Nepal needs to revisit its laws on sexual offences. Many Sections in existing laws add more trauma to the survivors and make their access to justice difficult.
On 18 May 2022, a young woman, 24, took to her TikTok and posted a series of videos revealing the horror she has gone through when she was just 16 years old – a minor. She alleged that she was drugged and sexually assaulted by the accused at a hotel in Baneshwor; and that the accused went on to abuse her for next six months. In one of her videos, she questioned the rule of law in Nepal. The ‘Statute of Limitation’ is preventing her from seeking legal remedy.
While the people were still in shock, protesting the incident and demanding justice for the survivor, another incident from one of the colleges in Kathmandu came to light. The minor students of the college alleged that some teachers have been sexually abusing them.
The law in Nepal requires complaints in rape cases to be filed within one year of the date of the incident, except in the cases of ‘incest’ as provided under Section 229 of the National Penal Code of Nepal. Further, in cases of bestiality and cases where offence is committed against a person held in detention, taken into control, kidnapped or taken hostage, they are required to file a complaint within three months of their release.
The Constitution of Nepal guarantees protection to women under Article 38(3), which reads “No woman shall be subjected to physical, mental, sexual, psychological or other form of violence or exploitation on grounds of religion, social, cultural tradition, practice or on any other grounds. Such act shall be punishable by law, and the victim shall have the right to obtain compensation in accordance with law”. Despite the guarantees provided under the law, thousands of cases of sexual abuses are reported across Nepal every year.
Crime of rape is recognized as a human rights violation and a manifestation of gender-based violence against women and girls that could amount to torture, under the framework of International Human Rights laws and jurisprudence. Further, rape can even constitute a war crime or a crime against humanity under International Humanitarian Law and International Criminal Law.
The year 2077-78 (2021) data, from Crime Investigation Department of Nepal, shows that 2532 cases of rape, 735 cases of Attempt to rape, 281 cases of child sexual abuse and 36 unnatural intercourse cases were registered throughout Nepal, adding to approximately 19% of the total of crime related cases reported in the country. Most of the rape cases were registered in Province 1, followed by Lumbini, Province 2, Bagmati, Sudurpaschim, Gandaki and Karnali Provinces. 227 cases were register in Metro. Similarly, Province 1 topped in cases of child sexual abuse with 77 cases, followed by Bagmati, Gandaki, Province 2, Lumbini, Sudurpaschim and Karnali provinces, while as in Metro 28 cases were registered.
|
Types of Crime |
PROVINCE |
Metro |
Total |
||||||
|
1 |
2 |
Bagmati |
Gandaki |
Lumbini |
Karnali |
Sudurpaschim |
|||
|
Rape |
602 |
375 |
300 |
209 |
438 |
155 |
226 |
227 |
2532 |
|
Attempt to rape |
167 |
115 |
88 |
56 |
134 |
46 |
89 |
40 |
735 |
|
Unnatural Intercourse |
8 |
8 |
1 |
3 |
10 |
1 |
3 |
2 |
36 |
|
Child Sexual Abuse |
77 |
35 |
47 |
38 |
34 |
3 |
19 |
28 |
281 |
|
Polygamy |
170 |
108 |
82 |
81 |
131 |
97 |
111 |
72 |
852 |
|
Child Marriage |
13 |
12 |
9 |
8 |
10 |
19 |
10 |
3 |
84 |
|
Witchcraft |
4 |
25 |
13 |
2 |
9 |
4 |
4 |
0 |
61 |
|
Abortion |
5 |
10 |
1 |
2 |
4 |
1 |
1 |
3 |
27 |
|
Untouchability |
7 |
1 |
2 |
1 |
6 |
4 |
15 |
3 |
39 |
|
Domestic Violence |
1280 |
3556 |
1126 |
1196 |
2318 |
872 |
1139 |
2754 |
14232 |
|
Total |
2333 |
4245 |
1669 |
1596 |
3094 |
1202 |
1617 |
3123 |
18879 |
Source: Crime Investigation Department (CID)
Looking at the crime data against women and children from last 25 years, there is a significant increase in the cases -particularly rape, attempt to rape and child sexual abuse. The incidents have multi-folded in recent years.
|
Crime Data against Women and Children |
||||||||||
|
Nepali |
Year |
Rape |
Attempt to Rape |
Child Sexual Abuse |
Polygamy |
Child Marriage |
Witch Craft |
Abortion |
Untouchability |
Domestic Violence |
|
053/054 |
1997 |
112 |
34 |
– |
101 |
5 |
– |
74 |
– |
337 |
|
054/055 |
1998 |
181 |
34 |
– |
135 |
3 |
– |
101 |
– |
228 |
|
055/056 |
1999 |
141 |
18 |
– |
96 |
1 |
– |
81 |
– |
432 |
|
056/057 |
2000 |
186 |
33 |
– |
96 |
5 |
– |
89 |
– |
711 |
|
057/058 |
2001 |
122 |
35 |
– |
75 |
1 |
– |
55 |
– |
449 |
|
058/059 |
2002 |
129 |
21 |
– |
51 |
– |
– |
14 |
– |
410 |
|
059/060 |
2003 |
157 |
18 |
– |
69 |
2 |
– |
15 |
– |
569 |
|
060/061 |
2004 |
154 |
19 |
– |
44 |
3 |
– |
8 |
– |
922 |
|
061/062 |
2005 |
188 |
25 |
– |
66 |
1 |
– |
11 |
– |
730 |
|
062/063 |
2006 |
195 |
38 |
– |
65 |
1 |
– |
14 |
– |
939 |
|
063/064 |
2007 |
317 |
70 |
– |
94 |
7 |
– |
3 |
– |
1100 |
|
064/065 |
2008 |
309 |
73 |
– |
122 |
4 |
– |
13 |
– |
881 |
|
065/066 |
2009 |
391 |
75 |
– |
170 |
2 |
– |
12 |
– |
968 |
|
066/067 |
2010 |
376 |
101 |
– |
146 |
7 |
4 |
8 |
– |
983 |
|
067/068 |
2011 |
481 |
151 |
– |
197 |
2 |
39 |
12 |
– |
1355 |
|
068/069 |
2012 |
555 |
156 |
– |
249 |
12 |
35 |
13 |
– |
2250 |
|
069/070 |
2013 |
677 |
245 |
– |
350 |
19 |
28 |
28 |
– |
1800 |
|
070/071 |
2014 |
912 |
414 |
– |
421 |
15 |
39 |
18 |
14 |
6835 |
|
071/072 |
2015 |
981 |
562 |
– |
518 |
23 |
43 |
17 |
10 |
8268 |
|
072/073 |
2016 |
1089 |
452 |
– |
463 |
20 |
28 |
22 |
19 |
9398 |
|
073/074 |
2017 |
1131 |
536 |
– |
464 |
26 |
24 |
22 |
17 |
11629 |
|
074/075 |
2018 |
1480 |
727 |
– |
602 |
59 |
48 |
18 |
18 |
12225 |
|
075/076 |
2019 |
2230 |
786 |
211 |
1001 |
86 |
46 |
27 |
43 |
14774 |
|
076/077 |
2020 |
2144 |
687 |
232 |
734 |
64 |
34 |
29 |
30 |
11738 |
|
077/078 |
2021 |
2532 |
735 |
281 |
852 |
84 |
61 |
27 |
39 |
14232 |
Source: Crime Investigation Department (CID)
The Constitution of Nepal, passed in the year 2015, acknowledge women’s rights and provide protection against sexual violence. In 2017, the National Penal Code increased the “Statute of Limitation” from 35 days to one year, besides expanding the definition of rape. The president of Nepal, through an Ordinance in 2020, amended some sections of the law on sexual violence, including imposition of 3-year jail term and fine for those forcing reconciliation or mediation between perpetrators and rape victims or their families. Mediation in such cases usually end up in forced marriage between the victim and the perpetrator, economic influence or the victims being threatened or discouraged to take legal course citing social stigma.
Despite laws being in place, the definition of rape under the National Penal Code is not at par with international legal standards. It does not contain insertion of any other object or any part of the body of the victim or perpetrator, except penile- vaginal penetration. Referring perpetrator as a ‘person’, in the law, covers the offence committed against the women only, putting the offence committed against other genders out of legal jurisdiction. Similarly, though marital rape has been criminalised with a maximum quantum punishment set not exceeding five years imprisonment, the minimum limit is not provided under the law.
Table defining the punishment based on the age:
| Age of victim | Imprisonment | Fine/Compensation |
| Less than 10yrs | 16-20yrs | 600,000 NPR |
| 10yrs or above 10 but below 14yrs | 14-16yrs | 600,000 NPR |
| 14yrs or above 14 but below 16yrs | 12-14yrs | 400,000 NPR |
| 16yrs or above 16 but below 18yrs | 10-12yrs | 400,000 NPR |
| 18yrs or above 18yrs | 7-10yrs | 200,000 NPR |
| Marital Rape | Not more than five years | 200,000 NPR |
On the basis of the age, physical & mental status of a victim; status and health of the perpetrator and relation between victim and the perpetrator, additional punishment to the perpetrator has been put down in Nepali law under section 219 (6) (7) and (8) of the National Penal (Code) Act 2017.
| Circumstance | Additional Punishment |
| Committed by person despite knowing he has HIV positive | Imprisonment for ten years and one hundred thousand fines |
| Committed by person who has any other sexually transmitted disease | Up to three years imprisonment and fine not exceeding thirty thousand |
| Commission of gang rape Committed on Women who has pregnancy more than six months | Imprisonment for a term not exceeding five years |
| Committed on a woman who is infirm or disabled or suffering from physical or mental illness | Imprisonment for a term not exceeding five years |
| Committed by showing arms | Imprisonment for a term not exceeding five years |
| Sexual intercourse by government employee with detainees or aiding another person to do so. | Imprisonment for a term not exceeding three years as well as the additional punishment if such act is penalized by other law. |
| Sexual intercourse with person in one’s own protection or security or custody; by office-bearer or employee of any organization providing treatment or rehabilitation services to persons of unsound mind or suffering from physical or mental illness held in such organization. | Imprisonment for a term not exceeding three years as well as the additional punishment if such act is penalized by other law. |
| Sexual intercourse by employee serving in a government office or private office or person providing any professional service or commercial work with a person serving in such office or a person making contact or being in contact for such service or work, while performing functions of such office or providing such service or at the place where such service is provided or aiding another person to do so. | Imprisonment for a term not exceeding four year and a fine not exceeding forty thousand rupees as well as the additional punishment if such act is penalized by other law. |
One of the major issues being faced by the survivors of sexual assault that impedes their access to justice is “The Statute of Limitation”, despite the Government of Nepal amending the law and enhanced the reporting period of the complaints from 35 days. The existing laws and justice system on sexual assaults are not only inconsistent with international standards and the directives issued by the Supreme Court of Nepal, but lack victim-centric approach. The short and long psychological impact of such horrific crimes on the survivors need to considered while drafting laws. Sometimes a survivor takes years together to come out of trauma associated with it, which primarily include depression, PTSD, flashbacks, borderline personality disorder, dissociative identity disorder, self-blame, distrust of others, anger, powerlessness, etc. If the perpetrator is a relative, it not only adds up to trauma and threat but, also, makes it difficult for the survivors to report.
The Supreme Court of Nepal, in the case 3393 of the year 2004; Date of Order 11/07/2008, under Decision No. 8038, has clearly stated;
“The period of limitation stipulated in Section 11 under the Chapter of Rape is insufficient and causes obstacles in providing justice to victims. In order to carry out effective investigations that consider the gravity of the crime and its subsequent persecution, we must recognise social psychology, the amount of time consumed during the investigations, and the victims’ access to justice. A directive order is hereby issued in the name of the Government of Nepal to reform the period of limitation stipulated in Section 11 in the Chapter of Rape”.
Like other countries, a number of sexual assaults cases in Nepal remain unreported due to social stigma, shame, trauma, fear, stigma and intimidation associated with it, besides patriarchal monopoly. The survivors who gather courage and come forward to report the offence do face legal challenges because of weak legal framework, e.g., the statute of limitation, no provision for sexually abuses children to report after reaching adulthood, etc.
The existing Nepali law do not prohibit introducing evidence of the past sexual history of survivor during the trial process in rape cases. It not only affects their legal cases but also shakes their dignity, victimise them further and leaves them vulnerable. Non-existence of a law prohibiting such practice only help the perpetrators escape the law itself. In Nepal, cases of sexual offences often go unreported. If reported, the prosecutions are rare; if prosecuted, proceedings are rarely pursued in a gender sensitive manner leading to nominal convictions. The survivors are often victimized and re-victimized and the offender celebrates impunity.
Nepal witnessed a decade long armed conflict, between 1996 and 2006. During this period a number of human rights violations and abuses took place, including rapes. In 2014, the Government of Nepal adopted a Truth and Reconciliation Commission Act, 2014 (TJ Act) to criminalize rape a serious human rights violation. The National Penal (Code) Act 2017, however, does not criminalize rape as war crime or crime against humanity. In 2018, the Truth and Reconciliation Commission acknowledged 322 cases of conflict related sexual violence. The commission, however, has been recommending amnesty to offenders, including the perpetrators of rape. The statutory limitation further alienates the rape survivors of armed conflict and makes access to justice and reparation difficult for them. While other South Asian countries like India, Pakistan and Maldives have discarded statute of limitations for lodging the complaint of rape, Nepal is still lagging behind.
There is a dire need to revisit and reform the existing laws on sexual violence in Nepal. The existing system is not only making it difficult for the survivors to report and have access to justice, but it is helping the perpetrators in evading the law and encouraging them to abuse and violate more. Some of the articles that need immediate focus include bringing definition of rape in line with international legal standards, provision for gender neutrality for victims and perpetrators, removing ‘The Statuary Limitation’ all together – including conflict-time victims of sexual violence, prohibiting past sexual history of survivors in their legal cases, making rapes committed by state actors as offence of torture. Protection of victims and witnesses and removing impunity to armed forces personnel in the cases of sexual assaults.
“Standing behind predators makes prey of us all.”
About the Author/s:
Zahoor Wani is a human rights defender from Kashmir, India. He has been working with many international human rights organisations, including Amnesty International.
His expertise is in human rights investigations, monitoring and reporting; besides research, campaigning, advocacy, networking and capacity building. He has led the research, campaigning and advocacy for many internationally acclaimed human rights reports, programs and projects. He has vast experience working in armed conflicts and difficult human rights situations. He believes in promoting and protecting human rights for all.
He is passionate about human rights and believes in speaking through his work.