research paper on custodial violence

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Children Exposed to Violence: Child Custody and its Effects on Children in Intimate Partner Violence Related Cases in Hungary

Júlia galántai.

1 Linköping University, Institute for Analytical Sociology (IAS), Linköping, Sweden

2 MTA TK Computational Social Science - Research Center for Educational and Network Studies (CSS-RECENS), Budapest, Hungary

Anna Sára Ligeti

3 Hungarian Statistical Office, Budapest, Hungary

Judit Wirth

4 NANE Women’s Rights Association, Budapest, Hungary

Violence might increase post-separation, and visitation can offer an opportunity to the perpetrator for maintaining power and control over the mother and child. In relationships where intimate partner violence (IPV) exists, it is hypothesized that fathers may continue their violent behaviors throughout visitation with children. The study uses mixed methods: After completing of a screening questionnaire ( n  = 593) we recruited 168 individuals from our sample with problematic child custody cases who completed an online survey. Semi-structured interviews were conducted with 30 mothers with experience of problematic child custody cases. This paper reports only the qualitative results of the research. The findings highlight how custody and visitation rights may be used as a form of custodial violence and a continuation of IPV. Problematic child custody and visitation cases were reported following separation from an abusive partner because using legal proceedings as a weapon to maintain power and control over the former partner and child. Institutions involved in custody and contact-related legal procedures do not take into consideration the violence of the abusive ex-partner as a factor when determining custody and contact arrangements, even though it may work in opposition to the child’s wellbeing. The analysis of the data shows that child custody and visitation arrangements did not reflect clear understanding of domestic violence, coercive control and the effects of these on children’s wellbeing. Fathers were reported to be able to control the everyday lives of their ex-partners and their children through lack of institutional recognition of domestic violence.

Introduction

This study investigates child custody in Hungary, particularly in cases where visitation of a male parent is considered contrary to the child’s physical or mental well-being and safety. In some cases, violence increases post-separation, so visitation can be concerning in that it offers an opportunity to the perpetrator for maintaining power and control over the female adult victim and the child.

In recent decades in Hungary, the number of divorces has increased, with the result that – either following court-approved agreements by parents or through court decisions following litigation – children are placed at one parent’s home, with the other parent having varying visitation rights. Census data in Hungary show that in 2016, 18% of all families were single-parent families (503 thousand families). In 2016, for 87% (431 thousand families in total) of single-parent families, the mother was raising children alone, while in 13% of cases (72 thousand families) the father (Hungarian Central Statistical Office, 2016 Microcensus data). In a Hungarian representative survey, the only survey to date gathering this data in Hungary, 36% of the respondents answered that they grew up in a family where violence was present, where they feared as a child that their parents would fight, quarrel loudly, threaten each other with physical violence, or where their father had beaten their mother (Tóth 1999a ; Tóth 1999b ).

In 40% of adversarial divorces in Hungary, children are placed with the father. In contrast, in cases when parents can agree on their own about major issues including placement, custody and/or contact arrangements, fathers become custodial parents in only 7.7% of the cases (Grád et al. 2008 ).

Child custody is a complex phenomenon which is influenced by the parents of the child, family members, and also institutions that regulate the process of child-visitation and custodial rights. This process is even more complex if we analyze the effects of abusive relationships on child custody and visitation. Violence does not always end with the separation of a couple. In fact, the separation period can be the most dangerous part of an abusive relationship as the abusive person may start a battle for child custody to maintain power and control over the child and by that process over the mother as well (Hester 2000 ; Callaghan 2015 ). With no existing research on this topic in Hungary, this study represents a very first step to investigate the issue of abuse of power and control in child custody and visitation cases with a history of intimate partner violence (IPV), and its effects on its victims in the Hungarian context. This paper draws on the findings of qualitative research conducted with 30 mothers who self-identified as experiencing intimate partner custodial abuse.

Custodial or paper abuse (Miller and Smolter 2011 ) – the instigation of frivolous lawsuits, false reports of child abuse, and other system-related manipulations – has been recognized for some time now by practitioners and researchers as the methods perpetrators employ to continue to exert power, force contact, and financially burden their ex-partner. However, Elizabeth ( 2017 ) introduces the notion of ‘custody stalking’ with an equal focus on children, as a mechanism abusers use to control mothers following their separation. This is defined as a malevolent process involving fathers who use the custodial or legal process to overturn the historic patterns of sharing responsibilities and care of children in order to extend their control over the children and thus the mothers (Elizabeth 2017 ). Custody stalking is still not well recognized and is often invisible to professionals as well (Elizabeth 2017 ; Holt 2018 ; Hunter et al. 2018 ).

Research Questions

International literature suggests a direct correlation between adversarial divorces and IPV, as well as pointing to the detrimental effects of IPV on post-separation child custody and visitation outcomes (Bancroft and Silverman 2002 ; Elizabeth 2017 ; Holt 2011 ; Holt 2018 ). However, no research has been carried out in Hungary to explain or contextualize these experiences. Thus, in combining the Hungarian experiences of women leaving abusive relationships and the findings of research elsewhere, our main research questions are as follows:

• Are custody and visitation rights used as a form of custodial violence and thus a continuation of IPV in Hungary;
• How do institutions involved in custody and contact-related legal procedures in Hungary take into consideration the violence of the abusive ex-partner as a major factor when determining custody and contact rules;

Literature Review

Custodial violence often occurs through the exercise of irregular visitation appointments, or by means of financial exploitation through hiding joint finances or reducing support payments (Bancroft and Silverman 2002 ). Due to social inequalities and domestic violence, men are typically more financially secure than women, and abusers often try to buy the goodwill of the child (Emery et al. 2005 ).

Children exposed to violence may suffer from various behavioral and emotional problems, are more frequently referred to speech therapy (Kernic et al. 2002 ), more likely to be absent from school and more frequently show problematic behavior in schools, which can lead to school dropout (Byrne and Taylor 2007 ; Callaghan 2015 ). Children experiencing problematic child custody may also have impaired verbal abilities (Graham-Bermann et al. 2010 ) and reading skills compared with their peers (Blackburn 2008 ). They are also more likely to repeat classes in school (Sullivan et al. 2008 ). Research shows that it is not only as a direct victim of violence but as a witness to their mother’s abuse that can lead children to develop serious mental and behavioral disorders such as anxiety, difficulties establishing relationships with peers, and depression (McLaughlin et al. 2012 ). In some cases, the child – as a self-defense mechanism – takes up the role of the father and is later aggressive to or contemptuous about the mother, and this attitude may reoccur in the child’s future partnerships as well (Kernic et al. 2003 ).

Violent partners may also continue to be manipulative and maintain control over their ex-partners, thereby continuing to traumatize their children as well (Thiara and Humphreys 2017 ). The abusive partner also often accuses the mother of ill-treatment, alcoholism or drug use at the child guardianship office (Mullender et al. 2002 ), accusations which when believed can result in the child being placed in the care of the abusive parent. In this way, professional bodies such as the guardianship office, police or child welfare agencies, can be employed as weapons of institutional violence against the mother (Hester 2011 ; Holt 2017 ). In some cases, the threats or accusations that the abuser engages in to obtain custody and visitation rights becomes the primary instrument for maintaining the abuse of the mother (Holt 2018 ; Hunter et al. 2018 ).

Not all such parental behaviors fall into the category of criminal acts, but they do act to undermine the mother’s authority and parenting skills. These behaviors may also have the effect of hindering various relationships that the victims have (for example, with other family members, friends of children, co-workers, peer-parents, and teachers), detrimentally affecting the emotional well-being of the family and the development of the child (Kitzmann et al. 2003 ; Holt et al. 2008 ). Other adverse effects on the well-being of children from both direct and indirect abuse, arise from the ongoing fear that the abuser will be violent again, leading to an increase in anxiety levels (Coulton et al 2009 ), a higher rate of depression among children involved in problematic child custody cases, and their finding it difficult to maintain relationships as adults (Kernik et al. 2003 ). Using a divorce procedure to undermine the mother’s otherwise unproblematic parental behavior may itself indicate the presence of abusive behaviour on the father’s part and, as such, put his own parental skills into doubt. However, such behaviour is rarely considered to be grounds for refusing requests for custody (Humphreys et al. 2011 ).

Abusive fathers often blame mothers for ending the relationship, and involve children in arguments regarding the divorce which may cause additional damage to the mother-child relationship in the longer term (Radford and Hester 2006 ). Children that are alienated from their mothers may start communicating with their mothers with anger, distrust, or a sense of shame. They may also take on the abuser’s role by acting in a superior way, or may be ashamed to be in touch with their mother under any circumstances. This can have significant effects on the mother-child relationship (Lapierre et al. 2017 ) and may lead to serious personality disorders for the child (Bancroft and Silverman 2002 ). The abusive father might also try to manipulate the child during visitation periods to maintain control over the child and the mother. These mechanisms can be even more pronounced if the father has obtained legal custody over the child (Beeble et al. 2007 ).

In the last few decades, much research has been conducted about children’s exposure to domestic violence and, more recently, coercive control, which identifies potential related symptoms of post-traumatic stress disorder, a lack of social skills, and emotional and behavioral problems (Kernic et al. 2003 ; Överlien 2010 ; Holt et al. 2008 ; Katz 2016 ; Callaghan 2015 ). According to Bandura, who developed Social Learning Theory (Bandura 1963 ), children who have been exposed to domestic violence are more likely to be abusive than those who were not exposed to violence as children, a phenomenon theorized as the Intergenerational Transmission of Violence (Wallace 2005 ). Katz ( 2016 ) cautions however that mothers and children often provide each other with emotional support, reducing isolation and nurturing the mother-child relationship.

Children can also experience coercive control – a pattern of controlling behaviors and coercive strategies where the abuse targets the victim’s human rights: liberty, personhood, freedom and safety, and is not necessarily dependent on whether or to what extent physical violence is present – through ongoing financial abuse, monitoring and isolation, resulting in limiting their familial, social and extracurricular activities (Stark 2007 ; Callaghan 2015 ; Katz 2016 ). If children are enrolled in coercive behaviors, they are used as tools to exert control as direct victims of controlling and coercive acts (Hardesty et al. 2015 , Callaghan 2015 ). It is also common that children are involved in coercive control activities by the perpetrator, including isolation, blackmailing, monitoring activities, stalking, and to legitimize violent behavior (Callaghan 2015 ; Stark 2007 ).

Research has also showed that children may not always witness acts of violence but are still aware of abusive behaviour (Devaney 2010 ; Överlien and Hydén 2009 ; Mullender et al. 2002 ; Överlien 2013 ), and should nonetheless be recognized by professionals as survivors of violence, not as passive witnesses of domestic abuse (Överlien and Hydén 2009 ). Kernic et al. ( 2003 ) argued that maternal distress can result in behavioral problems in children, while children who grow up in families affected by domestic violence have been shown to have a higher risk of mental health problems (Bogat et al. 2006 ; Meltzer et al. 2009 ; Callaghan et al. 2018 ), a higher risk of physical health difficulties (Bair-Merritt et al. 2006 ), and are at greater risk of encountering educational difficulties such early drop out or learning difficulties (Byrne and Taylor 2007 ; Callaghan et al. 2018 ).

When parents separate after a prior history of domestic violence, the risk to children of periods of violence and exposure to violence increase (Campbell and Thompson 2015 ; Lessard and Alvarez-Lizotte 2015 ; Broady and Gray 2018 ). As system theorists argue, if we include a third person in an intimate dyad, then such a relationship can be understood as a triangulation. The ordinary way of interacting in cases involving violent relationships may provoke the child to take sides or build alliances against another sibling (Callaghan 2015 ; Dallos and Vetere 2012 ). The triangulation of children during domestic violence can result in split loyalties, scapegoating, or long-term psychological distress (Callaghan 2015 ; Amato and Afifi 2006 ). To conclude, we consider that the abuse of children often occurs during IPV-related cases as a strategy for intimidating and controlling the former partner. Failing to consider this fact during the post-separation process can risk placing the child in unsafe situations (Hester 2000 ; Callaghan 2015 ).

In many cases the underlying assumption (Holt 2018 ; Hunter et al. 2018 ) of authorities seems to be that a child’s best interest is served when both parents are involved in child rearing activities. Decisions based on this assumption and granting custody or visitation to the abusive parent, even where was not involved in child care before the separation, provides perpetrators with a channel to maintain coercive control over the mother (Elizabeth 2017 ). In this regard, custody stalking can be a form of coercive control that humiliates and punishes women after separation, and may represent a weapon with which the mother-child relationship is weakened and attacked (Katz 2016 ). Despite this, it is not widely recognized by child-support authorities or family lawyers and may lead to post-separation arrangements that work against mother-child care time and the mother-child bond (Elizabeth 2017 ).

Custody stalking may result in the perpetrator obtaining generous visitation rights or even custody, with a corresponding involuntary loss of maternal care time following separation that may damage the psychological wellbeing of both mothers and children and have a detrimental effect on women’s mothering relationships (Elizabeth 2017 ). In addition, when a mother opposes the father’s award of care time in court or through legal proceedings, this can be, and often is, interpreted as alienation or hostility towards the father, and may also result in the amount of caring time for the mother being decreased (Elizabeth et al. 2010 ). Yet, neither of these types of malevolent attacks are widely recognized, and thus continues to hurt children and mothers.

Legal procedures and bureaucratic mechanisms of the state can be identified as a form of “secondary victimization” or “secondary abuse” using blame of the mother’s mothering style with hegemonic masculinity (Roberts et al. 2015 ; Heward-Belle 2017 ). Gender theorists claim that institutions, like families, are gendered and formal institutions reproduce what may be called the “gender regime” (Chung and Zannettino 2005 , Heward-Belle 2017 ). Accordingly, in an invisible manner these institutions – which are meant to protect children and promote their well-being – intervene in the lives of the latter on behalf of fathers who use violence to control their partners. It is not rare that institutions minimize any violence, blame mothers for violence (Heward-Belle 2017 ), and in some cases threaten to grant the abuser sole custody (Saunders 2017 ).

We can conclude that post-separation contact involves a potentially abusive experience for children who are exposed to domestic violence (Holt et al. 2008 ). As research shows, one- to two-thirds of all abused women experience post-traumatic stress disorder, low self-esteem, depression and anxiety, while during legal procedures many abused mothers develop negative attitudes toward family courts and judicial systems, and feel depressed or anxious after encountering them (Elizabeth 2017 ).

In the following section we outline the methodology employed for the purpose of this study, before moving on to selectively present the findings, analyzing these in the context of the literature we have just reviewed in this section.

To test our research questions, a mixed methods research design was employed, involving data collection over three distinct yet interrelated phases. Phase one involved the administration of a survey which was designed to engage both women and men who had gone through a child custody case, this involved a 10-min-long online questionnaire that was disseminated through online social media and several online magazines with a reach of hundreds of potential respondents country-wide. This survey was completed by 593 participants, who were as part of the survey completion, invited to express interest in volunteering for phase two, which involved initially filling out a 40–50 min-long second survey that focused in detail on their child custody process and experiences of IPV and also possibly participating in a semi-structured interview. The second survey, which focused specifically on those who considered their cases to have been problematic, was completed by 168 persons, 130 of whom were considered to have experienced a problematic visitation/custody case according to the criteria of our research (i.e., the partners could not agree on the child custody of their child). Among these survey respondents, 30 agreed to participate in Phase three which involved their participation in a semi-structured interview. This paper reports only on the qualitative semi-structured interviews.

Respondents in phase three of the research were female: mothers who had experienced violence during their relationships, and experienced problems with their child’s custody or contact arrangements. The interviews aimed to generate insight into IPV-related custody procedures as a whole in Hungary, but also to capture in-depth and precise information from mothers about their feelings and the effects of child custody on their children. Interviewees for phase three were purposefully selected from the list of 130 consenting participants emerging from phase two, with a view to maintaining sample variability regarding interviewees’ place of residence, age, employment status, and education level. The selected interviewees were mothers who had to have had at least one child with their abusive ex-partner, and they had to have been separated for at least two months prior to the interview. Their relationships could have been of any type (marriage, cohabitation, non-cohabitation). All participants, including the survey respondents and the interviewees, were informed that their responses would be kept strictly confidential (no sensitive data that could be connected to the respondent or their child such as address, age, school name, employer name, etc. would be released). All participants signed a consent form before the interview, indicating that they were voluntarily taking part in the research. They were also provided with the telephone numbers of civic organizations in case they wanted to seek help in the future. As the focus of the research was post-separation child custody and contact problems, in order to qualify for participation.

Before the interview started, interviewers informed all participants about the aims, and they were told that they could stop the interview if they wished to at any time (Overlien and Hydén 2009 ). The interviews lasted about 60–90 min on average and they were always conducted in person in a safe place with no other companion present. The interviews were semi-structured, recorded and then transcribed verbatim. No incentives were used to recruit participants. Although all the interviews were very emotional, interviewees reported that it was good to talk about their trauma and experience and felt relieved after the conversation (Vajda 2006 ). The interviews were paused for a break if and when needed (Overlien and Hydén 2009 ). An interview guide was used during the interviews and transcripts were analyzed using NVivo 10 software.

The study followed the ethical principles recommended by the Hungarian Medical Research Council’s Ethics Committee, and the proposed research process and data protection plan was officially approved by the Committee. Respondents remained anonymous.

In the next sections we respond to our research questions by drawing on the qualitative findings, exploring if and in what way custody and visitation rights may be used as a form of custodial violence with the continuation of IPV. We also explore engagement with the institutions involved in child custody and the contact-related legal procedures in Hungary and its response to families involved in child custody and post-separation custodial abuse.

Maintaining Intimate Partner Violence after Separation

During the interviews, some of our interviewees formulated clear explanations about the legally enforced child custody for abused partners and children and how they perceived this mechanism of abuse by the abuser. Participant mothers suggested that the acts the father commits against them are obviously not signs of care or love, but only involve a desire to maintain power over her and her child, as these next participant quotes explain:

I think he should have calmed down now. I don’t say he is holding on to me, it’s more that he had a property and he lost it. When such a man loses his property, his soul cannot find peace. (P.K.) He was always quarreling: he has been on the phone too: ‘How are you talking to me!? Don’t dare to hang up on me!’ So, while the physical abuse stopped, the psychological abuse of the child increased. And it took me two years, and a lot of hard times, to understand that it's not that he wants to see the child, but rather that he wants to keep us in a state of fear. So, it was very hard work, and I realized that this is not love, it is absolutely abuse. (J.K.)

As the latter quote illustrates, abuse often persists after separation when there are shared children from an abusive relationship. It is also evident that this fact is not easily identified by the authorities: the abusive ex-partner’s control-maintaining mechanisms usually take covert or invisible forms such as financial deprivation, isolation, verbal humiliation, the undermining of parental authority, repeated allegations of non-cooperation, or unpredictability regarding time-keeping. It is also a common characteristic of abusers at this point to disguise such behavior as part of the ongoing coordination of placement or visitation arrangements. Besides more covert forms of abuse, access to children presents a good opportunity for the abusive parent to continue to use or commence using physical violence, which may also involve stalking and harassment. Each of these abusive methods alone, and especially their cumulative effect, has the potential to significantly influence the life of the abused ex-partner.

The overwhelming majority of the interviewees reported that children were present when the various abusive acts occurred. In some cases, the child was described as being involved as a ‘passive’ participant, witnessing their mother being abused by the father, while in many cases the child was alleged to be a direct victim of the father’s abusive behavior. Unpredictability was also a recurrent theme, mentioned as being difficult for the children to bear. Both witnessing a father’s violence and being a direct victim of physical violence are identified in this mother’s recounting of events:

When he picked a fight, I just wanted to run away. And the children were there too and saw this. He got so enraged that he grabbed the child and threw him on the bed and injured his spine. The children are afraid. (A.K.)

Fathers were also reported to behave so that their children were in a state of complete uncertainty, undermining the basic trust the latter have in their parents. In this interview, a mother reflected on the pain the father’s unpredictability had caused her children:

When the children ask him, he never tells them where they are going, or what they are going to do... When they try to ask what will happen in two weeks’ time... and he just doesn’t answer either me or the children... so they don’t like to go with him, because they are kept in uncertainty… (P.A.)

Concurring with the literature, the most frequently reported behavioral problems of children exposed to violence include anxiety, depression, learning difficulties, attention difficulties and aggression (McLaughlin et al. 2012 ). Anxiety and fear of the father because of past memories of violence were reported in this present study to emerge as physical symptoms or mental disorders, as the following quote suggests:

The children can’t even begin psychotherapy because their father won’t give his consent. And the Institute of Education would only admit the child after a first-instance court decision was issued. However, the middle child has already been diagnosed with depression, while the oldest boy needs full psychological treatment: He has severe self-esteem issues. Because of this he is unable to fit in, he has no friends. (H.B.)

In this study, participant mothers reported that children did not want to attend the visitation periods that they were obliged to by the authorities. Suggested reasons for this included bad memories that made them anxious about spending time with their father without the presence of the mother, but often these experiences were reported to occur during the visitation period as well. In some cases, the father was reported to not only isolate children from family members and friends, but also neglect their basic needs (like eating, learning, or keeping contact with the outside world). In such cases – as shown in the quotes below- these behaviors did not change the custody or the visitation rights of the father, even though the mother notified the authorities about what had happened to her children:

And, in the beginning, it was ‘kids, go, you must go’. Then he was on his way, and the girls said they didn’t want to go because he didn’t give them food and that it was cold. He left them, locked them in the house alone. He requested that the children be placed with him but he never applied for an extension of his visitation rights. (G.R.) He took away their textbooks, didn’t let them study, took away their phones, and didn’t let them talk, not just with me, but with anyone. He never let them visit their friends and their friends couldn’t visit them either. He kept them in seclusion and didn’t even let them talk to the neighbors. (L.M.)

Although malicious prosecution or abusive litigation has not been extensively researched yet, it has been identified by women and by practitioners in the field for a long time (Douglas 2017 ). Related to both the first and second hypothesis, as our study shows how this abusive tactic may include filing civil suits in family or civil court, starting various (and numerous) procedures with a guardianship authority against the custodial parent, or pressing criminal charges based on unfounded allegations against an ex-partner (usually the custodial parent). This form of abuse was reported in most of the interviews where the mother was the custodial parent.

To further abuse the mother, abusive partners were reported to make allegations of various types (involving crimes or misdemeanors) to authorities which then kept calling the latter in for hearings and requiring them to constantly write appeals, thereby helping the father control them and manipulate authorities. One of the cases is mentioned below:

We have been in litigation for 10 years. Or rather, he is suing me, as I was always the defendant and he the applicant. He has been suing me for 10 years, sometimes at the guardianship office, sometimes in court. It is terrifying that he spends his days on this. (P.L.)

It was apparent from the interviews that unreliability in terms of complying with visitation times and dates that had been arranged was one of most obvious methods abusive ex-partners employed in order to re-establish control, and this was felt by respondents as manipulation of their and their children’s everyday lives and well-being. This form of abuse (re)creates a sense and a reality of loss of control, as one of the respondents explains:

...he doesn’t want to upset the old order... So the point is, he keeps us in a dependent position just like he did throughout our entire lives. He wants me to positively not know what will happen or when - he wants to decide about everything. (M.I.)

Another type of control and power wielded over the ex-partner involved in child custody and authorities is that the abusive father can hand in a formal accusation claiming that the mother has restricted his right to see their child, and that he could not enjoy visitation rights (Khaw et al. 2018 ). If a child does not want to go for a visitation because they have fear or anxiety about the father, but the father has a written, legally valid visitation right, he can hand in an accusation that will result in the mother being fined for restricting his visitation rights. In this case, the legal action can undermine the victim and involve her in long court proceedings, as the following quote illuminates:

...I received a letter saying that, because I had endangered the child [by not ensuring the exercise of contact rights], not only would the child welfare center place her in foster care, but they would also press criminal charges against me because I obstructed the visitation process. And I was completely broken. After all, I've been everywhere, I asked for help from the child welfare center, but nobody helped me, and now I will go ... [to jail] or I am deemed to have committed a crime? While the father is shouting at my daughter 'I will put your mother in jail?!’” (P.K.)

As cited in the literature, another method abusers regularly use to discredit mothers in child custody and placement cases is to allege that the woman is an unfit and irresponsible parent because of alcohol or drug use or insanity (Bancroft and Silverman 2002 ). Our findings also suggest that the use of this tactic tends to start before separation as a form of IPV, but it also paves the way for later litigation by perpetrators aimed at sole custody or placement. Even during the relationship, abusers manipulate their children with lies, hints, allusions and insinuations with this tactic (Bancroft and Silverman 2002 ). These accusations may alienate children from their mother (often the only protective relationship the child has in the family) and cause them to deprecate or despise her (Lapierre et al. 2017 ).

The findings from this study suggest that if these defamations are taken as valid by the authorities or court, the child can be placed with the father, totally obstructing the mother-child relationship and often leading to the total alienation of the child, as we can see from the testimonies of our interviewee:

He started a large-scale campaign against me through the children; he practically persuaded the children to mock me, to spit at me, telling them that had I ruined and devastated the entire family. He made up stories about me sleeping with strangers, forced them into fantasizing about sexual things, even going into details about what I did with men, which were not true, of course... and that I was an alcoholic and mentally ill (F.A.).

The findings of this present study highlighted how the abuser often used various types of procedures in contrary to the custodial parent, or press criminal charges based on unfounded allegations against mothers to discredit them in child custody and placement cases.

Institutions’ and Organizations’ Roles and Contributions to Custodial Abuse

The existing literature already suggests that public agencies and institutions, such as the child guardianship authority, the police, and the courts, rarely consider that custody or visitation rights may work in opposition to the child’s welfare or safety, even if the child has directly suffered abuse, witnessed violence, or shows clear symptoms of post-traumatic stress disorder (Bancroft and Silverman 2002 ; Holt 2018 ; Khaw et al. 2018 ).

Our qualitative data demonstrates a pervasive lack of attention to violence on the part of authorities which handle child custody cases in any capacity. In almost all participant cases in this present study, they are reported to have failed to show any sign of recognizing the unbalanced dynamics of relationships, and the action of the perpetrator as abusive. Instead, they were reported by participants to handle such situations as if they involved mutual disagreements between partners with equal power (denying any of the effects violence can have on a victim) and equal responsibilities (implicitly or explicitly refusing to hold abusers accountable for their violent or abusive actions). A number of interviewees asserted that public agencies read the violence in the relationship as a communication problem between the couple which they together should manage. In some cases, the guardianship authority were reported to go even further, suggesting placing the child in care, claiming that both parents were too busy fighting each other and were thus unable to care for the child. This approach was experienced by participants as denying the impact of the perpetrator’s violence and holding the victim at least equally responsible for the situation. This approach was also apparent in the handling of visitation cases that were reported in this study. Visitation, and especially sleep-over contact with an abusive parent, was reported as being frequently disliked by children, who asked not to go, and in some cases mothers reported that they tried to comply with this request by not forcing their children to participate in such contact.

It was not uncommon for our respondents to report an absolute lack of recognition of the significant impact of the abuse on their children on the part of the public agencies entrusted with child protection tasks. As one mother describes her experience:

They don’t care why the children were not with him, their only point is that they weren’t with him when the father was entitled to it. And after all this they summoned me to the child welfare office and told me to sit down with the girls and tell them they had to go. They said I had to tell them this one-and-a-half days must be endured so that we could have 10 or 11 days of peace. And then the children went, but they were crying. (F.A.)

If women did not comply with such requests, they stated that they would be threatened with removal of children to foster care. Some participating women concluded that these threats were a way for the authorities to intimidate the mothers into giving up her attempts to protect the children from traumatic visitations because authorities felt overloaded by parents’ accusations and reports ‘against each other’. No visible sign that the actual merit of these accusations was being investigated was reported as apparent in most cases, thus it appears to participants that authorities assigned equal responsibility to the abusive parent who had initiated reports, and the victim who initiated reports about abusive behavior.

Another recurrent theme in the interviews as the mothers reported it was how the tactics of the abuser also worked on the employees of various agencies (guardianship office, child-welfare center) who, after experiencing accusations, harassment and threats of lawsuits, felt victimized by the father. In these situations, as mothers explained the targeted employees or the authority itself wanted to get rid of the case by passing it over to another case-handler or another authority altogether (sometimes in another city), deliberately reporting a conflict of interest as shown below from some interviewee:

He made a complaint against the social worker, so yesterday it was the fourth social worker who gave our case back. They were attacked in such a manner that they couldn’t mentally endure it. My ex-partner also said that the judge was biased, cynical, and petty.(P.K.) I think there is an abusive person, the father; and there is an abusive office, which is the child welfare center. If I had to describe what it this like, it is the same as an abusive person. It threatens, does not pay attention to the things you do, does not understand what you say. (L.P.)

As the interviews show, wearing agency employees out with (threats of) frivolous lawsuits, complaints and retaliatory procedures against them, and the harassment of employees may lead to constant changing of caseworkers and even changes in the agencies that handle the cases. At a minimum, this was reported to facilitate the perpetrator to maintain considerable power and control over the mother’s time and money by forcing her to take extra time off and causing her expenses in travel and legal fees.

Children exposed to violence were also reported by their mothers to be violent with their peers. These behaviors and attitudes from the testimonies also show that IPV affect the school carrier, social abilities and relationships of the child:

This went so far that by third grade, my son, who had been a very good student before, became a tense child who had started to display the symptoms of a learning disorder. This is when the first report was made – a teacher notified the social worker that the child was very tense and nervous. (O.D.)

From our qualitative data we could show some insight into how authorities were reported to handle child custody cases in Hungary. Institutions were experienced as not taking into consideration the cases of IPV in relationships. The institutions were perceived by participants to be overloaded by parents’ accusations and reports ‘against each other’ and often handled the cases as ‘communication problems.’ Participants reported that the perpetrator often used abusive techniques against the authorities as well with handing in allegations against the institutions. Authorities were also reported to use threatening techniques against the mother, frightening her that her child can be taken to foster care if she did not agree on custodial cases with the father.

Discussion and Conclusion

This research described in this paper on child custody in Hungary, particularly in cases where visitation of a male parent is in contrary to the child’ physical or mental well-being and safety. We can conclude from the findings presented above, that custody and visitation rights may be used as a form of custodial violence and thus a continuation of IPV. Our qualitative data showed that in IPV related cases abusive fathers use child custody as a form of custodial violence and thus a continuation of IPV. Our finding also confirm that the legal institutions were not experienced as recognizing the significance of IPV in child custody cases but rather promoting visitation rights for the father, resulting in the violence remaining ‘invisible’ in many cases. Our interviewees mentioned that the institutions in most cases do not realize these aims of abusers and thus provide them with the opportunity to continue behaving abusively through exercising their visitation rights, or even through granting them custody, irrespective of the harm it causes.

In the absence of any previous research in Hungary about IPV-related child custody and visitation experiences, a mixed-methods approach to obtain a fuller picture of the mechanisms, the process, and the participants’ roles in this phenomenon was employed. This paper reports only on the qualitative interviews. Acknowledging that the sample is not intended to be representative in Hungary, the findings are nonetheless important and provide a window of understanding into this issue in this jurisdiction.

The need for tools which can effectively assess the level of risk and harm potentially caused by an abusive parent should be developed in Hungary as well. The interviews we conducted suggest a lack of recognition of this need by the public agencies in Hungary. However in Hungary data on domestic violence is more or less only accessible from police and prosecution materials but unfortunately no large-scale or representative research has been conducted on intimate partner violence in the last 20 years (Tóth 2018 ). With this paper we would like to draw the attention of practitioners to the phenomenon of post-separation contact related intimate partner violence cases with the emphasis of focusing on the situation of children. We would also like to make an attempt to call attention of practitioners of coercive control against children in the relation of post-separation contact with the prior history of domestic violence. The need for further studies and research on coercive control against children in Hungary is also apparent.

In line with previous literature, this study indicated a correlation between pre-separation IPV and post-separation abusive practices affecting children such as custody stalking (Elizabeth 2017 ), paper abuse (Miller and Smolter 2011 ), undermining maternal authority and the mother-child relationship (Bancroft and Silverman 2002 ). It also highlighted previous findings the children themselves can become targets of coercive control – an expression that does not even exist in Hungarian as yet – limiting their autonomy as well as their social, housing and emotional well-being and development (Stark 2007 ; Callaghen 2015 ; Katz 2016 ). The study’s findings reinforce that institutions may pay less attention to these abusive behaviours than they would necessitate in order for the mothers and children to be safe (Elizabeth et al. 2010 , Saunders 2017 , Heward-Belle 2017 ). Considering that this is a completely new research area in Hungary with no previous study with this focus, further research is needed to fully verify that in Hungary, as in other countries (Bancroft and Silverman 2002 ; Elizabeth 2017 ; Holt 2018 ; Hunter et al. 2018 ), a history of IPV is a most likely predictor of malevolent custody and contact litigation. The study also indicates that in order to provide better support to children and mothers harmed by continued post-separation abuse, the very concept of coercive control and custody stalking may be imperative to introduce within the Hungarian professional and research community.

This study also points to the need for practitioners in Hungary to include the investigation of pre-separation IPV, coercive control and custody stalking into professional language and guidelines. As none of these currently form a part of the regular training of practitioners coming to contact with victims, the potential practice initiatives may include first and foremost the creation of the necessary Hungarian expressions that are currently missing from the language to enable both victims and practitioners to describe the harmful behaviors and their effect. Developing specific training courses as well as protocols and guidelines based on the findings of this, and hopefully, future Hungarian research are potential further directions. While the link between IPV and abusive use of custody and visitation rights by violent ex-partners appear to exist, research into the gendered context of this abuse is extremely rare in Hungary. Thus, for example, research into whether and how gendered expectations by authorities towards mothers and fathers affect authorities’ decisions on what constitutes abuse, control, rights and obligations could provide a basis for possible further policy and practice recommendations as according to our result the visitation rights of the father was important and foremost even though sometimes it was obviously in contrary to the child’s safety and emotional, psychological well-being.

Acknowledgements

This research was made possible by a grant from AVON Hungary to NANE Women’s Rights Association.

Work of the first author has been supported by the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement No 648693)”.

Publisher’s Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

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India has seen severity in law enforcement from the early Vedic period . Even after almost 160 years of the enactment of the 1860 Indian Penal Code and the 1861 Indian Police Act, violence by the police continues. From the shocking Mathura Rape Case in police custody to the recent killing of Jayaraj and Bennix in Tamil Nadu by police officers, police brutality in India has existed in various forms since time immemorial. A number of pertinent instances have come to light this year, including the Uttar Pradesh Police’s violent actions against anti-Citizenship Amendment Act protests, and actions in furtherance of violation of lockdown restrictions against people as well as essential service providers. This highlights the extensive practice of police brutality in India.

This article will analyze the need for a presumption of custodial violence as a measure to confront the growing menace of police brutality. It will attempt to establish that, although police brutality does not operate in a complete legal vacuum, the aforesaid need crops up due to issues of implementation and enforcement.

Liability can be attributed to the police officials under public law, criminal law, and tort law. Article 21 of the Indian Constitution acts as a source of the public law liability of police officials, as laid down by the Supreme Court (SC) in the landmark judgments of Rudul Sah v. State of Bihar , Bhim Singh v. State of Jammu and Kashmir , and Nilabati Behara v. State of Orissa . However, to avoid misuse of such provisions, the SC has also laid down in Sube Singh v. State of Haryana that standard of proof for proving such police brutality is high, and only in cases of patent violation of fundamental rights can this remedy be availed.

Sections 197 and 132 of the Code of Criminal Procedure, 1973 (CrPC) protect public servants from vexatious litigation, as highlighted in the case of Jaysingh Wadhu Singh v. State of Maharashtra , provided that the accused police officer satisfactorily shows that the alleged crime had a direct nexus with the performance of an official duty. Since actions violative of the fundamental rights fall outside the course of official duties, the aforesaid provisions would not protect the official from actions against police brutality.

Finally, remedy for police misconduct is also available under tort law by filing a civil suit for compensation. However, sovereign immunity is often availed as a defense .

Although the aforesaid discussion highlights that police officials are not operating under a legal vacuum, there is no specific law catering to the prevention of custodial violence. Irrespective of the existence of laws governing police accountability, the issues concern the insufficient implementation of such provisions, coupled with a lack of sensitization. Reports suggest that police officers often misuse the legal framework by not permitting a complaint/FIR to be filed in the first instance. Moreover, police officials are not sufficiently trained to handle violent situations and challenges to their authority. With the Indian law granting extraordinary and discretionary powers of arrest to the police officials, sufficient sensitization about the extent and scope of such powers is also essential. Similarly, necessary and adequate sensitization of the Indian masses is essential to make them aware of their fundamental rights and the legal recourse available for them to take actions against authorities depriving them of such rights. The burden on the judiciary is also another disincentivizing factor for the masses, and a solution to the same also has to be worked out.

Irrespective of the availability of a legal framework, statistics highlight that from April 2017 to February 2018, 1,647 custodial deaths were recorded in India. This implies that five custodial deaths took place every day during this period. These staggering numbers highlight a blatant knot in the legal framework that needs to be untangled, thus, giving rise to the need for legislative reform.

In the landmark case of State of Uttar Pradesh v. Ram Sagar Yadav, the SC recommended an amendment to the evidence law to place the burden of proof on police in cases of custodial violence. Consequentially, the Law Commission of India gave its report on similar lines. Further, the Indian Evidence (Amendment) Bill, 2016 , passed by the Lok Sabha to introduce the “Presumption in prosecution of custodian death or injury” in the form of Section 114B of the Indian Evidence Act, has not yet been approved by the Rajya Sabha. The bill gave due regard to essential factors including the period of custody, any admissible statement by the victim on the cause of injury, evidence of the medical practitioner, and evidence of the magistrate, who might have a record of the victim’s statement.

An amendment in furtherance of the same would be a welcome move, owing to the rising custodial deaths and the approach of the police officials towards the present legal framework. There have been various instances, as aforementioned, when police officials attempt to bypass the safeguards and misuse the powers vested in them. While the SC directed the police stations to be under CCTV surveillance to ensure the minimization of such activities, police officials have also attempted to tamper with this evidence by switching off cameras . By having a presumption in place, an attempt to curb such incidents can be made because of the added pressure on the police.

It must not be forgotten that the ethos of the democratic Indian society is that the law enforcement agencies are for the benefit of the people and not vice versa. It is imperative to subside the growing tensions between the need for safeguards by the police and from the police. Both order and liberty are essential, and when this balance is displaced, a need for legislative intervention arises. To resolve this growing crisis and to bring the population to par with the police officials with respect to the power and knowledge that they wield, sufficient sensitization of both the police as well as the people, coupled with the need for a presumption of custodial violence, is crucial.

Winy Daigavane is a fourth-year B.A. LLB. (Hons.) Student at the National University of Advanced Legal Studies, Kochi India.

Suggested citation: Winy Daigavane, Presumption of Custodial Violence: A Need to Confront Police Brutality in India with Legislation, JURIST – Student Commentary, July 13, 2020, https://www.jurist.org/commentary/2020/07/winy-daigavane-custodial-violence/.

This article was prepared for publication by Cassandra Maas , a JURIST staff editor. Please direct any questions or comments to her at [email protected]

Chemical Weapons Convention goes into force

On April 29, 1997, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction went into force. The Convention prohibits member nations from creating and deploying chemical weapons and is overseen by the Organisation for the Prohibition of Chemical Weapons .

Oliver Ellsworth born

Oliver Ellsworth, third Chief Justice of the United States and primary author of the Judiciary Act of 1789 that established the federal court system, was born in Windsor, Connecticut, on April 29, 1745. Learn more about Oliver Ellsworth.

National Campaign Against Torture

Custodial Death & Torture a Human Rights abuse: Indian and International perspective, Latest Laws

Latest Laws 24 July 2020

By By : Vidisha Singh

“Custodial torture is universally held as one of the cruelest forms of human rights abuse. The Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and the United Nations forbid it. But the police across the country defy these institutions. Therefore, there is a need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach.” [1]

INTRODUCTION

The advent of Custodial death and torture has peaked in its crisis, as reported by the National Campaign Against Torture, which states that 1,731 persons died in custody in the year 2019 alone, estimating 5 deaths every day of the year. These constituted 1,606 deaths in judicial custody and 117 deaths in police custody in total. [2]

The problem of death and torture in custody, already in much prevalence in most states dated back several years has been recently grievously highlighted in the case of P.Jayaraj and J.Benix, both inhabitants of Santhankulam in Tuticorin, in the state of Tamil Nadu, the father – son duo were arrested and held in custody under the accusation of keeping their shop open during the imposed mandatory curfew hours. They were later both seen with marks indicating heinous   torture and sexual assault, and soon succumbed to their injuries in a local government hospital. The news of the manner of their subsequent death has shook the nation and left its citizens aghast and generally distrustful of the uniform made to serve and protect them.

The flagrant abuse of law and authority by the police is not a curious subject as police are normally expected to use violence to counter crimes, there is an egregious presumption of police officers bound to use counter violence to incapacitate criminals so to prevent them from further harming innocent citizens, this presumption has led to a festering decay of the code of conduct among officers leading many to commit terrible breaches of such authority to assert their dominance over the public.

This show of ‘quick justice’ as demonstrated by the police, a civil force of state vested with authority and responsibility to commit order in society by the people themselves, ruins the pillars made to support social order and justice in our society. This gives an undue impression of courts and lawyers as mere accessories and gives the power of penalizing and imparting justice to unauthorized vigilantes.

In the ongoing trend of custodial violence being used to extract information or confessions there have been several number of torture methods the police would use, freely on men, women, and children alike breaking several laws and non-observance of fundamental human rights. This paper intends to analyze the role of such methods used by police personnel notwithstanding the necessary police reforms already in place or needed.

An important articulation of the subject matter has been seen in a judgement in which the Supreme Court observed,

“Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society.”  [DK Basu v. State of Bengal (1991) 1 SCC 416]

• To examine the history of police brutality, death under custody;
• To inquire into which sections of society are vulnerable to illegal detention and abuse;
• To identify violation of human rights in police custody using relevant statistics;
• To explore foul play, legal loopholes and impunity enjoyed by the police in such cases.

Research methodology

The research for this paper has been conducted through secondary sources of information such as newspaper articles, books, reports etc.

Earlier reports of custodial death and torture in India

In pre–independence India, Under the Regulation of 1816 police officers were authorized under all revenue functionaries and routinely involved with revenue collectors for extortion of         revenue and delay in payment of taxes. The testimonies and evidence of torture were so many               and so serious that it was discussed in the British House of Commons as well, thus, establishing the Torture Commission of 1855. The commission found conclusively that “personal violence practiced by the native revenue and police officials generally prevails throughout the     Presidency, both in the collection of revenue and in police cases.” They also held that the law and order administration in the province was in a bad shape. The remedies they suggested included a “moral agency” (European) at appropriate levels, separation of the judiciary from the executive and, more importantly, that of the police from the revenue. The commission went on to suggest major reforms in the organisation of the police as an independent agency. [3]  These reforms were the first of its kind on the subject.

The Law Commission Report of 1985 cited the case of  State of U.P v. Ram Sagar Yadav [AIR 1985 S.C. 416]  wherein a farmer, falsely accused of cattle trespass by his neighbor over a dispute, was allegedly threatened for bribes by the concerned police officer, who then, at first, relented but then reported this incident to the police station which as a response appointed another officer to inquire into the farmers allegation against the officer. The police officer in charge of the enquiry arrested the farmer and tortured him severely, within 6 hours of the registering of the initial case the farmer then succumbed to his injuries and died. This matter was then taken up to the Apex court which then acknowledged the advent of custodial death and torture as well as the indemnity enjoyed by police officials, saying,

 “Police officers alone and none else can give evidence regarding the circumstances in which a person in their custody comes to receive injuries. Bound by the ties of brotherhood, they often prefer to remain silent in such situations and when they choose to speak, they put their own gloss upon facts and pervert the truth”.

According to a previous Amnesty Report of 1992, approximately 415 people died in the custody of police and security forces due to torture between 1 st  January 1985 to 1 st  November 1991. In all these 415 cases, the detainees including women and children, were beaten and tortured till they died. The report also states that laws pertaining to this phenomenon are commonly flouted, specifically section 176 of the Code of Criminal procedure which makes an investigation by a magistrate obligatory in all cases of deaths in police custody. Thus, in all 415 cases of custodial death between 1985 to 1991, only 42 magisterial enquiries and 20 judicial enquiries were conducted.  [4]

The Nation Crime Records Bureau has recorded 591 cases of death in police/judicial custody between 2010 and 2015, with the reasons of death commonly cited as suicide, death during hospitalization or natural death/illness. Between 2016 and 2018 reports by NCRB 265 deaths were recorded with 0 convictions by the state. [5]

The Law Commission Report of 1985 strictly citing the Apex Court’s verdict in the case of  State of Up v. Ram Sagar Yadav   [AIR 1985 S.C. 416] , suggested changes to the Indian Evidence Act, 1872 pertaining to section 114 of the act. As said in the report on the dire need of reform,

“The general principles deductible from the sections of the evidence act, 1872, is that it is for the prosecution to prove the essential elements of the offence charged and if those essential elements are proved, it is for the accused to prove that the case falls within the general or special exceptions to the criminal liability recognized by the criminal law. In certain special situations, this position does undergo modifications. For e.g., where a particular fact is within the special knowledge of a person it is for him to prove it. As the law stands at present however, there is no special provision as to the burden of proof where the injuries were received by a person in police custody.” [6]

In the working paper provided by the commission in response to this social concern, a broad outline of a provision which has still yet not been inserted in the Evidence Act of 1872, as section 114B was put forth stating,

“Section 114B (1) In a prosecution (of a police officer) for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that that person in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period.”

The government itself had acknowledged in Rajya Sabha   that 46 persons had already died in police custody due to torture within 3 months, i.e., January – March 1993 in Delhi alone [7] . This situation gives a glaring effect on the situation in tribal and minority communities far from the capital.

Torture: Definition and Practices

Torture (from Latin tortus: to twist, to torment) is the act of deliberately inflicting severe physical or psychological suffering on someone by another as a punishment or in order to fulfill some desire of the torturer or force some action from the victim. [8]  The purpose of torture is not just severe trauma but a deliberate and systematic dismantling of a person’s identity and humanity through physical or psychological pain and suffering. [9]

Usage of torture by law enforcement personnel for aiding in solving cases are a routine practice which come under other titles such as “questioning”, “sustained interrogations”, “extra judicial executions” etc. however these practices by the police exhibit various tendencies of going overboard with such third-degree techniques. NCAT recorded that torture methods used by the police also included hammering iron nails in the body (victims: Gufran Alam and Taslim Ansari of Bihar), applying roller on legs and burning (victim: Rizwan Asad Pandit of Jammu & Kashmir), ‘falanga’ wherein the soles of the feet are beaten (victim: Rajkumar of Kerala), stretching legs apart in opposite side (victim: Rajkumar of Kerala), hitting in private parts (victims: Brijpal Maurya and Lina Narjinari of Haryana), stabbing with screwdriver (victim: Pradeep Tomar of Uttar Pradesh), electric shock (victims: Yadav Lal Prasad of Punjab; Monu of Uttar Pradesh), etc.

Causes assumed for using torture for law enforcement

This information was provided by police officers in an interview on the condition of anonymity and answers are limited to their perspective:

• Inadequate strength of police forces compared to increase in rate of crime. Their task is overwhelming which goes far beyond the duties of enforcing law and controlling crimes. They hardly find adequate time for proper investigation and detection of crime so the adoption of third-degree techniques become inevitable.
• Hardened and professional criminals understand the language of violence only. Third degree methods are the only way to acquire any information from them.
• There is no harm in using violence (apathy) against criminals like dacoits, terrorists and arsonists as they do the same to others in society.
• Apathy with respect to their rights due to the nature of their crimes and their backgrounds.
• The legal procedure is very complicated and always in favor of criminals. The police has to work under heavy legal odds. They have to establish the crime in the court beyond doubt. This leads to solving of the case “by any means”.
• Presence of virtually no facility for scientific investigation and detection of crimes in most police stations. Also leaving no choice but to use third degree methods.
• People want the police to prevent and control crime but are unwilling to cooperate. They seldom give witness against the criminals. So the police has to elicit information about the crime from the criminal concerned which is seldom voluntary.
• People expect the police to give corporal punishments to the criminals as an act of “teaching them a lesson”.  [10]

Apart from these, other influential causes are colonial era use of violence, the media in exaggerating crimes sparking public demand and political pressure of the mistreatment and encounters of criminals and apathy of the executive branches towards such cases.

Most vulnerable sections to custodial torture and death:

The most vulnerable groups in society are the poor and marginalized. Unfortunately, this applies to the majority of the cases of the death and torture in police custody as well.

The NCAT report states this as a fact, saying SC’s (Scheduled Castes) and ST’s (Scheduled Tribes) face caste/ethnic based violence by the police/security forces as well as by the upper caste/general category people, that majority of the victims of police torture belonged to the poor and marginalised sections of the society who are often the soft targets because of their socio-economic status. The NCRB has registered 42,793 cases of crimes against SCs in 2018 over 43,203 cases in 2017, however several cases against SC’s and ST’s go unreported as well.

NCAT documented 13 cases of death of Dalit and tribal people in police custody during 2019. These included eight tribals and five Dalits. Out of the deaths of 125 persons in 124 cases of deaths in police custody documented by NCAT in 2019, 75 persons or 60% belonged to the poor and marginalised communities. These included 13 victims from Dalit and tribal communities, 15 victims belonged to Muslim minority community, 37 victims were picked up for petty crimes which indicate their economic status, three were farmers, one was laborer, one was a refugee, two were security guards, one was a rag-picker and two worked as drivers.

These communities are usually provided no adequate aid either, owing to their weak financial status and illiteracy or ignorance of pursuing legal remedies. Thus, it’s safe to assume that though painted necessary for crimes in big cities, the resulting echo of these malpractices severely impact the safety and dignity of the vulnerable as well.

Women and children in custody:

The treatment of women and children in custody is no less concerning, women in police custody always have the threat of rape and sexual assault along with other forms of physical torture, not only from police officials but also male inmates, and even more so if they are of lower caste or economically disadvantaged. For example, from 3 rd  to 7 th  July 2019, a 35-year-old Dalit woman was allegedly illegally detained, subjected to torture and was raped in police custody by nine police personnel at Sardarshahar police station in Churu district, Rajasthan. Beside custodial rape, the victim was also allegedly subjected to torture including plucking of her nails.  [11]

In response to this the Criminal Law Act, 2013 of the IPC provides a ground for punishment in case of rape/molestation by a police officer wherein whoever,

• Being a police officer, commits rape-
• Within the limits of a police station to which the police officer is appointed; or
• In the premises of any station house; or
• On a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
• Being a public servant, commits rape on a woman in such public servants custody or in the custody of a public servant subordinate to such public servant;

m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; shall be punished with rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall imprisonment of the persons natural life, and shall also be liable to fine. [12]

Even with such provisions in place, women in these vulnerable conditions are usually forced to live with the trauma and continue on with their lives as they see no hope or way in pursuing legal action against the men in uniform. These conditions further aggravate the despair of sexual violence against women in the country even more so when the perpetrators are those in uniform and under oath. Unfortunately, they are no such remedies for the cases which go unreported.

Children are also next in line to be victims of grave torture in custody especially due to the lack of implementation of the Juvenile Justice (Care and Protection of children) Act, 2000. This usually results in several juveniles being illegally detained and tortured. The NCRB in its annual report of 2018 also reported 3,164 cases of simple and grievous hurt against children by the police on 3,467 minors. This is a shocking fact considering children who have not yet been developed to the capacity of adults still have had to experience such a traumatic and life changing thing by the very ones who should do the most to protect them in lieu of the future of our nation.

Lack of intervention by legislature and Impunity of the police:

There exist several regulations and code of conducts to demand accountability and proper use of authority by the police, however, that can only be called naïve considering a great long culture in the police authorities to use and ignore those laws which are convenient to them or their case with no one to question them.

Under the Criminal Law (Amendment) Act, 2018,

• When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
• in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
• in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. [13]

This means that no police officer or public servant can be arrested for any criminal activity he/she be accused of doing while they are assumed to be acting out their duty, without a sanction of the central or state government.

Similarly, in the NCRB report of 2018, while there were 70 deaths recorded in police custody across the country, none however were convicted.

This can also be attributed to the lack of judicial and magisterial enquiries against the deaths portrayed by the dismal statistics by the NCRB report while the total cases od death were 70 in 2018, only 27 judicial enquiries were conducted. While in 2019, only 5 out of 11 cases were magisterial inquiries conducted.

There are several cases of custodial death wherein the corpses of the victims are incinerated before families were allowed to see the corpse, and the police tamper or dispose of all remaining evidence before any substantial case or FIR can be filed against them or their subordinates. It is an evil that’s been rotting the system for several years and has only seem to have gotten worse.

Observations, suggestions and solutions:

• Ratification of the ‘UN convention against torture’. This convention was signed by India in 1997 but never ratified. No official law has been passed by the legislation on Anti – torture or police reforms concerning custodial deaths despite the frequency of such acts for so long as well as several suggestions and concerns shown by the NHRC and the Apex court. The sustained apathy of the legislature can be interpreted as a quite observance to such practices, thus making it harder for any likelihood of ratification happening in the future either.
• The various suggestions made by the Apex court in judgements like  DK Basu v. State of Bengal   [14] must be enforced and any default by reluctance or ignorance of any police station or public authority should be strictly penalized. Some mainly include:
• All police officers should wear their name tags clearly indicating their name and designation.
• Police must enter the complete details of police officers conducting investigation in a register.
• The arrested person has the right that his/her relative/friend is informed about the arrest.
• The police must contact and inform the relative/friend of the time and place of arrest, and the exact location where the arrested person is detained.
• Implementation of section 114B  [15] mentioned in the law commission report 1985 which raises the notion of holding the officers accountable or with criminal culpability if anyone is found tortured or dead in their custody.
• Though torture is completely normalized in custody for extracting confessions, legally, suspects have the right to withhold any self-incriminatory information or evidence that can be used against them. This is under the presumption of innocent until proven guilty.

In India, Article 20(3) dictates:

• No person accused of any offence shall be compelled to be a witness against himself. The privilege against self-incrimination is a fundamental canon of criminal law jurisprudence. The characteristics of these provisions are,
• That the accused is presumed to be innocent,
• That it is for the prosecution to establish his guilt,
• That the accused need not make any statement against himself.

Nandini Satpathey v. P.L Dani   [16]  also holds that these rights extends to witness and accused alike, and that they must be formally accused in the present and not the future. This applies to every stage in which furnishing of such information and collection takes place. However, implementation of this law has been lackluster in the justice system, as it is subject to constant violations by police and law enforcement authorities. This is owed to the police’s impunity and apathy towards both the judicial system and moral obligations towards rights of the detainees or criminals, and necessary changes must be implemented.

• Public awareness of protections such as Article 39 – A of the constitution which providing free legal aid to the poor or disadvantaged sections of society so the provision of justice can be extended to all citizen despite economic or educational hindrances.

Proper implementation of the D.K Basu judgement as well as greater public awareness of certain rights and provision of citizens and detainees will compel the police to pursue other far more productive methods than third degree methods. Similarly, another recommendation can be the presence of a lawyer during the interrogation by the police with the interest of protecting the accused’s rights.

• Immediate amendment and reform of the “Police act of 1861” which contains several provisions that enable violation of rights by the hands of police officers. This act born in the era of pre independence was made only to hold the lives of our countrymen on a leash, it contains several loopholes wherein the police get away with lesser consequences compared to the gravity of the crimes they have enabled over and over.

The fact that this act exists to this day is a gross indignation of our people’s rights and must be amended promptly.

• Also, the recommendations in the 117 th  law commission report by the 16 th  law commission recommends appropriate amendments in the Code of Criminal Procedure which makes police officers responsible of assuring the safety of the accused in custody and making them aware of their rights while they remain in custody [17] .
• The last suggestion is the need for the codification of the rights of the arrested persons as mentioned in The Malimath committee report. [18]

Conclusion:

Police are the safeguards in society which keep its morals and foundations intact and functioning as we go towards progress and development. They are an indisputable necessity to maintain order in society, but when such outfits of justice themselves cannot keep themselves away from violating the public’s fundamental rights, the authority given to promote such justice is annulled.

The very idea of custody is protection or guardianship even when applying it to arrests and incarcerations. The law is a continuous and omnipresent process and system which is permanent, yet always changes according to the needs and progress of society. As such, law enforcement authorities should be held accountable to their crimes and further training and sensitization must be provided on the basis of science and sound morals so to promote legal principles amongst our officers and the public.

[1]  [Joginder Kumar v. Uttar Pradesh (1994) 4 SCC 26].

[2]  National Campaign Against Torture : Annual report on torture 2019

[3]  P. Jegatheesan, Law and Order in Madras Presidencey, 1850-1880 (1987)

[4]  https://www.amnesty.org/download/Documents/192000/asa200061992en.pdf

[5]  https://ncrb.gov.in/hi

[6]  113 th  report of The law commission of India on “Injuries in police custody – suggested section 114B, Evidence Act.” Dated 29 th  July, 1985

[7]  The Hindustan Times

[8]  https://en.wikipedia.org/wiki/Torture#cite_note-1

[9]  https://healtorture.org/faqs/what-torture

[10]  Saini, R. (1994). CUSTODIAL TORTURE IN LAW AND PRACTICE WITH REFERENCE TO INDIA. Journal of the Indian Law Institute, 36(2), 166-192. Retrieved July 20, 2020, from www.jstor.org/stable/43951530

[11]  Rajasthan: Dalit Woman Gang Raped in Police Custody, The Wire, 16 July 2019, https://thewire.in/rights/rajasthan-dalitwoman- gang-rape-police-custody

[12]  S. 376 (2)

[13]  S. 197 (1)

[14]  (1997 (1) SCC 416)

[15]  Indian Evidence Act, 1872

[16]  AIR 1978 SC 1025

[17]  117 th  law commission report of India on “Law relating to arrest” dated December 14, 2001.

[18]  Malimath Committee Report, Volume I, Para 7.26.8-7.26.9

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A Human Rights Perspective On Custodial Violence And How The Lives Of SC/ST Do Not Matter

• The Standard Minimum Rules for the Treatment of Prisoners adopted by the First UN Congress on the Prevention of Crime and Treatment of Offenders held at Geneva in 1955, have dealt with the provisions which provides for humane treatment of the prisoners by considering them as part of the society.
• The Draft Principles on Freedom from Arbitrary Arrest, Detention and Exile 1963, Article 10, 22(2), 24 and 26.
• Declaration on the Protection of All Persons from being subjected to Torture and other Cruel Inhuman or Degrading Treatment or Punishment, 1975.
• International Covenant on Civil & Political Rights, 1976, Articles 6(1), 7,9,10 and 14-16.
• Optional Protocol to the International Covenant on Civil & Political Rights, 1976, Articles 2-5.
• Code of Conduct for Law Enforcement Officials, 1979, Articles 2-3 and 5-6.
• Convention against Torture and Other cruel, Inhuman or Degrading Treatment on Punishment, 1987.
• Right to Life under Article 21.
• Right against Self-incrimination under Article 20(3), sections 24,26 and 27 of the Indian Evidence Act and sections 162,163(1),315 and 342(a) in Criminal Procedure Code.
• Right to be informed of the ground of arrest under Article 22(1).
• Right to consult a legal practitioner under Article 22(1).
• Right to be produced before the Magistrate within 24 hours of arrest under Article 22(2).
• Bar against handcuffing, has been included in the Punjab Police Manual 1953.
• To establish effective implementation of the Criminal Justice System to deal with or prosecute violators of the Human Rights of the vulnerable sections of the society
• To control, remove, regulate or reduce future violations of custodial torture against SC/ST.
• Effective implementation of various provisions of international conventions related to custodial torture.
• R.S.Saini, Custodial Torture in Law & Practice With Reference To India , Journal of the Indian Law Institute, Vol. 36, No.2, 1994, pp. 166-192. The article stressed upon the concept of torture with reference to the definition adopted by the Convention against torture by UN General Assembly. Having this definition as the base, the article goes on to an analysis of custodial torture as a problem, which focuses on analysing whether the grounds used by the police officials could be used to justify the issue when national security confronts with the human rights. The article further critically analyses the role of the police, as upholder or violator of law. It also elaborates the rights of the suspects or accused persons in the light of international law and Indian law. To showcase the gravity of the issue, the author has also conducted an elaborate study on the vulnerable section who has been the victim of the custodial violence in India since time immemorial. The Article also elaborated upon the role of SC with reference to an array of case laws and have stressed on the compensation awarded by it in several cases. To conclude, the author highlighted few practical suggestions that can be adopted to curb the menace effectively.  
• A.G. Noorani, Access to Prisons & Custodial Torture , Economic & Political Weekly, Vol.40, No. 42, 2005, pp 4497-4498. The article stresses upon the lack of effectiveness of the judgments of courts in cases of Custodial Violence. The author criticizes the Apex Court decisions stating that, the 113rd Report of Law Commission recommended suitable amendments to Indian Evidence Act of 1872 that would place onus of proof on the culpable police officials. However, the Apex Court in order to ensure humane treatment of prisoners in custody, it had to simply adopt an earlier ruling of 1982 that had allowed access to convicted prisoner in jail so that the society would apply the reasons behind their detention and conditions in which they serve their sentence. In order to arrive at an analysis, the author relied on various landmark judgments as well as several important Articles of Constitution of India, provisions of CrPC, IPC and Indian Evidence Act and concluded it with the recommendations to curb the issue.  
• Clemens Arzt, Police Reform & Preventive Powers of Police in India: Observations on an Unnoticed Problem , Law & Politics in Africa, Asia & Latin America, Vol. 49, No.1, 2016, pp 53-79. In this essay, the author dealt with 'preventive' powers of police in criminal procedure. The author elaborately examined the right of the police to interfere with the constitutional and human rights, relying on several landmark Supreme Court decisions to show case the realities of policing in India.  
• Jitendra Mishra, Custodial Atrocities, Human Rights and the Judiciary , Journal of Indian Law Institute, Vol. 47, No.4, 2005, pp 508-521. The article elaborately examined the problem of custodial atrocities with its brief history, causes of custodial atrocities and the safeguards provided for under national and international instruments and finally, assessed the role of the judiciary in this regard.  
• Nirman Arora, Custodial Torture in Police Stations in India: A Radical Assessment , Journal of Indian Law Institute, Vol. 41, No. �, 1999, pp 513-529. The article provided a kaleidoscopic study of various aspects of custodial torture in police station and have highlighted some of the basic problems which created dilemma for the Indian Police as a service organisation besides discussing the increasing National and International concern over torture.  
• K.S.Subramanian, Political Violence & the Police in India , 2007, Sage Publication India Pvt Ltd. The book focuses on the forms of Political Violence in India. The book begins with a chapter on political violence and the State response in India. It includes a chapter which focuses on the crises in Indian Police System which have been analysed in the light of its colonial origin. The author also highlighted the violence inflicted against the SC/ST populations, with the help of statistics and the landmark judgments and observations of the Apex Court, mentions about the police violence also with the help of study conducted by NHRC.  
• Jinee Lokaneeta, Defining an Absence: Torture Debate in India, Economic and Political Weekly, Vol. 49 No. 26/27, 2014 pp. 69-76. The article focussed on the absence of a torture 'debate' in India and is striking when considered in relation to the NHRC's statistics on custodial deaths. The paper also articulated some of the theoretical framings that allowed for denial of torture to take place in India despite the evidence of high levels of custodial deaths and torture.  
• Hithesh Sanker T S & Praveen Lal, Custody Death in Kerala: A Study from Post-mortem Data in Thrissur Medical College , Economic & Political Weekly, Vol. 47 No. 12, 2012, pp 23-26. The article attempted to point out the magnitude of the problem of Custodial Violence by focussing on various reports and observed that the nature of deaths have not been discussed in any of the reports. The author studied 23 autopsies related to custodial deaths and further analysed it in the light of the statistics of NHRC and landmark judgments of the Supreme Court.  
• 152nd Law Commission Report on Custodial Crime, 1994. The Report dealt with custodial crimes with issues of arrest and abuse of authority by officials and made reference to all constitutional and statutory provisions including Ar. 20, 21 and 22. The Commission also took into consideration the provisions of IPC, 1860, sections of CrPC as well as Evidence Act. The Commission in this report also provided for amendment of these Statutes.  
• 273rd Law Commission Report, 2017. In this Report, the Law Commission proposed an amendment to the existing statutes to make the intent of abolition of torture in Prevention of Torture Bill, meaningful. The Commission recommended stringent punishment to the perpetrators of such acts to have a deterrent effect on the acts of torture. The Report further dealt with the crucial issue of compensation of victims of torture, and has left it to the Courts to decide upon the justiciable compensation after taking into account various facets of individual case. It also recommended establishment of an effective mechanism to promote victims of torture.
• Why is there a huge rise in the custodial violence in India, especially with respect to the SC/ST Communities, irrespective of the existence of various provisions, both at national and international level?
• Does the criminal justice system lacks effectiveness with respect to curbing Custodial Violence?
• What could be the plausible solutions to curb the menace of Custodial Violence?
• A transparent prison system can bring a check to the abuse of power, thereby upholding the basic principles that govern the human rights of the people in custody.
• The ratification of the UN Convention against Torture can bring about a legislation for India, exclusively to deal with the matters of custodial violence.
• An efficient implementation of the existing criminal laws by ensuring adequate measures laid down by the judiciary by way of judicial activism, with respect to arrest and detention.
• Formulating guidelines on educating and training officials to bring about police reform.
• The first chapter would deal with the introduction of the entire topic and would go and identify the research problem and existing legal scenario of the same.
• The second chapter would be descriptive which would introduce the concept of Custodial Violence in detail by tracing its historical roots.
• The third chapter would discuss the existing National laws that govern the Custodial Violence today. This chapter would also discuss the lacunas in the laws governing Custodial Violence and the challenges associated by it.
• The fourth chapter would exhaustively analyse the role of Judiciary in the form of Judicial Activism and its effects on the issue.
• The final chapter would throw light on the current trends in the Custodial Violence with special emphasis on the causes of on the lives of SC/ST Community with the aid of certain case studies.
• The concluding chapter would sum up the entire discussion in the chapters above and would contain certain possible recommendations for resolving the issues and challenges in the laws governing the Custodial Violence with special reference to SC ST community.

Concept Of Custodial Violence

Historical aspect of custodial violence in india, national laws governing custodial violence in india.

• Right to Life: One of the basic and fundamental right of the prisoner/suspect/accused persons is the right to life. It is conferred by Article 21 of the Constitution of India. The Article lays down that a person cannot be deprived of his life and personal liberty unless there exists a law, which is enacted by a competent authority that lays down a specific procedure for such deprivation. The Supreme Court in Maneka Gandhi v. UOI [3] had held that, procedure which is contemplated under Article 21 must be right, just and fair and not arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied[4]. The ' Right to Life ' concept under Article 21 has undergone a wide range of interpretations over the time. In Kharak Singh case[5], the Apex Court held that, the term 'life' do not mean mere animal existence, but a right to the possession of each organ of the body. Therefore, this includes every limb or faculty through which life is enjoyed, is protected under Article 21, which not only takes into consideration the physical state but also, the mental state or the state of mind. The Supreme Court has further come up with interpreting 'life' to be more than just physical survival[6]. Thus, the Apex Court was keen in providing a wider interpretation of the term to include all the basic necessities of life for a person, so that it is not been deprived of by any, in any circumstances. The accused/prisoner/suspect have therefore enshrined with the Fundamental Right of life which act as an armour against the brutality of officials, although the same has not been expressly mentioned. Apart from being the fundamental right, the accused receives protection against the Custodial Violence, treating it as an offence under the IPC, CrPC and Code of Conduct of Police. The Indian Penal Code has treated Custodial torture as an offence which is punishable with 10 years of imprisonment.[7] It has also provided for a maximum of death penalty for custody murder, which shows the gravity of the offence and the intent of the legislature in protecting the Human Rights of the accused. The Police Act, 1861 has also considered custodial violence as a punishable offence.[8] In addition to it, various other State Police Acts have entrusted the task of keeping safe custody of suspects from assault, like the Bombay Police Act, 1951[9], Calcutta Police Act, 1866[10], Mysore Police Act, 1908[11] and Travancore-Cochin Police Act, 1951[12] are some of them.  
• Right against self-incrimination: The focal point of custodial violence against the accused exists in the interrogation, to extract confession from the suspect for the crime he is alleged to have committed. This has been done so that he confesses the truth. However, the accused has been entrusted with the Fundamental Right to refuse to answer all self-incriminatory questions, under Article 20(3) of the Constitution of India. It is his right, not to be compelled to be a witness against himself. The Indian Evidence Act[13] and CrPC[14] have also prohibited forced confession and declared them as inadmissible in the Court of Law, thereby protecting the suspect/accused person against confession. The criminal legislation has taken appropriate measures in protecting such rights of the accused by upholding the general criminal jurisprudence that, 'the accused shall be presumed to be innocent till his guilt is proved in the court of law'. Section 162 of CrPC declares that, 'no statement made by any person to a police officer in course of an investigation' shall be used 'for any purpose' barring a few exceptions.  
• Right to be informed of the ground for arrest: The accused is entrusted with the Fundamental Right to be informed on the ground of arrest, in spite of being arrested with or without warrant, under Article 22(1) of Constitution of India. With respect to it, the Supreme Court have also opined that the authorities need not furnish the full details of the alleged offence, but rather, should inform the accused on why he has been arrested. This can prevent the abuse of power by the authorities on the arrest and the further scope of inflicting violence against the accused. The CrPC, under Section 50(1) provides that, 'every police officer or person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Based on the decision of the Supreme Court in Joginder Kumar v. State of UP[15] and DK Basu v. State of West Bengal [16], Section 50A of CrPC has been amended to make it obligatory for the police officer who make an arrest to inform the friend, relative or any nominated person of the arrested person about his arrest, inform arrested person of his rights and make an entry in the register maintained by the police.  
• Right to consult legal practitioner: The accused has been entrusted with the Fundamental Right that, 'No person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice'. This fundamental right have been enshrined under Article 22(1) of the Constitution of India. The right has been interpreted and upheld by the Apex Court several a time to ensure that, there exists no scope for the accused to be left unheard and that his human rights are not denied. The Court also held that, while undergoing interrogation in police custody he has right to have his lawyer by his side. Although Part III of the Constitution of India does not provide for free legal aid to the accused, the Directive Principles of State Policy has required the State to provide free legal aid by suitable legislation or schemes[17], so that opportunities for serving justice is not denied to any citizen.  
• Right to be produced before the Magistrate within 24 hours of arrest. The right to be produced before the Magistrate within 24 hours of arrest have been granted as Fundamental Rights under Article 22(2) of COI, and therefore, is considered to be a valuable right of the arrested person. In the CrPC, it requires the police to produce the suspect/accused person before the Magistrate within 24 hours of his arrest, as per section 57 along with 167. The Magistrate in such case, can order release on bail or remand to the police custody to facilitate further investigation of the case. The maximum period for police remand is 15 days, which states that, the detention beyond 24 hours without producing him before the Magistrate would be illegal. This provision has been formulated with the intent to ensure that the authorities would not arbitrarily keep the accused person in custody and thus avoid room for further abuse of power. The question of the period of detention have been dealt with by Section 57 of CrPC.  
• Suitable identification of all officials in person, at the time of arrest.
• Preparation of arrest memo, attested by a family member of the accused.
• Recording injuries of the accused in the inspection memo, if requested by the accused and signing it by both parties.
• Providing all the details with respect to the arrest such as time and place of arrest.
• Intimation of the location of arrest to the family members of the accused and all details to any nearby legal aid centre.
• Maintenance of daily diary in the police station and procedure of its maintenance.
• Medical examination of the arrestee, every 28 hours after arrest, by a trained doctor.
• Right of the arrestee to meet and consult lawyers.
• Mandatorily send copies of all relevant documents to a local Magistrate by the police.
• Setting up of police control rooms where all such information would be properly preserved.
• Whether the violation of Article 21 of the Constitution of India was potent and incontrovertible
• Whether the violation was gross and of a magnitude to shock the conscience of the court.
• Whether the custodial torture alleged resulted in death or whether it be supported by medical report or visible marks or scars or disability.

Analysing The Trend Of Custodial Violence In The Lives Of Sc /St Community

Women as the victim of custodial violence.

• Proper education and training The present situation demands that the change must happen from the roots of the problem without which such acts could not be made within the control. Therefore, the amendment should be initiated right from the selection of candidates to be appointed as police officials. The system should be devised in such a way that, the right type of candidates have to be selected. The personality traits and behaviour of the candidates should be assessed to ensure that, there exists compassion towards other people, so that they can be the protectors of the rights of the people. The training of the officials should be imparted in such a way that, it creates and motivates them to inculcate a sense of service within them to be offered to the people in accordance to the rule of law, to bring about a police reform.  
• Use of scientific methods for investigation The Custodial Violence are often being inflicted upon in situations where the police officers are forced to find solution to a particular case in front of them. For it, they use the method of torture in order to extract confession from the accused. In order to curb this issue, there is a need to have more scientific methods for investigating which would prevent them from using the violence as a means, when overburdened the trained officials would delegate their work to the untrained subordinates who resort to the practice of third degree measure as they aim to solve the case as early as possible due to the pressure from the officials. Therefore, the supervisory rank can help in a large measure by avoiding hasty criticism of investigation done by the subordinate police officers and desisting from pressurising them to "solve" the cases somehow or the other. They should try to convince their subordinate staff that the scientific methods of detention and interrogation are more effective than the traditional third degree method of torture. The police should therefore be encouraged to use scientific methods such as forensic laboratories, computer databases etc. Schemes which would provide financial assistance to the police to improve communication, computer, forensic science equipment and other scientific aids of investigation, in order to modernise the police force.  
• Amendment of the Evidence Act As recommended by the 113th Law Commission, there should be amendment of section 114B of the Evidence Act. This is essential because, in case of custodial torture, the only witness that could narrate the incident would be the police officials and since they owe to the brotherhood, in most of the instances would not go against their colleagues and so much of such custodial torture or death cases are being tampered by the police officials. Thus, the Law Commission have rightly proposed that the Evidence Act should be amended by creating a new section 114B to provide a rebuttable presumption that the injuries sustained by a person in police custody has been caused by the police officer-in-charge. The burden of proving the innocence will be on the shoulders of the police personnel. Once implemented, it will prompt the police to treat the suspects/accused persons in their custody more humanely and more in accordance with law.  
• Adequate protective measures during arrest: In light of the judicial guidelines laid down by the Apex Court in various cases, there should be proper protective measures that has to be taken while arresting a person alleged to have committed an offence. The police officials should make sure that, the accused is aware of the grounds under which he is arrested and the rights available to him. They should also inform the family members about the same. They should make sure that the arrest is being recorded in the prescribed form and that proper medical examination have to be done. To prevent atrocities in the police stations, the provision for mandatorily fixing CCTV cameras have to be checked frequently to ensure that it is working, in the absence which would make the officials in charge of the station to be held liable.  
• Establishing a transparent prison system: There should be reform to the prison system in India which is seen as opaque, giving less room to transparency. It should be such that, it is transparent enough to be scrutinise the records or the documented materials in the prison. Regular visits by the authorities concerned have to be done to ensure that the prisoners are not inflicted with any force, abuse or violence.  
• An exhaustive legislation which deals with Custodial Violence: The custodial violence as discussed in the above chapters, have been covered under various national legislations as rights of the accused. The Apex Court have also came with several guidelines that has to be followed by the police. However, since the violence occur much before the arrest is made and often it is covered up by the police officials which remain unnoticed. Such chain of illegal acts which results in custodial violence can only be abated by a special legislation, that provides for defining the torture and which envisages for an institution that provides for an independent committee to investigate upon the allegations of the police brutality, while imposing high penalties as a deterrent. Such a legislation would help in releasing the full potential of enjoying the constitutional values of protection of life and liberty.  
• Protection of the weaker sections: With respect to the weaker sections who are often been victimised of the custodial violence, the recommendation made by NPC in its third report have been implemented. The Commission recommended for a special investigation cell in the police department at the State level in order to monitor the progress of investigation of cases under the Protection of Civil Rights Act or other atrocities against Scheduled Castes and Scheduled Tribes. Also, there is a requirement of a composite cell at the district level under the Sub Divisional officer to inquire into complaints that emanates from Scheduled Castes and Tribes, particularly those relating to lapses in administrative measure meant for their relief.[40]
• Raghubir Singh v. State of Haryana, AIR 1980SC 1087
• Kishore Singh v. State of Rajasthan , AIR 1981 SC 625
• Sheela Bore v. State of Maharashtra, AIR 1983 SC 378-80
• State of UP v. Ram Sagar Yadav, AIR 1985 SCR (2) 621
• D.K.Basu v. State of West Bengal, 1997 SCC (1) 416
• Sube Singh v. State of Haryana & Ors., 1988 AIR 2235
• Prakash Kadam v. Ramprasad Vishwanath Gupta, 2011 SCC (6) 189
• Batcha v. State, 2011 SCC (7) 45
• State of Andhra Pradesh v. N.Venugopal, AIR 1964 SC 33
• Haricharan v. State of Maharashtra, AIR 1964 SC 1184
• Dagdu & Ors. V. State of Maharashtra, 1977 SCR (3) 636
• Ram Lila Maidan Incident v. Home Secy, UOI 2012 SCC (5) 1
• Constitution of India (Articles 19, 20,21,22,32 and 226)
• Indian Penal Code, 1860
• Criminal Procedure Code, 1973
• Indian Evidence Act, 1872
• SC ST (Prevention of Atrocities) Act, 1989
• Human Rights Act, 1993
• Indian Police Act, 1861
• The Standard Minimum Rules for the Treatment of Prisoners
• The Draft Principles on Freedom from Arbitrary Arrest, Detention and Excile 1963, Article 10, 22(2), 24 and 26.
• International Covenant on Civil & Political Rights, 1976, Articles 6(1),7,9,10 and 14-16.
• Convention against Torture and Other cruel, Inhuman or Degrading Treatment on Punishment, 1987
• R.S.Saini, Custodial Torture in Law & Practice With Reference To India, Journal of the Indian Law Institute, Vol. 36, No.2, 1994, pp. 166-192.
• A.G. Noorani, Access to Prisons & Custodial Torture, Economic & Political Weekly, Vol.40, No. 42, 2005, pp 4497-4498.
• Clemens Arzt, Police Reform & Preventive Powers of Police in India- Observations on an Unnoticed Problem, Law & Politics in Africa, Asia & Latin America, Vol. 49, No.1, 2016, pp 53-79.
• Jitendra Mishra, Custodial Atrocities, Human Rights and the Judiciary, Journal of Indian Law Institute, Vol. 47, No.4, 2005, pp 508-521
• Nirman Arora, Custodial Torture in Police Stations in India: A Radical Assessment, Journal of Indian Law Institute, Vol. 41, No. �, 1999, pp 513-529.
• Jinee Lokaneeta, Defining an Absence: Torture Debate in India, Economic and Political Weekly, Vol. 49 No. 26/27, 2014 pp. 69-76.
• Hithesh Sanker T S & Praveen Lal, Custody Death in Kerala: A Study from Post-mortem Data in Thrissur Medical College, Economic & Political Weekly, Vol. 47 No. 12, 2012, pp 23-26.
• K.S.Subramanian, Political Violence & the Police in India, 2007, Sage Publication India Pvt Ltd.
• 152nd Law Commission Report on Custodial Crime, 1994.
• 273rd Law Commission Report, 2017.
• Anup Surendranath, 'Police Violence and How some lives do not matter ', The Hindu (4 July 2020).
• Ashwani Kumar, 'Standing up for Human Rights', The Hindu (7 January 2018).
• Gopalkrishna Gandhi, 'The importance of being humane', The Hindu (20 February 2019).
• Aishwarya Mohanty, 'The Cruelty camera can't see', The Indian Express (11 December 2020).
• Sparsh Upadhyay, 'Argument by [Police That CCTV in the police Station was not working can't be accepted: Bombay High Court, Live Law.com (8 December 2020).
• Aadhya Khanna & Chethan Chawla, 'The Enshrinement of Custodial Violence in India' (Bar & Bench, 17 July 2020).
• Deekshe Saggi, 'Custodial Deaths & Role of Judiciary: A Critical Analysis' (Latest Laws.com, 25 July 2020)
• India's Annual Report on Torture, 2019
• Krug.E, Dahlberg L, Mercy.J, World Report on Violence & Health, Geneva:WHO 2002.
• AIR 1978 SC 659.
• Kharakh Singh v. State of UP, AIR 1978 SC 1259.
• Francis Corlie v. The Administration, Union Territory of Delhi, AIR 1981 SC 746.
• Sections 330 and 331 of IPC.
• Section 29 of the Police Act, 1861.
• Sections 66(b) & (c).
• Sections 10A(h) & (i).
• Sections 49(b) & (c).
• Section 22.
• Sections 24,26 & 27.
• Sections 162,163(1),315 & 342(a).
• (1994) 4 SCC 260.
• (1997) 1 SCC 416.
• Article 39A of Constitution of India.
• NCRB, 2018.
• 1960 AIR 756.
• AIR 1980 SC 1087.
• Kishore Singh v. State of Rajasthan, AIR 1981 SC 625.
• Sheela Barse v. State of Maharashtra, AIR 1981 SC 625.
• AIR 1985 SCR (2) 621.
• 1997 SCC (1) 416.
• 1994 AIR 1349.
• AIR 1965 SC 1039.
• AIR 2006 SC 1117.
• India: Annual Report on Torture 2019.
• Supra at note 28.
• Dalit Youth alleges torture at police station in Arkalgud Taluk, The Hindu, 13 March, 2019.
• Supra at note 27.
• Nomadic tribesmen thrashed, one dead, Ahmedabad Mirror, 23 August 2019.
• Kavitha Muralidharan, 'For the Kuravars of Tamil nadu, Custodial Violence is a way of Life, and Death', The Wire (1st July 2020).
• Crime in India-2018, NCRB.
• Supra at note 32.
• Tuka Ran & Anr. v. State of Maharashtra, 1979 AIR 185.
• Vasanth Kannabiran,'Rameeza Bee Rape Case: A Brutal orientation to the patriarchal nature of the law., Indian Cultural Forum, June 27,2020.
• Complaint of Asian Centre for Human Rights to the National Human Rights Commission of India, 26 June 2007.

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Custodial Violence: Horrendous Crime in a Civilised Society

Shephalika srivastava.

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LL.M Student at Babasaheb Bhimrao Ambedkar University Lucknow, India.

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Custodial violence, perhaps one of the worst crimes in a civilized society is a matter of concern for many reasons. Custodial violence, including torture and death in the lock-ups, strikes a heavy blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that they should be limited by law. The law of arrest expects both individual rights and the state’s collective responsibility toward society. In most scenarios, it becomes a challenge to strike a perfect balance between both. Transparency of action and accountability are possible safeguards to prevent abuse of power to arrest a citizen. Custodial violence broadly includes custodial deaths, torture, and as per the new trend in the crime pattern, even custodial rapes. Custodial Violence in India is widespread, unaccounted for, and rarely prosecuted. It contributes to the state of anarchy and lawlessness in many parts of the country. Violence is used as a cheap and easy method of investigation and also as a tool for oppression. It is almost an unwritten understanding that when an officer asks his subordinates to ‘thoroughly interrogate a suspect’ it would simply mean ‘torture’. In the case of D. K Basu V State of West Bengal, the highest body of justice, the Supreme Court, had clearly stated, “Custodial torture is a naked violation of human dignity. The situation is aggravated when violence occurs within the four walls of a police station by those who are supposed to protect citizens”, also paying consideration to the tediousness of police task in yielding control over its civil population. Human Dignity is the highest form of fundamental right respected even by our most powerful and prestigious statute book, the Indian Constitution. When an individual is taken under custody, it means that he/ she becomes the legal property of the state, which also means the state and its missionaries become their legal guardians and all its institutions are at their disposal to reprimand them as well as guard them. But the idea of state custody has become so alarming that society fears cooperation and even the notion of police and police stations.

• Custodial violence
• Human Dignity
• Constitution
• Police and fake encounters.

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International Journal of Law Management and Humanities, Volume 5, Issue 5, Page 195 - 210

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ANALYSIS OF CUSTODIAL DEATHS IN INDIA: AN INFRINGEMENT OF HUMAN RIGHTS by Swetalika Das

Author : Swetalika Das, Student at Amity University, Kolkata

Custodial deaths are a raising concern in our society which is leading mistrusts in public. As because police officers were considered as safeguards and have the rights to protect public’s fundamental rights sometimes the same person violates those laws instead of protecting it. In this article, the author analysed various legal perspectives on custodial deaths and the causes of the same.

The main objective of this article is to spread an awareness of custodial deaths issue and how it is highly important to maintain equality and to protect dignity of person’s right to live . The issues which were raised in this article are :

• Does custodial violence is the only cause of deaths?
• If no, then what are the other causes?
• What does the law saying? ( by preferring some case laws)
• What are the solutions to custodial deaths?

After analysing all the issues, it was discovered that maximum people were died in custody just because of the torture and violence by police authorities and people were also dying because of unavailable healthcare, medical aids which is showing a sheer negligence of police authorities.Further, the article will eventually conclude with a final observation.

Keywords: Custodial deaths, fundamental rights, police officers , violence .

INTRODUCTION

The Custodial cruelty is one of the Heinous Crimes in India which often go unpunished. It’s a bitter truth but custodial torture is the worst thing which can happen to destroy someone’s fundamental rights. There were numerous cases of custodial deaths and according to the recent annual report of the year 2019 , 1606 people died in the judicial custody and 125 in police custody which in total of 1731 people died in custody which means that every five people die daily according to a report released by a human rights group.

The word “ custody” means the legal rights or duty to take care of someone even when the accused is arrested it doesn’t not give anyone the power to create terror or violence against the accused. According to the National Health Rights Commission (NHRC), it strictly mentioned in their lists that custody is to prevent any kind of torture or infringement of human rights. In country like India, where the constitution believes in the liberty towards fundamental rights, offences like custodial deaths aren’t acceptable and most of the custodial deaths cases goes unpunished resulting in more number of cases . Due to the increase in custodial death cases people have started to lose faith in the legal system of our country.

Police officers are supposed to protect the fundamental rights of common man and violation from the same person is disgraceful.

This article argues on the causes of custodial deaths, why custodial deaths goes unpunished and case laws associated with it. The main objective of this article is to bring awareness about the most concerned issue like custodial deaths and further, this article will deal with the problems and suggestions.

HUMAN RIGHTS AND CUSTODIAL DEATHS

The constitution of India has given specific rights to the citizens of India and safety or protection against any violation towards them. There are seven such fundamental rights mentioned in the constitution of India among which the most common and important is Article 21 which is stating:

          “ [1] No person should be deprived of his life or personal liberty” except according to the procedures done by the law.

This constitution of law implies that Every person is equal and the Supreme Court also stated that “ [2] The protection of the article extends to all the persons not merely citizens which also [3] includes the person under imprisonment and it shouldn’t be violated by any public authority”.

The basic duty of any public officer is to protect those fundamental rights by offering adequate medical treatment in case of any injury or illness regardless of questioning whether he is innocent or guilty.

Unfortunately, the mentioned above laws were always ignored by the police officers . Firstly, they arrested the Accused ones and bought under custody and further, tortured very harshly which resulted in infringement of their rights. Even after the torture they weren’t provided with any medical aid or support which is eventually causing custodial deaths. The most concerned fact is the accused ones who were under trial or inquiry stage have to face all the ill treatments from the society as well. Generally, the accused ones were looked down by the society, but according to the law even an accused person under the trial or in prison shouldn’t be deprived of his rights.

The Supreme Court also stated that “ [4] Every convicts , prisoners and under trials have right under Article 21 and only such Restrictions can be imposed as permitted by law.”  

In most of the cases, many accused ones weren’t even proven guilty by the court but still assumed to be a criminal and consequently, they get an ill treatment from the police officers. The police officers try to infringe of person’s basic rights who can be held as an innocent in future.

CUSTODIAL DEATHS

Definition:

The custodial death is the death of a person in a police custody or judicial custody while custodial violence can have two forms of violence.

• In Section 330, Section 331 and Section 348 of Indian Penal Code, Section 76 of CrPC and Section 29 of the Police Act it implies that the police officers can torture to only extract confessions but only in necessary circumstances.
• In other part, there are police officers who were misusing their powers just to extract the confession of crimes from the accused. They were committing some heinous cognizable offences such Rape which is eventually leading to death of an accused.

In a recent study by a group of human rights, the majority of victims of custodial deaths are from the lower level of society who aren’t even aware of their basic fundamental rights. Due to this reason, they couldn’t raise their voice against the torture they are facing.

[5] According to a survey of the year 1991, when the police officers were asked about the reason behind such cruelty they answered that “ all the ways they are applying only to make the person confess his crimes which is mentioned in our Indian jurisdiction”, but just for the sake of confession they were using all the illegal ways which is beyond anyone’s imagination.

Some of the inhuman acts includes electric shock, rape , forcing to perform oral sex, putting chilli powder in eyes, beating with iron rods, inserting hard objects in the private parts and many more resulting into deaths in custody.

Causes of Custodial deaths:

• Violence and cruelty in the name of extracting confessions
• No safety or protection and medical aid provided
• Commitment of suicide out of fear from the legal proceedings
• Deaths due to natural causes

CASE LAWS RELATED TO CUSTODIAL DEATHS

• Nilabati Behera vs State of Orissa

In the case, the apex court observed that [6] “every prisoners and arrestees are having their fundamental rights according to the article 21 of the Indian constitution. They have the equal rights to enjoy all the basics of fundamental rights and the police are bound to obey the law and to protect their fundamental rights by ensuring that the citizen in custody isn’t deprived from his right to life”. The Court further took a reference of Article 9(5) of the international convenant  on civil and political rights which implies the right to compensation should be taken into consideration and anyone who is the victim of unlawful arrest and tortured in the custody shall be awarded with compensation. In this case, the apex court awarded the deceased’s mother a compensation of Rs. 1.5 lakhs who was a victim of custodial violence and unfortunately died in the police custody.

• D.k. Basu vs. State of West Bengal

In the case, a non-social organisation, legal aid services and executive chairman has wrote a letter for the matter of increasing custodial deaths in the state of West Bengal. Later, the letter converted into a public interest litigation (PIL) which was passed by the Supreme Court and filed a petition regarding the rising concern of custodial death in February 1998 while in this period, the news of the death of Mahesh Bihari in Aligarh police custody spread rapidly and The court observed the case and came into a conclusion to form a set of rules and regulations regarding the arrest of a person and  put a strict 11 guidelines on the police department.The Court also included this observation in D.K.Basu’s case. The Observation of the court was:

“ [7] In almost every states there are cases and those cases are increasing day by day with a rising of frequent custodial deaths . At present, there’s no appearance of any such methods to deal with such cases. Since, this is a matter of whole nation and the state governments . Therefore, it is to issue notices to state government if they have any suggestions or say regarding the concerned matter.”

In this case, the supreme court said that the custodial deaths are need to be reduced as it will have a great impact on legal system and people will eventually start to lose faith in law. Further stated “ every high court should have an eye check on every actions of police officers and should have all the details of accuse in a report and the punishment imposed on them.”

• Yashwant and others vs. state of Maharashtra

In this case, 9 police officers of Maharashtra were found guilty under section 330 of Indian Penal Code (IPC). On September 4, the Supreme convicted all the 9 officers in the case of 1993 custodial death case which involved rigorous violence, extortion and hurt. Later, the court ordered  an  imprisonment of seven years to each of them. A bench of justices N R Ramana and MM Shantanagoudar said “enhancement in the imprisonment term of police cops is important so that incidents like custodial deaths get reduced and police officers should realise their duties before committing any offence”. The court also stated “ [8] the great power comes with great responsibilities” .

Solutions to the custodial deaths

• There should be CCTV cameras in every lockup room.
• Medical aids should be given at proper time in case of any injury or illness
• Negligence by any police officer there should be strict punishment for them without any kind of delay
• If there’s any kind of attempt of suicide by the accused then there should be a therapy session for the accused.

The idea of custody is only to give protection and safety to somebody even when the person is a culprit but this idea is being continuously ignored by some police officers. A police officer is a person whose duty is to maintain the law and order and we can’t expect the infringement of human rights from the same person who is obliged to protect it. Custodial Deaths are undoubtedly a serious concern for our society as its leading to put a question mark on our judicial system. A person whether he is guilty or not guilty shouldn’t be deprived from his fundamental rights , he still has his right to live and police officers are bound to protect that right.

People in a country wouldn’t follow the rules and regulations until and unless the law makers themselves follow all the rules. The police officers were regarded as the safeguards of our country and a common man follows their ideas and perspectives but this kind of offences giving an unpleasant example to the society.

As such, enforcement of law is permanent process and therefore, every public authority irrespective of their positions should follow and obey the provisions law. If possible, the same public officer should be convicted at the very moment after committing the offence so that there wouldn’t be any misuse of powers and common man wouldn’t have any kind of mistrust on the judicial system.

[1] Dr D.D Basu, shorter constitution of India, 12 th ed, 1999, p.168

[2] Anwar vs. state of Jammu and Kashmir (1970) 2 S.C.W.R 276 (279)

[3] State of Maharashtra vs. Prabhakar 1966 S.C. 426(426)

[4] Nilabati vs. state of Orissa A.I.R 1993 S.C. 1960

[5] B.Maria Kumar, Custodial deaths in India: a research study, paper presented in the svp national police academy, Hyderabad, 1994

[6] Smt. Nilabati vs. state of Orissa A.I.R 1993 S.C. 1960

[7] D.k. Basu vs State of West Bengal, (1997) (1) SCC 416

[8] Yashwant and others v. State of Maharashtra (2018) 4 MLJ (Crl) 10 (SC)

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What the data says about crime in the U.S.

A growing share of Americans say reducing crime should be a top priority for the president and Congress to address this year. Around six-in-ten U.S. adults (58%) hold that view today, up from 47% at the beginning of Joe Biden’s presidency in 2021.

We conducted this analysis to learn more about U.S. crime patterns and how those patterns have changed over time.

The analysis relies on statistics published by the FBI, which we accessed through the Crime Data Explorer , and the Bureau of Justice Statistics (BJS), which we accessed through the  National Crime Victimization Survey data analysis tool .

To measure public attitudes about crime in the U.S., we relied on survey data from Pew Research Center and Gallup.

Additional details about each data source, including survey methodologies, are available by following the links in the text of this analysis.

With the issue likely to come up in this year’s presidential election, here’s what we know about crime in the United States, based on the latest available data from the federal government and other sources.

How much crime is there in the U.S.?

It’s difficult to say for certain. The  two primary sources of government crime statistics  – the Federal Bureau of Investigation (FBI) and the Bureau of Justice Statistics (BJS) – paint an incomplete picture.

The FBI publishes  annual data  on crimes that have been reported to law enforcement, but not crimes that haven’t been reported. Historically, the FBI has also only published statistics about a handful of specific violent and property crimes, but not many other types of crime, such as drug crime. And while the FBI’s data is based on information from thousands of federal, state, county, city and other police departments, not all law enforcement agencies participate every year. In 2022, the most recent full year with available statistics, the FBI received data from 83% of participating agencies .

BJS, for its part, tracks crime by fielding a  large annual survey of Americans ages 12 and older and asking them whether they were the victim of certain types of crime in the past six months. One advantage of this approach is that it captures both reported and unreported crimes. But the BJS survey has limitations of its own. Like the FBI, it focuses mainly on a handful of violent and property crimes. And since the BJS data is based on after-the-fact interviews with crime victims, it cannot provide information about one especially high-profile type of offense: murder.

All those caveats aside, looking at the FBI and BJS statistics side-by-side  does  give researchers a good picture of U.S. violent and property crime rates and how they have changed over time. In addition, the FBI is transitioning to a new data collection system – known as the National Incident-Based Reporting System – that eventually will provide national information on a much larger set of crimes , as well as details such as the time and place they occur and the types of weapons involved, if applicable.

Which kinds of crime are most and least common?

Property crime in the U.S. is much more common than violent crime. In 2022, the FBI reported a total of 1,954.4 property crimes per 100,000 people, compared with 380.7 violent crimes per 100,000 people.  

By far the most common form of property crime in 2022 was larceny/theft, followed by motor vehicle theft and burglary. Among violent crimes, aggravated assault was the most common offense, followed by robbery, rape, and murder/nonnegligent manslaughter.

BJS tracks a slightly different set of offenses from the FBI, but it finds the same overall patterns, with theft the most common form of property crime in 2022 and assault the most common form of violent crime.

How have crime rates in the U.S. changed over time?

Both the FBI and BJS data show dramatic declines in U.S. violent and property crime rates since the early 1990s, when crime spiked across much of the nation.

Using the FBI data, the violent crime rate fell 49% between 1993 and 2022, with large decreases in the rates of robbery (-74%), aggravated assault (-39%) and murder/nonnegligent manslaughter (-34%). It’s not possible to calculate the change in the rape rate during this period because the FBI  revised its definition of the offense in 2013 .

The FBI data also shows a 59% reduction in the U.S. property crime rate between 1993 and 2022, with big declines in the rates of burglary (-75%), larceny/theft (-54%) and motor vehicle theft (-53%).

Using the BJS statistics, the declines in the violent and property crime rates are even steeper than those captured in the FBI data. Per BJS, the U.S. violent and property crime rates each fell 71% between 1993 and 2022.

While crime rates have fallen sharply over the long term, the decline hasn’t always been steady. There have been notable increases in certain kinds of crime in some years, including recently.

In 2020, for example, the U.S. murder rate saw its largest single-year increase on record – and by 2022, it remained considerably higher than before the coronavirus pandemic. Preliminary data for 2023, however, suggests that the murder rate fell substantially last year .

How do Americans perceive crime in their country?

Americans tend to believe crime is up, even when official data shows it is down.

In 23 of 27 Gallup surveys conducted since 1993 , at least 60% of U.S. adults have said there is more crime nationally than there was the year before, despite the downward trend in crime rates during most of that period.

While perceptions of rising crime at the national level are common, fewer Americans believe crime is up in their own communities. In every Gallup crime survey since the 1990s, Americans have been much less likely to say crime is up in their area than to say the same about crime nationally.

Public attitudes about crime differ widely by Americans’ party affiliation, race and ethnicity, and other factors . For example, Republicans and Republican-leaning independents are much more likely than Democrats and Democratic leaners to say reducing crime should be a top priority for the president and Congress this year (68% vs. 47%), according to a recent Pew Research Center survey.

How does crime in the U.S. differ by demographic characteristics?

Some groups of Americans are more likely than others to be victims of crime. In the  2022 BJS survey , for example, younger people and those with lower incomes were far more likely to report being the victim of a violent crime than older and higher-income people.

There were no major differences in violent crime victimization rates between male and female respondents or between those who identified as White, Black or Hispanic. But the victimization rate among Asian Americans (a category that includes Native Hawaiians and other Pacific Islanders) was substantially lower than among other racial and ethnic groups.

The same BJS survey asks victims about the demographic characteristics of the offenders in the incidents they experienced.

In 2022, those who are male, younger people and those who are Black accounted for considerably larger shares of perceived offenders in violent incidents than their respective shares of the U.S. population. Men, for instance, accounted for 79% of perceived offenders in violent incidents, compared with 49% of the nation’s 12-and-older population that year. Black Americans accounted for 25% of perceived offenders in violent incidents, about twice their share of the 12-and-older population (12%).

As with all surveys, however, there are several potential sources of error, including the possibility that crime victims’ perceptions about offenders are incorrect.

How does crime in the U.S. differ geographically?

There are big geographic differences in violent and property crime rates.

For example, in 2022, there were more than 700 violent crimes per 100,000 residents in New Mexico and Alaska. That compares with fewer than 200 per 100,000 people in Rhode Island, Connecticut, New Hampshire and Maine, according to the FBI.

The FBI notes that various factors might influence an area’s crime rate, including its population density and economic conditions.

What percentage of crimes are reported to police? What percentage are solved?

Most violent and property crimes in the U.S. are not reported to police, and most of the crimes that  are  reported are not solved.

In its annual survey, BJS asks crime victims whether they reported their crime to police. It found that in 2022, only 41.5% of violent crimes and 31.8% of household property crimes were reported to authorities. BJS notes that there are many reasons why crime might not be reported, including fear of reprisal or of “getting the offender in trouble,” a feeling that police “would not or could not do anything to help,” or a belief that the crime is “a personal issue or too trivial to report.”

Most of the crimes that are reported to police, meanwhile,  are not solved , at least based on an FBI measure known as the clearance rate . That’s the share of cases each year that are closed, or “cleared,” through the arrest, charging and referral of a suspect for prosecution, or due to “exceptional” circumstances such as the death of a suspect or a victim’s refusal to cooperate with a prosecution. In 2022, police nationwide cleared 36.7% of violent crimes that were reported to them and 12.1% of the property crimes that came to their attention.

Which crimes are most likely to be reported to police? Which are most likely to be solved?

Around eight-in-ten motor vehicle thefts (80.9%) were reported to police in 2022, making them by far the most commonly reported property crime tracked by BJS. Household burglaries and trespassing offenses were reported to police at much lower rates (44.9% and 41.2%, respectively), while personal theft/larceny and other types of theft were only reported around a quarter of the time.

Among violent crimes – excluding homicide, which BJS doesn’t track – robbery was the most likely to be reported to law enforcement in 2022 (64.0%). It was followed by aggravated assault (49.9%), simple assault (36.8%) and rape/sexual assault (21.4%).

The list of crimes  cleared  by police in 2022 looks different from the list of crimes reported. Law enforcement officers were generally much more likely to solve violent crimes than property crimes, according to the FBI.

The most frequently solved violent crime tends to be homicide. Police cleared around half of murders and nonnegligent manslaughters (52.3%) in 2022. The clearance rates were lower for aggravated assault (41.4%), rape (26.1%) and robbery (23.2%).

When it comes to property crime, law enforcement agencies cleared 13.0% of burglaries, 12.4% of larcenies/thefts and 9.3% of motor vehicle thefts in 2022.

Are police solving more or fewer crimes than they used to?

Nationwide clearance rates for both violent and property crime are at their lowest levels since at least 1993, the FBI data shows.

Police cleared a little over a third (36.7%) of the violent crimes that came to their attention in 2022, down from nearly half (48.1%) as recently as 2013. During the same period, there were decreases for each of the four types of violent crime the FBI tracks:

• Police cleared 52.3% of reported murders and nonnegligent homicides in 2022, down from 64.1% in 2013.
• They cleared 41.4% of aggravated assaults, down from 57.7%.
• They cleared 26.1% of rapes, down from 40.6%.
• They cleared 23.2% of robberies, down from 29.4%.

The pattern is less pronounced for property crime. Overall, law enforcement agencies cleared 12.1% of reported property crimes in 2022, down from 19.7% in 2013. The clearance rate for burglary didn’t change much, but it fell for larceny/theft (to 12.4% in 2022 from 22.4% in 2013) and motor vehicle theft (to 9.3% from 14.2%).

Note: This is an update of a post originally published on Nov. 20, 2020.

• Criminal Justice

John Gramlich is an associate director at Pew Research Center

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