An opinion piece by Laxmi Pokharel and Boram Jang, International Commission of Jurists Legal Advisors on Access to Justice for Women
In February 2021 hundreds of demonstrators in Kathmandu dressed in white mourning clothes and staged a mock funeral depicting the “death of justice” in Nepal. It came as a response to a lack of prompt and effective investigation in the rape and killing of a teenage girl. Bhagirathi Bhatta, 17, went missing on 4 February while she was going home from school. Her body was found a day later in a gorge near her village in Baitadi district in western Nepal. There was good evidence to suspect that she had been raped and then strangled.
Similar cases of killings after rape or sexual violence of minors have been reported over the past few years in Nepal and most of the perpetrators remain at large. The rape and killing of Nirmala Panta is another example. Despite public outrage, leading to several days of protests in Kanchanpur, those responsible for the case are yet to be identified. There has been a pattern of police negligence and abuses in the investigation, including the alleged mishandling of evidence and the wrongful arrest after which an innocent person was coerced to “confess” to the crime. Meanwhile, the actual perpetrator has so far escaped justice. This impunity enables not only the perpetuation of similar violence but also erodes public trust in the justice system.
Nepal’s Culture of Impunity for Rape and sexual violence
Nepalese society has been witnessing widespread sexual and gender-based violence (SGBV) against women for a long period of time. The increased number of cases of SGBV against women, including rape cases, in recent years is not just a matter of criminal law. Women who are subjected to SGBV are denied the right to a dignified life, reflected in the guarantees of the Nepalese Constitution and law and international human rights instruments.
The 2015 Constitution guarantees the rights against sexual violence as a fundamental right. The Article 38(3) states, “No woman shall be subjected to physical, mental, sexual, psychological or other forms 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 the law.”
Nepal’s Penal Code has recently increased the sentence to those involved in rape from seven-year to life imprisonment. Sex without consent, including marital rape, is also criminalized by the Criminal Code of Nepal, consistent with international law. Despite the Constitutional guarantees, instances of rape are increasing in Nepal. Many cases of rape and sexual violence go unreported to police because of social stigma, lack of trust in the justice system, and lack of protection of victims. Even so, the statistics in 2019/20 police received reports of 2144 cases whereas 1480 cases were reported in 2017/18. In addition, there has been a spike in rape cases during the COVID – 19 pandemic, including a gang rape of a migrant woman in quarantine.
Media reports show that police are reluctant to file First Information Reports (FIRs) in many rape cases. Where a case is registered, victims are often compelled to involve in the out of court settlement, especially in those cases where such crimes are committed by people in power or committed by those under their protection. The few women who decide to fight for justice do not find usually a favorable environment in the State institutions, including the police stations and courts, due to prevalent social- cultural attitudes internalizing gender stereotypes.
Impunity for perpetrators contributes to perpetuation of sexual and GBV in Nepal. During her visit to Nepal in 2018, the UN Special Rapporteur on violence against women also expressed grave concern about reports suggesting that numerous cases related to sexual violence and the killing of women and girls had resulted in impunity for the perpetrators, despite referrals to the police or a court for redress.
In 2017, the National Human Rights Commission organized a public event inviting different stakeholders that describing how past impunity perpetuates present impunity. Despite credible evidence, those cases of rape and sexual violence during conflict, hardly any case has been thoroughly investigated with the objective of bringing those responsible to justice.
The refusal of State authorities to acknowledge the prevalence of SGBV during the conflict is reflected in the way it defined victims for the interim relief program (IRP). For example, the victims of SGBV and torture are excluded from the definition of conflict victims having access to IRP. This exclusion continues to be reflected in other policies of the state.
Statute of Limitation for Rape is Unreasonably Short
Statute of limitation often prevents women from accessing justice, as it has been made unreasonably short in the Penal Code. The statute of limitation for rape and other forms of sexual violence does not factor in the fear and stigma faced by victims.
Furthermore, although the statute of limitation period for rape and other forms of sexual violence has recently been extended from 35 days to one year in the Penal Code, this period is still too short. The Committee on the Elimination of Discrimination Against Women, in its 2018 concluding observation on Nepal’s sixth periodic report, raised concerns about the statute of limitations, underscoring that failed to take into account the stigma that women and girls face when reporting cases of sexual and gender-based crimes. The Committee said it fosters impunity for such crimes and recommended that the Government “repeal the statute of limitations provisions on the registration of cases of sexual violence in all contexts to ensure effective access for women to justice for the crime of rape and other sexual offences.”; However, the statute of limitation remains on the books in Nepal’s Criminal Code.
The statute of limitations does not comply with Nepal’s obligations under international law, and in particular, disregards the situation of children who are victims of rape and who will typically need more time to tell their stories. Although the law does not require victims to file an FIR as the police can initiate investigation ex-officio, hardly any cases have been investigated by police without victims having themselves reported the case. Thus, too short statute of limitation periods for rape cases impedes access to justice for survivors, particularly in relation to child victims who may find it difficult to raise a complaint before they reach the age of majority and for whom the long-lasting effects of rape and sexual violence are especially acute.
Furthermore, this extended time period still prevents victims of rape during the armed conflict to file cases against perpetrators, because these incidents have occurred more than a decade ago. Many of those instances of rape were crimes under international law that cannot be subject to statutes of limitations. Therefore, the statute of limitations for filing a rape case is contrary to the right to an effective remedy as ensured by Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR).
The Government has taken some positive steps, including an amendment to laws, providing provision for fast track system while handling VAW cases, but the gap between the formal protection and the efforts to provide justice in reality continue to hinder access to justice for victims.
To ensure access to justice for victims and survivors of SGBV and end the culture of impunity, the Government should repeal the statute of limitations provisions on the registration of cases of sexual violence in all contexts, including cases relating to rape and sexual violence perpetrated during the conflict. Those committing SGBV should not be offered political protection and the willful negligence of police to investigate crimes must lead to the accountability of the responsible police officers providing the possibility of reinvestigation on the case.
Furthermore, the Government should also take necessary measures for the effective implementation of a provision of fast track court and continuous hearing in SGBV case to end lengthy and ineffective court procedures. While these measures alone will not bring an end to the scourge of rape and sexual violence, they are a critical first step in bringing redress to survivors.
First published in The Himalayan Times in English and Nagarik News in Nepali.