Perhaps rape offences are the only offences in which victims are blamed more than the perpetrators. Not only the victims but the victims’ families, their close relatives and even friends have to suffer from stigmatization. It is easy to drag women down; you just have to question her character. The false notion of protecting the purity of women shows as if the purity and the family prestige lies in the vagina of women.
History and myths have evidence. Lord Krishna had 16,108 wives and still he is celebrated as god. Lord Ram made his wife Sita walk on fire to test her loyalty, but still he is celebrated as one of the noble men. Arjuna shared his wife with his brothers and yet he is still celebrated as the man of courage.
These stories, though only stories, have shaped our minds since our childhood and they are embedded in our culture. So we tend to consider women as a commodity from early on.
Violation of rights
Truth of the matter is that rape offense is the violation of the fundamental rights–right to live with dignity, right to freedom, right to equality, right to privacy, and most importantly right to women–guaranteed by the Constitution of Nepal. The Nation Penal (Code) Act (2017) mentions punishment to the offender based on the age of the victim. If the victim is a girl child below 10, the punishment is imprisonment of 16 to 20 years, 14-16 years if the victim is a girl child ten years or above ten years of age but below fourteen years of age, 12-14 years if the victim is a girl child who is fourteen or above fourteen years of age but below sixteen years, and 10-12 years if the victim is a woman sixteen or above sixteen years of age but below eighteen years of age. Likewise, the imprisonment is for seven to ten years, if the woman is eighteen or above eighteen years.
According to the classification of offense on the basis of bailment, non-bailable offenses are those offenses for which bail cannot be granted and the case must be proceeded by keeping the accused in the detention. Offenses that are punishable by imprisonment for more than three years are known to be non-bailable offenses.
Even according to the classification of offense on the basis of grievousness, this offense is categorized as heinous and serious. And according to the classification of offense on the basis of morality, it is categorized as offense involving moral turpitude. But we can witness perpetrators getting bail even for such grievous offenses. The rape-accused cricket player Sandeep Lamichhane was permitted to go abroad to play for the Nepal cricket team.
In the case of Durgadatta Bhatta v Nepal Government, the bench of Biswombhar Prasad Shrestha and Hari Prasad Phuyal said this: “The nature and sensitivity of the incident, young age of the victim, physical and mental immaturity, physical and mental disability, low level of educational awareness, angst of damage to family and social reputation, geographical vulnerability, low economic condition, fear of being stigmatized in the society due to the cultural beliefs and fear of being more victimized as well as the physical and mental disturbance that the victim may experience after the incident and due factors such as the status of the perpetrator in the society, crime such as rape which is directly linked with the dignity and existence of women demotivate the victim to file complaint. Therefore, the judges should also take seriously the realities of the society and the background and environment of the victims and victims of such heinous crimes.”
The power and the position a perpetrator holds makes a huge difference. Our society tends to demotivate and defame the victims and further victimize the victims if the perpetrators are powerful people.
In the case of Nepal Government v Khil Bahadur Adhikari, the Supreme Court has interpreted that since rape is done in a private place the evidence is the victims themselves.
The high court of Jammu and Kashmir and Ladakh in a recent case of Sunil Kumar v UT of J&K decided that rape is the most hated crime in the society which leaves a scar upon the most cherished personality of a victim, and, “therefore, no self-respecting woman would normally concoct a story of rape.” The court even interpreted that as such crimes are increasing the courts should not show leniency to the accused. The court did not grant the bail to the accused.
The Vimsen Gole v Nepal Government case interpreted that there must be two elements for rape–sexual intercourse and absence of consent. “No is not just a word, but a full sentence in itself. No means no, and when someone says so you stop,” goes a very powerful dialogue from the Hindi movie Pink. Even if the partner agreed beforehand but is denying during the time of intercourse, even if she/he is promiscuous, ‘no means no’.
Court demands for the sign of struggle if an adult woman is raped. How can someone expect to have the sign of struggle if it is done under due influence? What if the person had made a bogus promise to marry or have a serious affair? What if the person was in power and had the upper hand over the other person?
Wikipedia defines ‘undue influence’ as typically perpetrated by a person who is trusted by the victim and is dependent on them for emotional and physical needs.Undue influence is a process, not a single event. A manipulator may spend weeks, months, or even years before successfully unduly-influencing their victim.
People tend to defend the perpetrators by saying, among other things, these: He is being framed. These days, women are blaming men if they do not fulfill their wishes. They did it in consent while they wanted pleasure and now just because of some conflict they’re complaining, so on and so forth.
But the truth is consent of physical relationship based on false marriage is rape, because the consent was given by the partner believing that the other partner would marry her. So the consent here doesn’t become free consent. So there’s no sign of struggle here.
In the case of Sapana Pradhan Malla and others v Office of Prime Minister and others, the Supreme Court decided that if the offenders committed offense with the women involved in prostitution were sanctioned with less punishment this contradicts with the right to equality. But even today there are unreasonable laws such as less punishment in case of marital rape. Why?
Justice for the rape survivors or the victims is still elusive in Nepal. It has almost been five years to rape and murder of Nirmala Panta, but the perpetrator is still walking free. One wonders what they think of themselves when they look into the mirror, or into the eyes of their mothers and sisters? One wonders if they ever feel guilty. Normalizing such offence is developing rape culture. Not standing up to the wrong is promoting rape culture.
Blaming the victim and trivializing sexual offence by saying “she asked for it and you know boys will be boys”, tolerating sexual offence or encouraging to tolerate, defining ‘manhood’ as dominant and sexually aggressive and ‘womanhood’ as submissive and sexually passive, blaming their outfits, restriction to go out, alerting women not to get raped instead of alerting men not to do so–all these are the examples of rape culture.
Normalizing rape offence is developing rape culture. Not standing up to the wrong is promoting rape culture.
According to Nepal Human Rights Year Book (2023), 4,228 people faced some kind of rights violations in Nepal in 2022. The report shows 605 incidents of rape, 145 cases of attempted rape and 42 incidents of sexual abuse. In 2021, the number of victims was 3,417, which was 2,606 in 2020.
This shows that despite having more laws to support women, cases of sexual violence are increasing. This is because we are failing as a society.
Fast track courts can be a solution to lessen the burden in such cases. Fast track court not only makes it easier for victims but also helps prevent manipulations of facts and evidence. It would also lessen the offense. From our side, we, both men and women, need to start by avoiding using words degrading to women, avoiding conversation that objectifies women and by dismantling this notion that rape happens because girls and women want it.
Shreena Nepal is a student of BALLB at Kathmandu School of Law.