Rape rulings in Nepal follow letter, not spirit of the law

Activists protest government's reluctance to solve the rape and murder of Nirmala Panta, a teenager whose body was found near her home in Kanchanpur in July 2018. Photo: RSS

  • Statute of Limitations: A 10-year-old girl is repeatedly raped by her caretaker. Her mother finds out much later. Since the statute of limitations to report rape was 35 days at the time, the complaint could not be filed. A Public Interest Litigation to extend the time is still pending in court six years later. The actual rape case has not even been registered.
  • No Counselling: A pre-teen tells her mother a man “did something bad” to her. The police report has no details, only ‘something bad’, but the court scribe assumes it is ‘vaginal intercourse’. Medical report states that her hymen is intact. Doubts are raised, which helps the defendant in the court.
  • Manipulation: A 17-year-old claims that she was manipulated and threatened into having sexual intercourse with the promise of marriage. She is asked how she can call it rape, since there is no physical injury or signs of resistance.
  • ‘Honour’: Defence counsel argues that the stigma of rape will brand a seven-year-old child for life. The view that her reputation is more important than justice takes precedence. The perpetrator is acquitted, to ‘help’ the victim.
  • Stigma: The mother of a young girl finds out her husband has been raping their daughter. She fails to report the rape, but files a complaint about domestic violence demanding divorce and her share of property. 4

Rape survivors and victims of sexual abuse in Nepal are increasingly going public with their experience, but even if they file a complaint, it is doubtful if they will ever get justice given the loopholes in the law.

Nepal’s law does not match up to international standards: victims have only one year to report rape, the complaint procedure is stacked against them, and often there are no counsellors even for children. Most rape cases therefore go unreported, and the 1,600 complaints filed with police last year were just a small fraction of the actual cases.

In fact, the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) has asked Nepal to abolish the statute of limitations saying it denies victims the right to effective remedy, and is especially unfair to victims of war crimes.

Since most perpetrators are family members or known persons, there is pressure on the victim not to register the case at all. The law mandates the presence of counselors for victims, but it is rarely implemented. Many victims, especially children, are therefore not able to open up in the presence of intimidating officials.

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Four-fold increase in reported rape in ten years, Sewa Bhattarai

The roots of rape, Kedar Sharma

Most victims choose not to pursue cases because they do not know how to work the court system and do not have the resources to fight it out. Figures show that only 60% of rape cases are closed, and only about a quarter of the victims get a favourable verdict.

Even though a 2015 amendment broadened the definition of rape to include non-penile penetration, it is still rare for a court to convict such offenders. A Kathmandu School of Law report states that Nepal’s judiciary is ‘obsessively concerned with looking into elements such as penetration, use of force and completion of sexual intercourse by ejaculation’ as primary grounds for conviction. In absence of such evidence, the courts tend to shift the charge of ‘rape’ to ‘attempted rape’.

Advocate Sushma Gautam says the situation is more favourable today as the Supreme Court has made landmark decisions based on the new laws, but she says not everyone is updated about the new laws.  “Even some judges and lawyers are ignorant of what constitutes rape and operate on their traditional mindset which considers only penile penetration to be rape,” she explains.

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#Theytoo, Sewa Bhattarai

Republic of rape, Editorial

Activists worry that the system favours the perpetrator rather than the victim. The severity of the punishment is based on the age of the victim, with 16 years of imprisonment if the victim is aged below 10, and only 5-7 years if she is above 20, and there is also extra punishment if the victim is more than six months pregnant, or is disabled.

“These provisions are unfair because they assume that an adult female in good health cannot be raped, which is not the case,” says Binita Pandey, a lawyer at Women’s Rehabilitation Center, (WOREC) Nepal. In the case of adult women, investigation often veers towards what the woman was wearing, why she was out at a particular time, and attempts to blame the victim for provocative behaviour.

It is even more difficult for male victims: the law regarding paedophilia address male children, but rape laws specifically mention only ‘women’ as rape victims, leaving out men and transgender persons. Nepal’s laws are still based on patriarchal notions that a woman’s sexuality is the property of her male partner and not herself.

Even as international standards like CEDAW mention ‘women’s sexual autonomy and consent’ in laws regarding rape, Nepal’s laws are still concerned about chastity, depriving many male and female victims of justice.

“The problems with our Criminal Justice System is that the government is not really focused on implementing it,” says advocate Indu Tuladhar. “Our laws have improved, but there are still many loopholes. Often, the government does not actually implement high sounding provisions, which means that we must question its intention. Does it really want to deliver justice, or is it just creating laws that look good?”

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 Justice delayed and denied, Sewa Bhattarai

Crime and Politics, Namrata Sharma

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