are easy lay as well as outgoing women who are working like to experiment in all areas including sex and many more are there. Men are in the hype because society never proves them wrong, they are always on the right path as they think men will be men.
  5. Government at fault:
    In rape cases government doesn't give punishment on time. The list of such cases is piled up in courts or police stations but no action is taken against the accused. At times it was seen that police officials didn't lodge the FIR in such cases. Most of the times rape is attempted by the children of ministers or MLA's due to which no action is taken against them.
  6. Other factors:
    Apart from the reasons mentioned above, the other reasons for custodial torture can be sexual weakness, sadism, etc. Male police personnel may have a tendency of attraction towards opposite sex prisoners. For the satisfaction of their lust one force and commit rape in the custody or he may use his official position to obtain consent for sexual intercourse.

    An amendment has been made in the IPC, 1860 to provide for stringent punishment for those officers, who use their official position to obtain the consent of female prisoners in the custody for having sexual intercourse with them. The third-degree methods are also applied for 'teaching a lesson' or 'vomiting out anger'. It is the stage, where the professional competence of the individual policeman surrenders before a situation and then he almost goes out of his mind. This can be averted if the policeman could keep their cool, not be overcome or torn by emotions, maintain a philosophical detachment and as a parallel requirement, have sufficient professional skill.

The origin of these cases took place because society saw stains on her body but was unable to see those scars on her heart. People saw her expressive eyes but they weren't able to see her tears. Society saw her torn clothes but they weren't able to see those tears. So there was no one for these victims that's why the 3 major causes of custodial rapes took place in India:

  1. Mathura Case (1972)
    In this case an Adivasi girl from Maharashtra was called to Mathura and after that, her family was asked to leave her in the police premises. The girl was in her teenage and was 16 years old. After that, she was raped by 2 police officials in the station house only
  2. Rameeza Bee Case (1978)
    In this case lady Rameeza Bee aged 26 was arrested along with her husband in Andhra Pradesh. She was kept in the police station for few days and after that the 3 policemen raped her in that premises only. Her husband was beaten up mercilessly to death because he was indulged in some protest.
  3. Maya Tyagi Case (1980)
    In this case, a six-month pregnant lady was arrested by officials on some fake charges, and then she was beaten up in the custody. The officials stripped her naked in Baghpat and was gang-raped in the custody by the public servants only.
  4. Gudiya Rape Case (2017)
    In this case a 16 years old 10th class girl from Shimla, Himachal Pradesh left her school in the afternoon but never reached home. Two days later, her body was found in a ditch in the forest, with her clothes, an empty liquor bottle, and some other items scattered around her. It was clear that she was raped.

Burden Of Proof:
Rape is the only crime in which the victim becomes the accused. This crime is an outrage that cannot be tolerated in any civilized society. According to In Indian courts, the burden of proof lies upon the victims. They are told to recall all the details of it to prove it legitimate. Victims are assaulted in the courts in front of judges when they were asked useless questions like what were they wearing, What was the time and place, and were they drunk or not.

But what authorities fail to take into account is how trauma can quite literally change the way your brain processes information. To go through an event like sexual assault is traumatic and life-altering enough in itself. The situation worsens the moment you add state authorities to it. Holding them accountable is much harder than holding a common man accountable due to the numerous resources and their high posts.

Impact Of These Cases On Society:
The cases which took place during the time of national emergency have created an adverse impact on society. The impact was so powerful that the government started taking action and the crime rate came on the decline. These shameful incidents fueled the women's movement. Anti-rape campaigns were launched. Law reforms around the issue of custodial rape were challenged and they demanded recognition of custodial rape as a separate offense and other changes in the law that would serve justice to the affected women.

These reformative movements had the prime focus of creating women-friendly institutions, dedicated and impartial courts, and a safer environment. When these cases came to light there was fear in the society, upbringing of a girl child became difficult, female feticide was increased. These acts create psychological effects on the mind of victims. In crux, the impact created by custodial rapes was not less than the death of the society and values.

Psychological Affect On Victim:
Forgetting is difficult and remembering is worse. It seems like the victims are left out with nothing. In Indian society, the respect of women is measured on unacceptable factors. The truth is that in such actions women are not at fault, it's the men. The family doesn't support the females and blames them for their actions. It's the family members, the society, and the government who are at fault.

After such incidents, we notice that family members don't want to raise their voices against the crime because they love their dignity more than their beloved ones. Research has gone into understanding what goes within the mind of a rape victim and how the psychological scars deeply embed themselves to cause many more problems years after the deed has taken place.

The most commonly experienced feelings are guilt, shame, and disgust. Society very easily point fingers saying it's because of their consent, the dress they wore, and much more baseless statements. The wounds are embedded so deeply that no one can heal them, all we can do is just support them but then also there are their family members who just kick them out of the house. Victims go through Post-traumatic stress disorder. 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 are affected to the extent where they see suicide as the solution to everything.

Obstacles In Prosecution:
We know that prosecuting the public servant is very hard in our nation. In the country where Government stops from lodging the report to suppress the crime, in that nation it's hard to report the case. The National Crime Records Bureau report states that only 29% of rape crimes are reported in India and the conviction rate is 32.2. While the statistics show that it is difficult to prosecute a perpetrator, the challenge becomes even greater in cases of custodial rapes.

The rape is committed in the premises of police stations, jails, and institutions under the control of the government, the evidence remains within the reach of public servants. So the evidence can easily tamper. However, the women or their family members continue 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:
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 shift in criminal law to provide justice to women who are sexually assaulted in the custody of the police.

This led to various reforms in the legal sector:

  1. Criminal law ordinarily puts the burden of proof on the prosecution from the victim 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 the Evidence Act. The Criminal Law (Amendment) Act, 1983 introduced Section 114A in the Evidence Act, 1872 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.
  2. The term 'custody' was expanded and given a more clear meaning. 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 on the premises of station house.
    • Rape by any of the public servant in his custody.
    • Rape by the person of armed force in the area in which he is deployed.
    • Rape by the management/staff of jail in which the woman is kept.
  3. Enhanced punishments were there as the new legal reforms. 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.
  4. Failure to perform the duty is now considered a punishable offense. If a police officer doesn't lodge FIR then one can case on him and he will get punished for that act. The government is slowly getting strict in rape cases.

Punishments For Rape:
Under section 376 of IPC whoever is there involved in the case shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine].

Role Of Society In Upbringing:
Tomorrow is too late we have to stand up for women at the earliest. Now, we can notice that society is playing a vital role in the upbringing of rape victims. Many NGOs are also started and are working hard for such people. Communist parties and women association is there for them. The government is gearing up in rape cases. Now females are also not afraid of anyone. They have the support of their family and friends.

The associations are working hard day and night for their justice. Police officials and other public servants are now understanding the cause and impact of the heinous crime. Many activists are spreading awareness about rapes. Women are getting their freedom now, We can say that society and its thought-process are changing steadily. India is now growing safely and effectively.

Rape is a worse mark on women it is worse even more than murder. But when it is done by such from whom we believe could help us or would help us in providing justice then it became even worse. Law provides these girls to be protected under the government and so made the laws even harder with harder punishments so that the people don't lose their trust in justice and laws.

But despite all these changes, there is no cut down in the rape cases in fact the crime against women is on rising. The rape cases are like iceberg whereas custodial rape is that ice which is deep under the water and cannot be seen until we ride into it. The courts and the legislature have to make any changes if the laws of rape are to be any deterrence.

The sentence of punishment, which normally ranges from one to ten years, where on average most convicts get away with three to four years of rigorous imprisonment with a very small fine. Courts should understand that the criminals will not understand by such lenient punishments. They didn't think before torturing the people they are investigating. How could we expect they will change so easily. There should be a punishment of death for all therapists.

Written By: Rakshit Kapoor

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