Anjana Dhital

The follow up of the latest rape case in far western part of Nepal involving a 12-year old girl who was killed after being raped last Wednesday has shown that the suspect was guilty of another rape prior to this offence. About a month back, Rajendra Bohara, the suspect in the present case, had raped a 14-year old girl. However, the offence was not reported to the police.

Contrary to the spirit of criminal justice system and Nepali legal provisions on rape, the offence was silenced by a piece of paper symbolizing mediation between the parties (victim and the offender) to settle the dispute. Although the crime was a severe one owing to the age of the victim, the case went unreported, thereby letting a heinous criminal walk freely in the streets without any remorse and liability of punishment. This is just one example out of many such rape cases whereby the victim is compelled to compromise her dignity and the perpetrator is offered with a chance to commit such criminal wrongs again.

Examples of mediations in rape cases in Nepal

In 2018, the police in Triyuga Municipality of Udayapur district in eastern Nepal had attempted to settle a rape case brought before them through mediation. It was only after the victim denied reconciling with the perpetrator, the police had to register the case and initiate consequent investigations. In the same year, when a 22-year old female was raped in Durbar Marg, Kathmandu, the police personnel were once again persuading her to negotiate with the perpetrator rather than registering a complaint for further investigation.

These are few cases which had been highlighted by the news media. If we are to dive in and conduct a thorough research, the numbers of rape committed each day yet unreported, will come as a huge shock to the whole nation and portray the actual reality of female safety in Nepal.

Nature of the mediations

The mediations are either voluntarily arranged by the guardians of the perpetrators and victims or facilitated by the police officials. In the former case, if the mediation has been proposed by the perpetrator’s side, it is done to protect the perpetrator from potential punishment. Similarly, oftentimes, the victims’ families also initiate such mediation terms with an intent to prevent possible threat to their so-called ‘reputation’ in the society which according to them, rests solely on their daughters not being brutally raped by someone.

Shockingly, the police officials themselves are found deliberating for reconciliation between the parties. This usually happens when the police has been politically pressured by superior authorities or financially induced by the offender to avoid case registration. Whatever the driving factor might be, the trump card of ‘a female’s reputation’ is always placed on the table in order to serve the individual political and financial interests of the people concerned in the issue. Besides this, the lengthy and complicated court procedures are also considered a crucial reason behind unwillingness of the aggrieved party to report the case to the police.

Mediation fails to deter the perpetrators and further aggrieves the victim

The underlying objective of the criminal justice system has always been to punish the offender and render justice to the victim. In context of Nepal, along with the enactment of the Sentencing Act, 2017, broader alternatives to punishment system have been introduced which apparently shows how Nepali legal system is inclining towards reforming and discouraging the offender (from committing future crimes) rather than being strictly retributive.

However, the very idea of reformation applies only in cases where offences of lesser gravity have been committed and the offender has the potential to be reformed on grounds of his/her character traits. This means that mitigation of punishment or impunity based on reformative theory cannot supersede the gravity of the crime. Therefore, in criminal matters, the notion of ‘mediation’ to settle disputes is prima facie contended. And, in offences such as rape specifically, it is strongly discouraged. In 2015, the Indian Supreme Court had declared mediation in rape cases illegal on the same account.

The rationale behind this is that rape is not a material or financial offence wherein the degree of harm is negotiable through mediation. It is a moral offence that openly vandalizes the dignity of a person. Thus, if mediation is permissible, the integrity of the victims is conveniently compromised. This goes on to show how such grave loss of a victim is still trivial in the eye of law. As a result, from a victim’s vantage point, justice remains unserved.

Similarly, in relation to deterring the same perpetrators from repeating those offences or other potential offenders from committing such crimes, mediation provides an easy platform to commit rape and get away with it effortlessly as the commission of the offence would not amount to any degree of punishment. Unaffected by the fear of punishment, the offenders will keep committing the prohibited crimes. An example of this is the latest rape case of 12-year old minor that is suspected to have been committed by someone who had raped another minor just a month before irrespective of the mediation binding the perpetrator not to repeat the same.

Hence, prohibition of mediation in rape cases should be strictly enforced as this defeats the purpose of criminal justice system and is clearly a crucial factor behind the staggering rates of rape in Nepal.

The writer is pursuing BALLB degree at Kathmandu School of Law.

Published on 6 October 2020