KSL Report rejects influence of traditional common law principles

Kathmandu, January 18

A new research conducted by Policy and Research Centre of Kathmandu School of Law has said that new laws related to the crime of sexual violence must not be influenced by traditional common law principles that place unnecessary burden on the victims of rape.

KSL today unveiled the summary report: ‘Preventing sexual violence in Nepal by harmonising relevant laws with national human rights standards,’ stating that the proposed drafts of penal code and the criminal procedures must not be in any sense influenced by ‘traditional common law principles, which focus on use of resistance and force’.

Member of KSL Policy and Research Centre Pradip Pathak said victims of sexual assault should not be burdened with the onus of proof   of no-consent.

“The requirement of ‘no’ or ‘affirmative permission’ should be the sole constituent of ‘consent’, and otherwise should be taken as no-consent,” he added.

KSL said new penal laws must be made in harmonisation with those international laws and principles.

It further said that the definition of rape must include ‘oral and anal sex’, ‘insertion of foreign objects’ with the specific mention of pro-human dignity definitional elements.

Stating that definition of the victim of rape should be gender neutral.

The report also said that the time limitation for filing of rape case should be extended from six months to one year.

The draft legislation should extend the scope of self-defence to the guardian or other adults in case of the rape of minor, differently-abled or mentally retarded, according to the report.

The report said compensation should be made victim-oriented in accordance with international conventions to which Nepal is a party.

The report stated that the draft legislation must provide for the establishment of an “Interim Relief Fund” and must make arrangements for ‘prompt assistance in the form of interim relief to the victim by the state’.

“The pecuniary penalty levied on the offender should be obtained by the state in the form of penalty.

The current practice of rendering the victim to ‘identify and locate’ the property for the sake of awarding compensation to her must be removed by the courts,” the report said.

It said the state must have a system of providing compensation from the ‘Compensation Fund’.

The report further said the act of rape should not be overlooked only on the ground of having absence of physical injury, bruises and traces of semen, blood stains in and around the genital organ of the victim, said the report.

The report stated that legal proceedings should strictly maintain the privacy of the victim of the crime of rape from the filing of FIR to sentencing of the offender, and even after that if necessary.