Custodial rape can be defined as "rape perpetrated in any state-owned institution by a state agent." From Dorothy Q. Thomas & Robin S. Levi, Common Abuses Against Women, in 1 Women and International Human Rights Law 139, 213 (Kelly D. Askin & Dorean M. Koenig eds. 1999). 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 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." 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.

Women in custody may be subjected to sexual violence as a form of torture. 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." The former Special Rapporteur has 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.

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."

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."

From 1998 Report of the Special Rapporteur on Violence Against Women, Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms (E/CN.4/1998/54) (26 January 1998); Dorothy Q. Thomas & Robin S. Levi, Common Abuses Against Women, in 1 Women and International Human Rights Law 139, 210 (Kelly D. Askin & Dorean M. Koenig eds. 1999).

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. 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.

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." 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." From Joan Fitzpatrick, International Norms and Violence Against Women, in Women's Human Rights, 532, 544 (Rebecca J. Cook ed., 1994).

In prisons and jails, the state's failure 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. As Amnesty International has explained in its report on women in prisons in the United States: "Contrary to international standards, prisons and jails in the USA employ men to guard women and place relatively few restrictions on the duties of male staff."

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 increasingly the likelihood that women will be guarded by men.

Custodial situations, like refugee situations, place women in relationships of dependency with male guards, officials or other administrators have the opportunity to threaten to withhold benefits to which the prisoners may be entitled (mail, etc.) unless the women "consent" to sexual relationships. As Amnesty International explains, in discussing sexual violence against women in U.S. prisons, 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." From Amnesty International, Abuse of Women in Custody. In Hungary, extortion of sex from female prison inmates for privileges or necessities would not meet the definition of rape under the Hungarian Penal Code, but perpetrators might be punished for "abuse of authority." From International Helsinki Federation for Human Rights, Women 2000: An Investigation into the Status of Women's Rights in Central and South-Eastern Europe and the Newly Independent States 215 (9 November 2000).

Finally, female inmates who report sexual violence may themselves be punished. As Amnesty International explains, while a guard may be transferred to another facility, "[t]he inmate, on the other hand, often faces punishment for engaging in sexual relations with a guard." From Amnesty International, Abuse of Women in Custody.

According to the former Special Rapporteur, some 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.

From 1998 Report of the Special Rapporteur on Violence Against Women, Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms (E/CN.4/1998/54) (26 January 1998); Amnesty International, "Not Part of my Sentence:" Violations of the Human Rights of Women in Custody (1999). Amnesty found continued problems with the treatment of women prisoners in the United States in its follow-up report, Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women.

For a collection of research and reports on custodial sexual assault, click here..