By A.J. Shanthini Devi
Every act done against a person's will is done without his consent, and every such act done without the consent that causes him more injury is regarded as illegal in the eyes of the law. Moreover, one of the most prevalent social wrongs is rape, which is regarded as one of the most unethical acts a man can commit.
Rape is defined as any act (sexual) or intercourse performed on a human against his or her will or permission in order to satisfy one's sexual wants. Rape is committed against both men and women and transgender people in a culture, but the law treats rape as a crime committed against women only, making the situation even more susceptible. Most of the time, such rules render the other gender powerless despite the atrocities he is facing.
Prison is one of the social institutions that function as a reformatory environment for those who do not follow the law or cause social unrest. As part of society, crimes exist in prison, and to be more specific, rape culture exists in prison, where it is often overlooked by society and authorities. Life in jail is already tricky, and having such horrible atrocities committed against them adds to their sufferings and puts them in a position where they are forlorn and abused. In this paper, we will investigate the problem of rape and sexual assault in prison and the numerous legal problems that convicts confront and how society sees this issue. Finally, we will talk about some of the reforms that can be implemented to address some of these issues.
Inside-prison rape and sexual assault are the most overlooked and, unfortunately, an under-appreciated problem rarely mentioned. Though we are very sensitive to rape and other sexual attacks on women (in general) and are well aware of the rising number of these crimes, which has resulted in societal panic, we fail to notice the same against men (in India).
When convicts relate such incidents, we become even more clueless. We are not sympathetic to criminals, and many of us believe that it is preferable to subject the criminal to the same heinous act that he committed, i.e., punishing the criminal retributively to assure and satisfy society and the victim that the criminal has been punished appropriately. It is also believed that this will likely deter other people with criminal motives and intentions from committing similar crimes. “Rape and other sexual assaults against prisoners are common, and these acts are frequently justified by not only the custodial staff but also by the other inmates because the criminal had been made to suffer in the same way that the victim had been made to suffer because, after all, they are considered demons, and thus should be subjected to ill-treatment and no sympathy should be shown towards them.”
Prison rape and sexual assault crimes are rarely brought to light due to the apathetic attitude of the police and other judicial machinery. Justice is for all, and everyone should have access to it; this is something our constitution believes in and states explicitly in articles 14 and 21[i], although it is rarely followed in the case of inmates. Inside the prison, statistics reveal that rape or sexual assault is committed more frequently against males than against women, and the Indian Penal Code, oddly, does not recognise rape against men.
Furthermore, members of the LGBTQ community are much more vulnerable in prison. It is not only about lust or sexual enjoyment; it is about the power and control that one or more convicts can exert over the weaker inmates in order to establish their supremacy and create a sense of threat among the inmates so that no one can stand up to the aggressive and more substantial groups.
Consensual actions are also observed, in which the weaker inmate engages in sexual activity of his own free choice and consent to gain the support of the more muscular inmate; nevertheless, such situations are rare, and forceful consent is more common. Staff personnel, primarily correctional officers, are also implicated in such crimes, believing it to be a regular part of the prisoner's life.
These staff members shut the prisoners' mouths subjected to sexual violence and rape because they promise to provide them with all of the necessities and goods that they require and comfort if the prisoners willingly engage in sexual acts in the future. Those who refuse to accept this promise are subjected to even more heinous torture and violent acts. Even if such occurrences are documented, they lack proof, as proved by various statistical studies, so that no action can be taken against the inmates or staff.
Rape in prison can make a person mad or mentally ill. It can be bloody, traumatic[ii]both physically and mentally, and can cause serious medical problems such as post-traumatic stress disorder (PTSD), acute depression, somatic disorder, and others and render the victim unable to build social bonds.
The culture of the prison
The following three factors have a significant impact on prison culture:
To begin with, prison culture is mainly produced by the fusion of norms, values, ideals, and ideas that an inmate brings with him, as convicts come from diverse backgrounds and have different characteristics, values, and beliefs. Second, prisoners are a different society, one that is cut off from the rest of society, and third, the culture within the jail is based on the rules, procedures, and practices of the prison itself.
When dealing with prison life, culture becomes extremely important because it is the only way to learn about the norms and ideals that the inmates follow. It is expected that culture is followed. New inmates have difficulty adjusting to prison culture since they do not know how to act in prison. As a result, they are frequently unable to acclimatise. Existing inmates frequently bully and sexually assault them to punish them and establish their power and influence over them.
The jail culture is mainly based on fear and domination. Sexual activities also have a role in shaping the prison's culture. According to studies, separating from the ideas of the more substantial class of convicts is the leading cause of sexual attacks. According to studies, inmates' continual fear of sexual assault endures. According to studies, separating from the ideas of the more potent class of convicts is the leading cause of sexual attacks. According to studies, inmates' continual fear of sexual assault endures.
The inner homosexual: this notion is prevalent in jail culture. According to studies, inmates assume that all guys are homosexual. It makes no difference whether your companion is of the same gender or the opposite gender because men have sexual cravings and lusty tendencies.
On the other hand, a women's prison views inner homosexuality in a different light. According to them, it is as though they are assaulting women who cannot embrace their inner homosexuality. According to prison culture's logic, if an inmate does not accept his or her inner homosexuality or dual sexuality, he or she is considered weak. The open acceptance of homosexuality is regarded as significant in prison society. If an inmate publicly admits to being gay, he is praised since he is regarded as a genuine man who is honest with himself.
Sexual Violence in Prison
It is pretty usual in prison to touch inmates' private parts without their consent to bully them or force them to engage in sexual acts. It makes no difference whether consent is freely given or obtained through coercion. According to studies, new detainees, mentally ill inmates, and members of the LGBTQ community are more vulnerable within the jail than other inmates. Perpetrators use deception, intimidation, and threats, but more frequently than not, force and power are used against the target to engage them in sexual behaviour.
Resistance is not an option since the dominating inmate sees it as a challenge, and in order to demonstrate his authority and strength, he places the inmate in a more dangerous situation and uses greater violence against him. Prisoners who are regularly subjected to attacks and rape are eventually seen as sex slaves for the other inmates. It is complicated to reclaim his heterosexual status when an offender is released. Some inmates believe that it is preferable to die than to live as vulture prey to avoid sexual attacks and assaults.
In prison culture, it is considered that an inmate was sexually abused because he was unable to control his fate; he allowed it to happen, and that is why it occurred. The fact that the inmates are sexually deprived pushes them to assault another inmate sexually, and as we all know, masculinity is only perceived to exist when a man subjugates the weaker.
Battling and dealing for sex: it is common to see inmates agreeing to have sex with the more powerful inmates in exchange for favours, presents, and protection from the more powerful inmates. This is by far the most common reason for voluntary sexual actions. Approaching new convicts with offers of protection against actual or perceived dangers from other inmates is a common practice. The main goal is to force the victim to favour the dominant innate sexually, after which he would seek protection from the powerful inmates.
Custodial Rape Laws in India
Section 375 of the Indian Penal Code, 1860 defines rape and lays forth seven scenarios in which a man is presumed to have committed rape. A lady is stated to have been raped by a male, according to the following: if she is forced to have oral sex or penetrative sex (anal or vaginal) or if the woman's consent is obtained deceptively by convincing her that she is legally married to that man, or if her consent is obtained by inducing fear of death or grievous harm, or if her consent is obtained while she is either intoxicated (that man can also administer the intoxicant) or is of unsound mind, or if the girl is a The assent of the minor girl is irrelevant and amounts to rape, as is the case if the lady is unable to articulate her consent.
The Indian Penal Code, 1860, Section 376, provides for the punishment of rape. Section 376, clause 2, essentially intended to include custodial personnel in its scope and describes the situations in which they can be charged with rape against women. “A police officer is said to have committed rape against a woman if the woman was present within the limits of the police station which the police officer is appointed or within the premises of that station, or the woman was in the custody of the police officer or a subordinate police officer who was under that police officer, according to Section 376 (2) (a).”
Section 376 (2) (b) holds a private officer responsible for rape against a woman while she was in his possession or the custody of a subordinate (subordinate public worker); section 376 (2) (c) holds army officers responsible for rape.
 Nishita Makkar, "Harassment in Indian Prisons - Law Insider India", [online] Law Insider India, October 5th, 2021, https://www.lawinsider.in/columns/harassment-in-indian-prisons [Accessed 2 January 2022].  Ibid
Author: A.J. Shanthini Devi
Year: 2nd year
College: O.P. Jindal Global Law School