In the patriarchal society of Nepal, where cases of rape and sexual violence against women and girls continue to rise, women’s safety is of utmost concern. Safe environment for women and girls can fairly be considered a privilege. Despite having stringent laws against sexual violence in place, rape and other sexual violence is perennial. The statistics present a distressing story. The occurrence of rape is escalating over the years. In the fiscal year 2019/20, approximately 2,144 rape cases and 687 attempt-to-rape cases were registered, while many go unreported. In the past few months, the country has witnessed exponential surge in rape cases and mostly the victims are found to be minor girls. As per the data submitted by Nepal police, 60% of rape victims are aged below 15 years, particularly between 11 to 15 years.
It is a common perception of the society that women are unsafe outside their homes. They are often told to dress “modestly”, to stay in at night and take measures to prevent one from getting raped or sexually violated. Thus, with the nationwide lockdown, crimes against women were anticipated to diminish. While the rate of other crimes has fallen during the lockdown, rape has continued to shoot up. This is because the perpetrators in the majority of the cases are victim’s relatives. Women and girls are not safe inside their own houses as well. It is found that rapes are usually done by the persons known to the victim. General statistics of rape suggests that 93% of rapists are people familiar to the victim and only 7% rapes are committed by unknown persons.
The youth activists have come out on protests against the rampant occurrence of sexual crimes demanding justice for the victims of rape. The activists were compelled to come on streets due to the uncontrollable incidents of rape. They demonstrated a flash mob in Maitighar Mandala raging against the incessantly rising rape cases all across the country. Further, the alarming number of rape cases on everyday basis has raised serious concerns and even prompted deliberations on capital punishment to the perpetrators of such heinous crime. The matter was taken up in the parliament as well, where many parliamentarians unanimously expressed that perpetrators of rape should be given severe punishment which may include death penalty. Women lawmakers are of the view that an individual committing such heinous crime do not deserve sympathy. Moreover, the women parliamentarians have formed a committee to review current laws with respect to rape along with international commitments to recommend encompassing capital punishment for the crime of rape.
The laws with respect to rape are fairly stringent in the country. However, the problem lies with the implementation of these laws and politicising of the rape cases. The incompetency of police to carry out a proper investigation is a huge hurdle in the rape cases. Victims in most rape cases fail to receive justice due to lack of evidence. Considering the rate of acquittal in the rape cases, it is still difficult for the victims to get justice even if the laws are changed. The systemic violence in Nepal’s criminal justice system shackles even the most effective laws and it remains largely underutilised. Likewise, former chief Justice Sushila Karki also opines that it is not the insufficiency of laws but the enforcement that requires being more effective. She further states death penalty is not the solution as it has not prevented rape in countries India and Bangladesh.
Nepal is party to and has ratified major international human rights conventions. Though these conventions do not expressly prohibit capital punishment, the Constitution of Nepal does. Article 16 (2), right to life with dignity states that no law shall be made to prescribe the death penalty. This is a commendable step and is particularly important for rape cases as well. Currently, there is a public outcry for punishing rapists with the most severe of punishments with many even voicing their desire to see rapists hung and sentenced to death. However, the death penalty is not a viable option for rape cases due to various reasons.
Capital punishment does not necessarily act as a deterrent as there has been no conclusive proof towards this point. The threat of capital punishment can also cause rape offenders to commit crimes of murder and mutilation in an effort to ensure that the victim is unable to identify them or file a complaint. Rather than serving as a deterrent, capital punishment could lead to more heinous crimes.
The protest for capital punishment is driven more by public outrage rather than serious consideration of the solutions to bring about a change. Most governments that adopt this punishment do so to advance their own public image rather than considering the judicial implications of their decisions. The judiciary is another aspect to consider when thinking of implementing capital punishments. Most judicial actors would not have consensus on what type of punishments would qualify for capital punishment and whether the accused are even guilty. In the current state of the Nepali judiciary, equipping the judiciary with the power to impose the death penalty could cause more harm than good. Furthermore, a retributive justice system is not a sustainable justice system. The judiciary would be faced with increased pressure to award capital punishment on a few cases that spark public outcry as opposed to handing out an even sentence in every case. This is a slippery slope as with every passing case, the judiciary will render itself hostage to public opinion rather than carrying out its job to dispense justice without any undue influence.
Undue influence also poses another problem with regard to victims of rape. In majority of the rape cases, the perpetrator is usually a person known to the victim such as a family member. The threat of the death penalty may cause hesitation for the victim to report the case against their own family member and a victim may face further pressure from their family members to suppress the issue.
Lastly, rape must not be equated with death. The patriarchal notion that a woman’s life is destroyed upon rape needs to be challenged. It is this patriarchal society that forces the belief that a woman’s life is destroyed when she is sexually assaulted and she has no place in society anymore. Feminists have come out strongly against this notion and believe that “rape is a tool of patriarchy, an act of violence, and has nothing to do with morality, character or behaviour”.