Nepal | September 30, 2020

OPINION: Sine qua non of legal proceedings

Victim’s testimony

Durga Innani
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Recent news of the court’s decision on a case of sexual violence-filled me with an immediate sense of contemplation. The judge announced a one-month jail term and a penalty of Rs 63,000 to a woman for filing a false case charging a man of rape. This verdict is one of a kind and exemplary with regards to discouraging false allegations of sexual assault in the future.

The ‘then’ accused had been in detention for the past seven months after the 12thgrade student filed the FIR on November 17, stating she was raped in a hotel room. The statement was backed by two witnesses. But having changed her statement during the trial, unable to sustain the charge sheet claim, switched her position from the victim to the offender. On the grounds of an insufficient claim for indictment, the case was dismissed. As mentioned in the news, the woman has been penalised for misuse of the criminal justice system.

In cases of sexual violence, one cannot overlook the possibility of mala-fide intent. False allegations made with malice to humiliate, gain ransom or tarnish someone’s image should be discouraged and also punished because justice and dignity aren’t limited to any one gender.

In Nepal, however, this is not the first time that the complainant has recanted a statement during a trial. Many such stories have previously been reported in the news too where the victim succumbs to intimidation or inducement. In many cases, victims turn hostile in their testimony during the trial. Hostility is one form of perjury, and victim-witness turning hostile is a common thing happening in the criminal justice system. Due to retraction, conviction rates are low, and the victims fail to get justice.

The onus of proof is on the prosecutor; hence, one has to adduce evidence to prove the guilt of the accused. If the complainant turns hostile or the victim is dead, it becomes the prosecutor’s duty to establish the charges based on evidence. In the failure to do so, the victim might be deprived of justice. The Government of Nepal is the plaintiff and the prosecutor in rape cases. The victim, also, has the privilege to additionally appoint her legal counsel to defend her interest.

Will the aforementioned verdict, henceforth, prevent victims from backing off or changing their statements, which is needed or to discourage them from filing the complaint, is yet to be seen.

Rape generally refers to non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress. Accordingly, the two major constituent elements in rape or sexual assault are ‘the use of force by the perpetrator’ and ‘the absence of consent on the part of the victim’.

In a case of sexual violence, the victim-survivor of the crime is the prime witness, and hence, her or his statement becomes important. The General Provisions relating to evidence, Rule 63(4) of the International Criminal Court states “…. a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence.” This highlights the importance of the victim’s testimony taken under the oath.

The testimony of the victim-survivor of the crime is the sine qua non of legal proceedings. But when the victim is made hostile or out of court settlement is encouraged, the perpetrator fails to get convicted or escapes with minimum compensation to the victim. Thus, in the aftermath of the crime, victim protection becomes crucial. In addition to that, providing medical, psychological, psycho-social and legal counselling to the victim becomes equally important. Apart from that, rehabilitation mechanisms for the victim-survivors are important.

The pursuit of justice is not easy especially in matters of sexual violence. Most cases go unreported due to fear and lack of awareness. And when complaints are filed, there are instances of them being subjected to recantation due to intimidation and family pressure. The stigma and victim-blaming in our society often discourage victims to fight against the atrocities.

The legal justice system must assist the victims to fight the fear, confusion and dread in their hearts. To protect the victim, in Nepal, the Crime Victim Protection Act, 2075 (2018) came into force on September 18, 2018. The Act enacted by the Federal Government ensures the right to justice of the victims in criminal investigation, adjudication of cases, compensation and social rehabilitation. Chapter 2 of the Act discusses the ‘Rights and Duties of the Victims in the Criminal Justice Process’. The Act has accorded 20 rights such as the right to privacy, information relating to judicial proceedings, safety, expressing an opinion and right of compensation and social rehabilitation.

For the purpose of this Act, section 21 of Chapter 2 entails four duties of the victim. 21c of the Act states “To refrain from failing to appear before the investigating authority or court to save the person involved in the offense, or to refrain from making a statement, deposition or submitting any evidence for that purpose even upon being in appearance.”

Thus, as a victim, it becomes important to understand that along with the rights, the victim also holds duties. And in failure to perform the duty, the victim might harm one’s chances of getting justice.

Sexual assault is an intensely traumatising event. The humiliation and fear post the incident, furthermore, traumatises the victim. Taking into consideration Nepal’s conservative society that often faults the victims and the possibility that victims turn hostile, extra sensitivity is required. Acknowledging the vulnerability in cases of sexual violence, the State should also work in firmly executing the rights as mentioned in the Crime Victim Protection Act, 2075 (2018) to discourage the environment of intimidation and hostility and foster a safe environment for the victims of the crime. For determining the innocence and guilt of the accused, cooperation and truthful testimony of the victims are essential.

Besides, in instances where the State fails to provide the rights and adequate treatment that the victims are entitled to, measures should be taken and instructions should be made to protect the victim, witness or another person at risk on account of testimony, and arrangements should be made to provide immediate legal and psychosocial counselling service to the victim-survivor, especially when there is recantation in a statement.

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