Rape in custody

Prepared By
Ashwini Kafle
Junuka Thapa
Jaya Sapkota
Susmita Pandit
 What is rape
⚫US Department of Justice describes rape as, “the penetration, no
matter how slight, of the vagina or anus with any body part or object,
or oral penetration by a sex organ of another person, without the
consent of the victim.
What is rape in context of Nepal
⚫Criminal code of Nepal, 2074, Section 219 has described rape as, “ the
Where a man has sexual intercourse with a woman without her
consent or with a girl child below eighteen years of age even with her
consent, the man shall be considered to commit rape on such woman
or girl child.
The rape is said to be committed under following descriptions:

(a) Consent obtained by way of coercion, undue influence,

intimidation, threat, misrepresentation, or kidnapping or taking of
hostage shall not be considered to be consent,
Cont..
(b) Consent obtained at the time of being of
unsoundness of mind shall not be considered to be
consent,
(c) The penetration of penis into anus or mouth,
penetration of penis, to any extent, into anus,
mouth or vagina, insertion of any object other than
penis into vagina shall also be considered to be
rape.
what is rape in India
⚫ Section 375 of the Indian Penal Code which was revised through
Criminal Law (Amendment) Act 2013, A man is said to commit "rape" if
he:–– (a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or any other
person; or (b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a woman or makes
her to do so with him or any other person; or (c) manipulates any part of
the body of a woman so as to cause penetration into the vagina, urethra,
anus or any part of body of such woman or makes her to do so with him or
any other person; or (d) applies his mouth to the vagina, anus, urethra of
a woman or makes her to do so with him or any other person, under the
circumstances falling under any of the following seven descriptions:
 Cont.
1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her
or any person in whom she is interested, in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and
that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
5. With her consent when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome
Substance, she is unable to understand the nature and consequences of
that to which she gives consent.
6. With or without her consent, when she is under eighteen years of age.
7. When she is unable to communicate consent.
Basically, there are various types of rape. Some of them
are:

I. Statutory rape
II. Gang rape
III. Custodial rape
IV. Marital rape
V. Incest rape
Rape in custody or custodial rape
⚫Custody is the state of being imprisoned or detained,
usually pending in trial. The person who is given
custody is known as custodian and the rape from such
person is custodial rape or rape in custody. Rape in
custody or custodial rape is criminalized in India, US,
Nepal, Malaysia, Sri Lanka, Nigeria and other countries.
⚫Custodial rape is to the person in custody. It can be by
police officer, detainer, employee and etc. The term
custodial rape is sometimes used broadly to include rape
by anyone in a position of authority such as an employer,
money-lender, contractor or landlord. However, different
countries have the different definition of rape in custody
or custodial rape.
Cont.
⚫ Rape in custody in Nepal according to the Criminal Code of
Nepal, 2074, “ Section 221,” is the sexual intercourse done by
government employee to person held in prison or detention or
cause the circumstance to another person in order to create
circumstances for the commission by another person of sexual
intercourse with such person.
⚫ Rape in custody or custodial rape has been described in
Indian Penal Code, “Section 376B, “as 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.
⚫In torture, custodial death and custodial rape bill
2014 of Pakistan which was later passed by Senate
custodial rape is defined as public servant or any
person acting in official capacity committing rape or
sexual abuse on the person taken or hold in custody.
Prohibition of custodial rape in Nepal

⚫Chapter 18 of criminal code of Nepal 2074, has

mentioned about the provision regarding sexual offenses and section 222 of
criminal code prohibits custodial rape in Nepal
Sec. 222. Prohibition of sexual intercourse with person in one's own protection
or security:
(1) No person shall have, or aid another person to have, sexual intercourse with
any person in his or her protection, security or custody, and no office-bearer or
employee of any organization providing treatment or rehabilitation services to
persons of unsound mind or suffering from physical or mental illness 145 shall
have sexual intercourse with any person held in such organization.
(2) A person who commits the offence referred to in subsection (1) shall be liable
to a sentence of imprisonment for a term not exceeding three years, and if such
sexual intercourse is an offence under this Act or other law also, the sentence
referred to in this Section shall be added to the sentence under such law.
 Custodial Rape law in India

⚫ Laws related to rape in custody in India: Section 367B in The

Indian Penal Code:
⚫ 376B Intercourse by public servant with woman in his
custody.— Whoever, being a public servant, takes advantage
of his official position and induces or seduces, any woman,
who is in his custody as such public servant or in the custody
of a public servant subordinate to him, to have sexual
intercourse not amounting to the offence of rape, shall be
punished with imprisonment of either description for a term
which may extend to five years and shall also be liable to
fine. ]
Custodial Rape Law in Pakistan
⚫ Whoever commits, or abets the commission of the offence of
custodial death or custodial rape, shall be punished with
imprisonment for life and fine which may extended to Rs.
3,0000,000/- (Three Million Rupees) or the amount fixed as Diyat,
whichever is greater.
⚫ Any public servant or any person acting in an official capacity
whose duty to act and either intentionally or negligently fails to
prevent the commission of the offence of Custodial Death or
Custodial Rape shall be punished with imprisonment for a term,
not less than 7 years which may extend to 10 years and with fine
which may extended to Rs, 1,500,000/- (One Million Five Hundred
Thousand Rupees).
⚫ The fine, if recovered, shall be paid to the legal heirs of the victim
or to the victim as the case may be. In this case fine is not
recovered, additional imprisonment shall be awarded which may
extend to five years.
case
The Supreme Court in TukaRam Vs State of Maharashtra.

I. Mathura was between 14 and 16 years old of age , orphaned tribal girl when she was
raped by two constables at night inside Desai Ganj Police station in year 1972.
Ii. Mathura was taken as one habituated to sex by Session Judge. It pronounced a
reverting verdict.
Iii. On appeal, the high court penalized one of the constables from five years
imprisonment and another accused was directed to be imprisoned for one year.
Iv. This case went to the Supreme Court. The Supreme court overturned the
conviction of perpetrators and upheld the decision of the session court.
V. The Supreme court could not visualize and understand the trauma and silence of a
young girl in the custody of those who assaulted her were in a position of authority.
Vi. This case gained momentum in both social and legal terms because of the
protests it sparked and it eventually led to reform in the rape law in 1983.
Vii. Since then rape has been construed as brutal act of abuse of power and custodial
rape further attracts straight punishments.