Statute of limitation in rape case: How long should it be?

While drafting the laws relating to limitations, policymakers should keep in mind the victims' fair chance for justice while at the same also allowing an adequate opportunity for the defendant to defend himself/herself.

Birendra Madai

  • Read Time 6 min.

A case of rape and sexual assault that took place eight years ago has shaken the whole nation to the core. There is a serious concern, resentment, and anger among netizens after the victim revealed through the videos on social media that she had been continuously raped by one of the organizers of Miss Global International who also leads Model Globe Village Consultancy. 

Youths have expressed their rage against rape in front of the Prime Minister’s official residence in Baluwatar asking the government to lift the limitation clause in the rape law. Nepali Congress General Secretary and parliament member Gagan Thapa has urged the government to review the limitation clause. 

Serious concerns have been raised on social media platforms about whether the rape case can be filed in court owing to the limitation imposed by law. 

A statute of limitation is a timeframe within which a victim party has to file a claim. If the time limit expires, he/she is barred from bringing the case forth to the court proceedings. So far in Nepal, time-limiting laws have prevented hundreds of rape and sexual assault cases from being prosecuted. The rationale behind keeping the limitation clause is the difficulty in prosecuting the case after a certain period of time as the witnesses may die or the evidence may be lost. 

The biggest barrier to the victim seeking legal remedy doesn’t lie in the statute of limitations. It lies in the social consequences the victims have to face when they report the cases. 

The philosophy of the statutes goes as deep as offering the offender a life free of purgatory for the rest of his life after some time. After a certain point in life, the would-be defendant can get over the point in time where his/her past offense would not be prosecuted. This allows the offender to live without the ghosts of the past for the rest of his/her life. The defendant can move on with his/her life without the constant fear of being prosecuted. Is this fair? Is this just? 

What the law says

Section 229 of the Muluki Criminal Code says the case must be filed within one year of the incident. The current code came into effect on August 17, 2018, while the incident of rape is said to have taken place back in 2014. It is an established principle of law that no law acts retrospectively. It means that the victim cannot seek remedy as per the current Muluki Criminal Code as it had not been promulgated at the time of the incident. The proceedings have to go on with the Muluki Ain 1963. 

The Act Relating to Children (2018) provides that the suit should be filed within one year of gaining a majority in case a minor is a victim. This statute also doesn’t get attracted and the repealed Children’s Act (1992) has to be looked upon for seeking the remedy. 

It appears that the offender held the victim hostage in a hotel, and transported the girl from one place to another without the consent of her parents. The limitation for these offenses is not defined by the law. These circumstances attract the Human Trafficking and Transportation (Control) Act (2007).  Section 4 (2) of the said Act defines human transportation as if anyone takes a person out of the country for the purpose of buying and selling, and if the person takes anyone from his /her home, place of residence, or takes away the person by any means such as enticement, inducement, misinformation, forgery, tricks, coercion, abduction, hostage, allurement, influence, threat, abuse of power and by means of inducement, fear, threat or coercion to the guardian or custodian and keep him/her into one’s custody or to take to any place within Nepal or abroad or hand over him/her to somebody else for the purpose of prostitution and exploitation. 

The burden of proof also lies in the hands of the accused. If the accused is convicted by the court in the given incident, the judge may pronounce seven to ten years of imprisonment to the guilty person as per Section 15 of the Act. 

According to the legal experts, the Supreme Court may use its discretion and issue an order to carry out a due investigation if the victim steps ahead to file a writ petition in the apex court. The court may also come up with a precedent to redefine the limitation clause of the rape law and may ask the victim to file a case related to rape. Similarly, the doctrine of tolling, which allows for pausing or delaying the timeframe set forth by a statute of limitations, can also be invoked. As per this legal doctrine, lawsuits may be potentially filed even after the statute of limitation has run.

However, judges have total discretion over whether or not to apply this doctrine. So far this principle has not been cited by the judges in Nepali courts. Similarly, Nepal’s Supreme Court has set several precedents which provide that flexibility can be sought in the statute of limitation depending on the circumstances. 

Limitations elsewhere 

In the US, the statute of limitation differs from one state to another. Not all states have a statute of limitation for rape cases. In the states that have, the period ranges between three to thirty years. The state of Minnesota has the shortest limitation of three years. Ohio has 20 years of limitation. Arizona, Delaware, Maryland, Nevada, New York, Tennessee and Virginia have no such limitations. 

In the UK, Nullum tempus occurrit regi (time does not run against the crown) applies in criminal cases and charges can be brought after any duration of time. 

In India, the standard policy for limitation is set under Section 468 of the Criminal Procedure Code (1973). The limitation period differs in accordance with the punishment related to the crime. If the maximum punishment is merely a fine, then the offense has to be filed within six months. If the offense is punishable with imprisonment of one year or less, the offense has to be reported within one year of its occurrence. If the offense is punishable for a term of more than one year but less than three years in jail, the crime can be reported within up to three years. For those offenses, such as rape and murder, whose sentence is more than three years, the crimes can be reported even after three years. 

Right or wrong? 

The genesis of statutes of limitations goes back to the first formation of Roman laws, and their goal is to ensure equilibrium between two parallel interests–maintaining public safety and protecting the defendants from arbitrary and wrongful charges. With the passage of time, there is a high chance that memories fade away, evidence gets eroded or lost and witnesses become unreliable or difficult to locate.

Often stigma, shame, intimidation and trauma prevent the victims from coming forward. The victim’s reluctance to report owes to the fact that they are often blamed, boycotted, ignored or dismissed by the police authority, the assailants and even the community. 

The biggest barrier to the victim seeking legal remedy doesn’t lie in the statute of limitations. It lies in the social consequences the victims have to face when they report the cases. 

The countries which have increased the limitation clause or have no limits in filing rape cases face yet another serious hurdle because the crimes are very hard to prosecute. According to America’s Bureau of Justice Statistics, although the accused and accuser know each other in 88 percent of rape cases, the courts often find it difficult to decide whether sex between them was consensual or not. As a result, only six out of every 1000 accused end up getting a prison sentence, according to Rapne, Abuse and Incest National Network (RAINN), an anti-sexual-violence group in the US. 

On the other hand, feminists and civil rights advocates who oppose the limiting laws argue that short statutes of limitations often place an overwhelming burden on the victims and let the sexual predators enjoy impunity. The avalanche of #MeToo accounts in the previous year clearly exposed how few offenders have been held liable for their offenses. 

Thus when you evaluate the relevance of statutes of limitations, it largely depends on whose perspectives you share. But there is no red line that we can draw to ensure that the policy protects everybody. Thus, while drafting the laws relating to limitations, policymakers should keep in mind the victims’ fair chance for justice while at the same also allowing an adequate opportunity for the defendant to defend himself/herself. 

In the case of Nepal, the statute of limitation in rape and sexual assaults is too short and it needs to be amended as soon as possible. There is no doubt about it. But completely lifting the limitation might also lead to a new set of problems instead of helping solve the existing ones. 

Birendra Madai is a student of BALLB at Nepal Law Campus.

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