Custodial Sexual Assault
last updated August 6, 2013
 
Custodial rape can be defined as "rape perpetrated in any state-owned institution by a state agent."[1] State-owned institutions typically include prisons and jails, but can also include nursing homes, hospitals, and institutions for the mentally ill.
 
Custodial sexual assault can also occur outside of an institutional setting. As the former United Nations Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, has explained, "[w]hen police or military personnel enter homes to search, question, intimidate and/or harass, there is at the very least an unspoken presumption, if not an overt order, that those within the home cannot leave, thereby placing them in de facto, albeit in many cases unofficial, custody of the State."[2] Such situations, particularly prevalent during breakdowns of the rule of law, can be called "constructive custody." For example, when police entered a factory in Tirana, Albania to enforce a mayoral decree, their mistreatment of the women was custodial violence because the officers' "custody" of the women began when they entered the factory and the women were no longer free to leave.[3]
 
Under international law, the sexual assault of prisoners can amount to torture when it is carried out by a public official.[4] The Convention Against Torture defines torture as:
 
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.[5]
The rape of prisoners by public officials fits this definition.[6] Moreover, “the failure of corrections officials to take appropriate steps to prevent and address prisoner rape amounts to state acquiescence in this type of abuse.”[7]
 
Although torture is employed against both men and women, some forms of custodial violence and torture are clearly gender-specific. As Dorothy Thomas and Robin Levi explain, "[a]lthough violence perpetrated by the state against women is in many cases indistinguishable from that which is perpetrated by the state against men, states often use gender-specific forms of violence, most notably rape and other forms of sexual violence, to persecute women."[8] Radhika Coomaraswamy emphasized, for example, that
 
[t]he most particularized element in custodial violence against women is the sexualization of torture. Although the sexual anatomy of men as well as women is targeted in the physical stages of torture, rape and the threat of rape, as well as other forms of sexual violence such as sexual harassment, forced impregnation, virginity testing, forced abortion, forced prostitution and forced miscarriage, are perpetrated more consistently against women detainees.[9]
Finally, Dorothy Thomas and Robin Levi note that the custodial setting provides state agents with power over women, power they often use to force or coerce sexual access. Thus, rape of women in prisons, police custody or other detention facilities "not only is perpetrated . . . as a crime of opportunity but also is used as a method of torture."[10] Additionally, if carried out by the State, other forms of sexual abuse, such as the deliberate use of intimate searches, groping, or inappropriate threats, can amount to torture under international law.[11]
 
Women are sometimes taken into custody for their own "protection." The former Special Rapporteur notes that women who are victims of certain crimes or who have done acts that put them in danger of retaliation—such as retaliation in the form of "honor killings"—are often placed in protective custody. These women include "(a) girls marrying outside their religious community or against their parents' will; (b) rape victims; (c) women and girl children rescued from brothels; (d) destitute women forcibly evicted from their homes due to domestic violence; (e) victims of trafficking; and (f) lost and mentally handicapped children." These women are vulnerable to custodial violence while in such "protective custody."[12]
 
Sometimes custodial sexual assault is politically motivated. One such example is the Sri Lankan military’s use of sexual violence against detainees allegedly involved with the Liberation Tigers of Tamil Eelam (LTTE). During the 26-year-long conflict between Sri Lanka and the LTTE, military and police officers sexually assaulted detainees to coerce confessions and to discourage involvement with the LTTE.[13] Another example occurred during the Egyptian Revolution of 2011.There, 17 women protesters were taken into military detention and forced to undergo “highly invasive virginity tests” by the Egyptian military.[14] An additional example is Iran’s systematic use of sexual torture to punish female political prisoners in the 1980s. Many former prisoners and families of former prisoners gave accounts of prison guards forcing young female political prisoners into marriage before they were executed. The fear of rape was also used as a form of sexual harassment against female prisoners. For more information on the sexual torture used on female Iranian prisoners, please see the Justice for Iran report entitled Crimes & Impunity: A pioneering report on sexual torture in Iranian prisons.[15]
 
Although the involvement of state actors in custodial sexual assault is clear, it is often understood not as a form of torture or abuse inflicted by a state agent, but rather as the expression of "private" desires of the custodian. Joan Fitzpatrick, for example, quotes the then Special Rapporteur's description of the torture of a Columbian woman:
 
Maria Elizabeth Suarez Giraldo [was] arrested on 2 March 1990 by members [of the army]. . . . During her detention, she was allegedly subjected to torture and ill-treatment, including being deprived of food and water, receiving death threats against herself and her seven-year-old daughter and being beaten, forced to stand for 8 or 10 hours and jabbed in the chest with pins. She was also allegedly raped by two men.[16]
 
As Fitzpatrick explains, the use of the term "also" indicates that mainstream human rights institutions "have sometimes seen rape of women in detention as an act of personal gratification for the guard and thus 'private' and beyond the scope of legitimate human rights concerns."[17] Like domestic violence and many other forms of violence against women, even custodial sexual assault is often thought of as a "private" violation. "The public/private distinction thus stands as a potential obstacle to effective action against even this form of violence, committed by men bearing the emblems of the state and gaining the opportunity to harm women by exercising the power conferred by the state." [18]
 
Gender Composition Issues
 
In prisons and jails, the state's failure to comply with international standards regarding the gender composition of the guard population and of the prisoner population is a significant factor in the prevalence of custodial sexual assault. Generally, guard populations are predominately male; the complete control that these guards have over prisoners and the need for reduced privacy creates opportunities for them to abuse, assault or harass female prisoners. According to the United Nations Standard Minimum Rules for the Treatment of Prisoners, male staff are prohibited from supervising women’s prisons unless accompanied by a woman officer.[19] However, many countries do not comply with this standard. For example, under anti-discrimination employment laws in the United States, “prisons and jails cannot refuse to employ men to supervise female inmates (or women to supervise male inmates) and in many states there are few restrictions on their duties."[20]  
 
In addition to the threat of sexual abuse, the mere presence of male guards in female housing facilities can re-traumatize prisoners who have been sexually assaulted before their incarceration.[21] This is especially relevant in light of the fact that female prisoners are more likely than the general population to have been sexually abused. For example, a study conducted by the United States Department of Justice (DOJ) revealed that one-third of female prisoners surveyed in state prisons and one-quarter of female prisoners surveyed in local jails had been raped before their incarceration. “Furthermore, approximately 30%, twice as many as the general population, said they had been abused as children,” stated the DOJ report.[22] Female prisoners who have been sexually abused by men before incarceration may not be able to avoid the presence of men where they eat, sleep, shower, and undress, creating high risks for re-traumatization.[23]
 
The United Nations Office on Drugs and Crime has attempted to minimize these situations by prohibiting male guards from holding contact roles in female prisons. Additionally, vulnerable situations, like intimate searches, should be avoided or minimized. If intimate body searches are required, they should be carried out by an outside medical practitioner in a private room and under the supervision of a female guard.[24] The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders,or the Bangkok Rules, recommends exploring alternative methods of security screening to avoid the harmful effects of intimate and strip searches.[25]
 
Prisoner populations, as well, are predominately male. As a result, there may be no facilities available to ensure segregation of male and female prisoners, putting female prisoners at risk of assault from male prisoners and increasing the likelihood that women will be guarded by men.
Female staff members may also either commit sexual abuse or aid male staff in committing sexual abuse against female prisoners. Therefore, “capacity building, training, [and] psychosocial support to staff” is vital for all prison staff members regardless of gender.[26]
 
Custodial situations place women in relationships of dependency, allowing persons in positions of power to threaten to withhold benefits to which prisoners may be entitled (mail, etc.) unless the women "consent" to sexual relationships. As Amnesty International explains, female inmates are "totally dependent on correctional officers in all aspects, including for basic necessities. They are also subject to the guards' abilities to withhold privileges. Some women are thus coerced into sex for 'favors' such as extra food or personal hygiene products, or to avoid punishment."[27]
 
Vulnerable Populations
Certain populations of female prisoners are especially vulnerable to custodial sexual assault. For example, all women, but especially poor and illiterate women, can be coerced into confessing to crimes for which they are innocent under the threat of sexual abuse.[28] Women are also “at particular risk of abuse by staff during prison transfers and transfers between pre-trial detention facilities and courts.”[29] The presence of at least one female guard during transfers may minimize that risk.[30]
 
Female prisoners who identify as LGBT are at significant risk for sexual assault. According to Amnesty International, LGBT inmates in U.S. prisons are 2.5 times more likely to be sexually assaulted than non-LGBT inmates.[31] In Kuwait, a law passed in 2007 allows police to arrest transgender individuals for the criminal offense of “imitating the opposite sex.” There are no specific criteria for determining whether a person is impersonating the opposite sex and police have been known to arrest individuals based on the softness of his or her skin or voice. Transgender women reported being subject to degrading and humiliating treatment after being arrested. Additionally, several reported instances of blackmail by the police, who used the threat of arrest to force transgender women into having sex with them.[32]
 
Another example involves a transgender woman detained at the Eloy Detention Center in Arizona, United States. This woman was doubly vulnerable to sexual abuse not only because of her gender identity but, in addition, because of her immigration status.  She continues to experience emotional trauma from the sexual assault she suffered while in detention.[33] Detained immigrants are particularly vulnerable to custodial sexual assault because they are often in unfamiliar locations, far away from family and friends, they are undergoing unfamiliar deportation proceedings, and they may not fully understand the language.[34] For example, a guard in the US state of Texas was convicted in 2010 for molesting a number of immigrant detainees as he transferred them to the airport after they were released on bond.[35] Until 2012, immigrant detention centers were not covered under the United States’ Prison Rape Elimination Act (PREA), leaving many immigrant women without protection. However, in May 2012, the United States Department of Homeland Security announced that it would change its policy to conform to PREA standards, requiring immigrant detention centers to provide the same level of protection as prisons and jails.[36]
 
Finally, juvenile detainees are at an increased risk for sexual victimization. For example, in the United States, the  US Bureau of Justice Statistics reported that “3.2 percent of juveniles held in both prisons and jails suffered sexual misconduct involving staff, which was higher than the victimization of adults in prisons (2.4 percent) and jails (1.8 percent).”[37]
 
For more information about women at risk of sexual assault in general, please see the Sexual Assault and Vulnerable Populations section of this website.
 
Handling Custodial Sexual Assault
Victims of custodial sexual assault often suffer further trauma because they are punished for reporting abuse. For example, although a victim may be segregated from guards or other inmates for her own protection, her isolation may in fact be punitive. Complete isolation increases the chances of self-harm and suicide and contributes to the underreporting of assaults. Women can also be more vulnerable to further abuse by prison guards in isolation.[38]
 
At the same time, however, removing a prisoner from contact with her abuser is crucial. AEquitas, an organization that aids attorneys in prosecuting violence against women, emphasizes how extreme care must be taken to protect victims. Specifically:
 
Institutional agencies and administrators should review their policies and practices to ensure that, to the extent practicable, any institutional transfers or protective custody classifications do not unfairly punish the victims or witnesses who are cooperating, do not place them in settings where they can be victimized by other inmates, and do not unnecessarily call attention to their cooperation. Particularly in the correctional setting, scrupulous care must be taken to avoid housing, holding, or transporting defendant-inmates together with witness-inmates who are testifying against them.[39]
According to the Bangkok Rules, prisoners who have been victims of sexual abuse must be informed of their “right to seek recourse from judicial authorities.”[40] The rules also require that victims be informed of psychological or counseling services. Finally, the rules require that measures be taken to avoid retaliation.[41]
 
Intimidation is commonplace in custodial settings and many victims choose not to cooperate with criminal prosecutions for fear of retaliation, either from other inmates or prison guards. Victims thus sometimes stop cooperating with investigations. Therefore, prosecutors need to try cases “in anticipation of issues related to recantation or non-participation.”[42] For example, in the United States, under the Federal Rules of Evidence, a statement that otherwise may be characterized as hearsay and therefore not admissible in court may become admissible as testimony under the rule of forfeiture by wrongdoing. Forfeiture by wrongdoing occurs when a party to a lawsuit intentionally makes a witness or victim unavailable to testify.[43] Thus, if a prosecutor can show that a victim recanted or failed to testify about custodial sexual assault due to intimidation by another inmate or prison guard, the forfeiture by wrongdoing rule may allow the admission of hearsay evidence, allowing an attorney to prosecute the case without victim testimony.[44] For more information on prosecuting sexual abuse in prisons, please see the AEquitas article Prosecuting Cases of Sexual Abuse in Confinement by attorney advisor Viktoria Kristiansson.[45]
 
According to the former Special Rapporteur, many countries have administrative or criminal laws that prohibit sexual intercourse between a man and a woman when the man holds a position of power or authority over the woman or is acting as a public official, thus creating the potential for abuse of authority. Other countries allow an inmate to sue the government in a civil suit if the inmate is abused or assaulted by a law enforcement official or by a private individual acting with the approval or encouragement of a law enforcement official. Most states attempt to separate male and female inmates to protect female inmates from sexual violence and ensure them a measure of privacy.[46]
 
Finally, the monitoring of prisons from outside agencies helps to make prisons more transparent and therefore accountable. For example, the Asian Centre for Human Rights released a statement in April 2013 to the Special Rapporteur on Violence Against Women, Rashida Manjoo, pressuring the government of India to comply with its laws requiring judicial inquiry into cases of custodial sexual assault.[47] Countries can ensure further transparency by ratifying the Optional Protocol to the Convention Against Torture (OPCAT). OPCAT requires that member countries allow outside unbiased agencies to conduct prison visits, minimizing the risk of torturous conduct.[48]

[1] Dorothy Q. Thomas & Robin S. Levi, “Common Abuses Against Women,” in  Women and International Human Rights Law Vol. 1 eds. Kelly D. Askin & Dorean M. Koenig (Transitional Publishers, 1999), 139. 
[2] Special Rapporteur on violence against women, its causes and consequences, “Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms,” U.N. Doc. E/CN.4/1998/54 (Jan. 26, 1998) (by Radhika Coomaraswamy). http://www.unhchr.ch/Huridocda/Huridoca.nsf/%28Symbol%29/E.CN.4.1998.54.En?Opendocument.
[3] Ibid.
[4] Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, “Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,” U.N. Doc. A/HRC/7/3 (Jan. 15, 2008) (by Manfred Nowak). http://www2.ohchr.org/english/bodies/chr/special/sp_reportshrc_7th.htm.
[5] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/RES/39/46 (Dec. 10, 1984). http://www.un.org/documents/ga/res/39/a39r046.htm.
[6] Just Detention International, Prisoner Rape is Torture Under International Law (Feb. 2009), 1. http://www.justdetention.org/en/factsheets/Prisoner_Rape_is_Torture.pdf.
[7] Ibid. 
[8] Thomas & Levi, supra note 1. 
[9] Special Rapporteur on violence against women, its causes and consequences, supra note 2.
[10] Thomas & Levi, supra note 1.
[11] Tomris Atabay, Handbook for prison managers and policymakers on Women and Imprisonment, United Nations Office on Drugs and Crime (New York: United Nations, 2008), 34. https://www.unodc.org/documents/justice-and-prison-reform/women-and-imprisonment.pdf.
[12] Special Rapporteur on violence against women, its causes and consequences, supra note 2.
[13] Human Rights Watch, “We Will Teach You a Lesson”: Sexual Violence against Tamils by Sri Lankan Security Forces (Feb. 2013). http://www.hrw.org/sites/default/files/reports/srilanka0213webwcover_0.pdf.
[14] Amnesty International, Egypt: Checklist to Combat Sexual and Gender-Based Violence, AI Index: MDE 12/013/2013 (Mar. 15, 2013). http://www.amnesty.org/en/library/asset/MDE12/013/2013/en/579010c2-d145-46b2-9e11-10ebad5dbb4f/mde120132013en.pdf.
[15] Shadi Sadr and Shadi Amin, Crimes & Impunity: A pioneering report on sexual torture in Iranian prisons, Justice for Iran (2012). http://justiceforiran.org/crime-and-impunity/assets/crime_and_impunity.pdf.
[16]Joan Fitzpatrick, “International Norms and Violence Against Women,” in Women's Human Rights, ed. Rebecca J. Cook (1994), 544.
[17] Ibid.
[18] Ibid.
[19] First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Geneva, 1955, Standard Minimum Rules for the Treatment of Prisoners (May 13, 1977). http://www.unodc.org/pdf/criminal_justice/UN_Standard_Minimum_Rules_for_the_Treatment_of_Prisoners.pdf.
[20] Amnesty International, USA: "Not part of my sentence": Violations of the human rights of women in custody, AI Index: AMR 51/019/1999 (Mar. 1, 1999). http://www.amnesty.org/en/library/asset/AMR51/019/1999/en/7588269a-e33d-11dd-808b-bfd8d459a3de/amr510191999en.pdf.
[21] Tomris Atabay, supra note 11, at 14.
[22] Caroline Wolf Harlow, Ph.D., “Prior Abuse Reported by Inmates and Probationers,” US Department of Justice, Bureau of Justice Statistics, NCJ 172879 ( Apr. 1999).
[23] Tomris Atabay, supra note 11, at 14-15.
[24] Ibid. at 39.
[25] Penal Reform International, Women in detention: a guide to gender-sensitive monitoring (2013). http://tortureprevention.penalreform.org/sites/default/files/resources/english/women%20in%20detention%20v9.pdf.
[26] Tomris Atabay, supra note 11, at 35.
[27] Amnesty International, Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women (Mar. 2001).
[28] Tomris Atabay, supra note 11, at 8.
[29] Ibid. at 37.
[30] Ibid.
[31] "’Shocking Levels’ of Sexual Abuse in Prisons Cannot Continue,” Amnesty International, May 16, 2003. http://www.amnestyusa.org/news/press-releases/shocking-levels-of-sexual-abuse-in-prisons-cannot-continue.
[32] Human Rights Watch, “They Hunt us Down for Fun”: Discrimination and Police Violence Against Transgender Women in Kuwait (2012). http://www.hrw.org/reports/2012/01/15/they-hunt-us-down-fun.
[33] Georgeanne M. Usova, “Immigrants in Detention: Forgotten Victims of Prison Rape,” American Civil Liberties Union, July 13, 2011. http://www.aclu.org/blog/immigrants-rights-prisoners-rights-womens-rights/immigrants-detention-forgotten-victims-prison.
[34] Ibid.
[35] Ibid.
[36] Department of Homeland Security Press Office, “Secretary Napolitano Announces Standards to Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities” (Dec. 6, 2012). http://www.dhs.gov/news/2012/12/06/secretary-napolitano-announces-standards-prevent-detect-and-respond-sexual-abuse-and.
[37] "’Shocking Levels’ of Sexual Abuse in Prisons Cannot Continue,” supra note 26.
[38] Tomris Atabay, supra note 11, at 38.
[39] AEquitas, Witness Intimidation: Meeting the Challenge (2013). http://www.aequitasresource.org/Witness-Intimidation-Meeting-the-Challenge.pdf.
[40] United Nations Economic and Social Council, “United Nations Rules for the Treatment of Women Prisoners
and Non-custodial Measures for Women Offenders (the Bangkok Rules),”Res. 2010/16 (July 22, 2010). http://www.un.org/en/ecosoc/docs/2010/res%202010-16.pdf.
[41] Ibid.
[42] Christopher Mallios, “Trial Strategies for the Prosecution of Sexual Abuse in Confinement,” AEquitas & National PREA Resource Center, PowerPoint (May 14, 2013). http://www.prearesourcecenter.org/sites/default/files/library/webinarslidestrialstrategies51413.pdf.
[43] Fed. R. Evid. 804.
[44] Viktoria Kristiansson, “Investigating and Prosecuting the Intimidation of Victims of Sexual Abuse in Confinement,” AEquitas & National PREA Resource Center, PowerPoint (July 16, 2013). http://www.prearesourcecenter.org/sites/default/files/library/investigatingandprosecutingtheintimidationof victimsofsexualabuseinconfinementhandout.pdf.
[45] Viktoria Kristiansson, Prosecuting Cases of Sexual Abuse in Confinement, AEquitas (Dec. 2012). http://www.aequitasresource.org/Prosecuting_Cases_of_Sexual_Abuse_in_Confinement.pdf.
[46] Special Rapporteur on violence against women, its causes and consequences, supra note 2.
[47] “ACHR urges UN Special Rapporteur to intervene against custodial rape,” ANI-ANI (Apr. 23, 2013). http://in.news.yahoo.com/achr-urges-un-special-rapporteur-intervene-against-custodial-081733227.html.
[48] Just Detention International, Sexual Abuse in Prison: A Global Human Rights Crisis, accessed 2013. http://www.justdetention.org/pdf/JDI%20Reports/International_Summary_English.pdf.

 

 

 

 

 

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