Not just 16 days against gender-based violence

It has been over 13 years since Nepal passed a law criminalising domestic violence. Legislators were clear that the law was only a starting point when they passed it in 2009.

Yet, the seeming lack of interest to revisit this legislation and plug gaps has one thinking if Parliament has closed the door on tackling the country’s largest crime problem.

Domestic violence is a pandemic. It is estimated that almost 30% of the population are victims of violence within the home. No other crime in Nepal is this pervasive. It is arguably at the root of most crime and violence in later life: surveys of prison populations demonstrate that most offenders report growing up with violence in the home. A broken home will morph into a broken society.

For decades, domestic violence was globally treated as a private affair and not the concern of the police or the criminal justice system. Nepal did well to criminalise domestic violence, the third country in South Asia to do so following India and Sri Lanka. Currently all SAARC countries barring Afghanistan have criminalised domestic violence, with Pakistan passing a law in 2020.

According to Nepal’s law domestic violence is any act of physical, psychological, sexual or economic (deprivation) violence against any member of a household. This includes family members living under the same roof, couples living together (and not married) and domestic helpers.

Nepal’s legal framework for domestic violence has a soft approach. The emphasis is on reconciliation as opposed to punishment. This is in stark contrast to most other laws which are heavily punitive.

According to the domestic violence law, once a victim files a complaint of domestic violence, the presiding authority may attempt to reconcile the victim and offender for a period of one month. Victims’ consent to reconcile is a legal requirement.

I conducted research several years ago as part of my PhD observing how police handle cases of domestic violence in Nepal. At the police station I observed that victims are told that the perpetrator will be invited for a “discussion” (in reality an attempt at reconciliation). No effort is put into asking the victims what they really want, and whether they understand the nature of consent.

The courts follow a similar pattern. A judge will almost always refer a domestic violence suit to a session of mediation in an attempt to elicit a reconciliatory settlement. There is no requirement that court appointed mediators have any training on handling trauma suffered by both perpetrators and victims of violence. Mediation sessions can therefore prove to be disastrous for the mental health of parties and aggravate threats to victims.

The domestic law widens access to justice by allowing victims to file complaints in any of the four agencies of her/his choosing: the police, National Women’s Commission (NWC), local authorities or the district court.

However, the NWC is in Kathmandu and victims are spread across the land. To go to court one needs a lawyer. The domestic violence law (except in cases of acid attack) requires victims to find their own lawyers.

It is unrealistic for most victims of domestic violence to be able to afford the fees of private lawyers. Besides, as lawyers we know that most victims lose in court on grounds that they are unable to provide sufficient evidence of violence. Going to court is futile, more often than not.

The punishment for domestic violence is absurdly lax: maximum 6 months imprisonment or a fine of up to Rs.25,000 with slightly higher punishment for government office bearers or repeat offenders. Compare this to the punishment for general assault (कुटपिट) with five times higher imprisonment of up to 3 years and/or a fine of up to Rs 30,000. The law deems the attack of a stranger on the street more harmful than an attack at home. Perpetrators are also not remanded while the case is ongoing in court — allowing them access to victims to threaten intimidate or punish them.

Punishment and prosecution is not the panacea for addressing domestic violence. Failures of Western countries like the US and UK to tackle this crime problem with mandatory arrest and prosecution laws are evidence of this. However, Nepal’s approach of conducting reconciliation with largely untrained human resource is not working either.

Nepal’s legislature must visit the domestic violence law with urgency. The provision on reconciliation needs to be examined to see if it should be permitted for all cases or whether we need to take Bhutan’s approach of only allowing it for first time offenders who commit less serious acts of violence.

The legislature must align the domestic violence law with other Nepali criminal laws pertaining to assault (physical, mental, sexual) so that messaging about the seriousness of domestic violence is unequivocal.

Comparatively, the most promising response to this crime is seen when law enforcement and other services such as social workers, medical professionals and members of communities respond jointly to a crisis. Might this response be written in law?

Moreover, offender treatment is of paramount importance to mitigate against risks of reoffending. Nepali lawmakers need to consider this element within the legal framework

Recently, Chief Justice Bishowambhar Prasad Shrestha announced setting up family benches (court rooms dedicated to looking at cases involving family law such as domestic violence) in district courts.

They are in operation now, and the judiciary needs to do some serious work around defining what constitutes evidence in matters of domestic violence. Good practice internationally shows that the rules around which evidence is admitted in court is relaxed when it involves domestic violence. The fact that most victims lose in court should have the chief justice’s attention.

As we participate in another 16 day campaign against gender based violence that commenced on 25 November, commitments of the legislature, judiciary and executive government need to yield concrete steps to strengthen Nepal’s domestic violence law.

Aastha Dahal is a Kathmandu-based lawyer with a PhD in criminology from the University of Cambridge.