Contextualizing sexual violence and impunity in Nepal
THE past few years have seen a marked increase in attention to violence against women in the Nepali public sphere. Gender Based Violence (GBV) usually reported in the Nepali public sphere includes sexual violence, domestic violence, dowry related violence, accusations of witchcraft, trafficking of women and son preference. While there are claims that GBV, including sexual violence, has increased since 2006 – the post-conflict period – the absence of any nationwide baseline survey makes it difficult to establish the veracity of such claims.
What reports do exist are of varying quality and focus on different districts, population groups (ethnic, caste, region, age, religion, etc) and different time periods. Extrapolating from such studies for nationwide trends is problematic. However, there does appear to have been an increase in reporting in the media and in the number of police cases, arrests and prosecutions of GBV – all of which should be viewed positively. But it is unclear whether the number of GBV victims has increased and/or that more victims/survivors are reporting crimes, and/or more crimes are being pursued through the criminal justice system and/or if the media is more inclined to report such incidents. It may be a combination of all of the above.
The Government of Nepal has in recent years introduced numerous laws, policies and initiatives to combat gender based violence, which includes sexual violence.1 Despite progressive laws, policies and action plans, there are authoritative reports that have documented widespread incidents of violence against women. According to the Nepal Demographic Health Survey (NDHS) which undertook a large-scale population based survey of over 12,000 women, 8900 in rural areas and 3700 in urban areas in 2011, 21.5 per cent and 12.3 per cent of women aged 15-49 experienced physical and sexual violence in their lifetime).2 Further, according to a 2012 Government of Nepal report on GBV in six rural districts in a household-level cross-sectional survey of 900 women aged 15-59, about 48 per cent of women have experienced gender based violence in their lifetime, and over 25 per cent in the last 12 months before the study.3
Previous studies in Nepal have identified legal subordination, economic dependency, cultural obligation and women’s social position as key factors driving GBV with lack of autonomy, education and knowledge of sexuality, men’s perceived entitlement to sex, marriage practices (particularly early marriage), the dearth of family and legal support to women and the husband’s use of alcohol as specific reasons.4 Importantly, causes for the continuation of violence relate to larger issues of Nepal as a patriarchal society, social norms and values, and more often than not the solutions that are offered are ‘consciousness raising’.
The latter has been a much talked about remedy in most reports of GBV in Nepal, including the first ever mapping of GBV in the country – the 2010 preliminary mapping undertaken by the Nepali NGO Saathi with the support of the Asia Foundation and the Department for International Development, UK.5 Thus, even while impunity is mentioned in the 2012 Government of Nepal report cited above, the finding emphasized in the report is low knowledge of GBV laws and services available to survivors of GBV.6 Impunity as a major problem in seeking justice for GBV in Nepal is often missing in such reports as illustrated by the CREHPA and University College London 2013 publication ‘Tracking Changes in Gender Based Violence in Nepal’.7
Within the South Asian context, Nepal is more often than not viewed as an outlier in a subcontinent central to the colonial project. Thus, the historical experiences of women in Nepal seem remote from those of other women in South Asia. From colonial laws and their aftermath, the violence and trauma of the 1947 partition and the formation of Bangladesh in 1971, and the shaping of gender and sexuality in the interstices of race, nation and empire as a whole, women in Nepal appear to stand aloof from this unifying gendered history of nations in the South Asian subcontinent.
There is a politics to this representation of Nepal of never having been colonized at the national level. The insistence of Nepal’s unique status in the South Asian subcontinent holds some empirical validity but nationalist discourses of ‘independence’ and ‘sovereignty’ mask the constraints on Nepali political elites imposed by British imperial forces in the South Asian subcontinent. This nationalist rhetoric also makes irrelevant contextualizing Nepal’s historical changing self-understanding of itself vis-a-vis the growing power of the British just across the border and the consequences this had for the structuring of gendered relations in the country.
The widespread pre-1950 image of Nepal as a ‘fossil’ further negates the need to consider its history during the rule by the Ranas who sidelined the monarchy from 1846-1951 as part of South Asian history during the colonial era.8 Such imagery further underplays the effects on Nepal of the post-colonial histories of neighbouring countries of India, Bangladesh and Pakistan.9 The impact of this history and these dynamics on women, violence, sexual violence and impunity in Nepal remains to be closely analysed.
Up to 2008, Nepal’s foundation as being ‘the only Hindu kingdom in the world’ had not been contested. It is important to note the foundational laws and the strict regimenting of a national caste hierarchy based on notions of purity in a project of Hinduization following the unification of Nepal in the 18th century. While seemingly a logical internal project of state-building by King Prithvi Narayan Shah following the consolidation of dozens of small principalities through diplomacy and military force, the external conditions of his initiatives are important to understand.
More specifically, Prithvi Narayan Shah’s consolidation of principalities occurred in the face of the advance of the British East India Company in northern India. If the Malla kings of the Kathmandu Valley (12-18th century) had previously constituted their territory as morally superior to the Muslim-contaminated parts of the southern South Asian region, the nationally proclaimed unifier of Nepal, King Prithvi Narayan Shah had sought to establish Nepal as the moral economy of the Hindu world – ‘true Hindustan’.10 This was in direct contrast to the degenerate cow killing and eating India (already tainted by Muslims) being taken over by the British.11 Further, while Jang Bahadur may have been influenced by Napoleon’s codification of law in the making of the 1854 Muluki Ain – the country’s first civil code – the ‘Hindu’ laws regimenting a strict caste and gender hierarchy reflect this basic ‘true’ Hindu foundation. Thus, the legal foundations of Nepal are very much part of South Asian history during the colonial era.
The consequences of this legal structure are clear. The fixed caste hierarchy with concomitant notions of purity – importantly incorporating ethnic (Janajati) groups as well ‘caste’ groups – strictly controlled sexual relations. Provisions that regulated sexual intercourse with women from higher varnas sat with specifications of those women who are bhogya – open for public consumption12 – by default those of lower caste (and ethnicity) now structurally vulnerable to sexual violence. The implications of such a history are evident in the oft-repeated fact that though much of the sexual violence and rape was committed by security personnel in rural areas against women of marginalized groups, the rationale that Maoist sympathizers tended to be from this population holds strong.13 But in the midst of illiteracy, poverty and remote locations, that Dalit women were more vulnerable than high caste women and ethnic groups during the conflict14 and that Janajati women have said that they feel they are more vulnerable to rape,15 reveal the deep roots of vulnerability for women from marginalized groups and impunity for certain men in Nepali society. There are many such structural factors that, for example, made the emblematic case of Maina Sunuwar, a poor Dalit girl in rural Nepal, particularly vulnerable to rape, torture and extrajudicial killing during the conflict.
The emphasis here is that the impunity – exacerbated during civil strife/insurgency – has to be situated in the history of an exclusionary state built on structured inequalities and power relations. The modern state of Nepal has its roots in the Rana and Shah rule of Nepal based on politics and power controlled by Hindu, male, hill elites, centred on patronage structures, weak, if any, differentiation between personal and state property and a rule of law from which the powerful are exempt. These governance structures and processes are evident today and have expanded and strengthened to varying degrees during the transition period to further entrench impunity. This is the context in which Pokhrel and Sharma’s statement rings so true: ‘There is a greater scope to be held liable for the killing of a cow than for a woman survivor of rape and torture to obtain justice in Nepal.’
The current day manifestations of a legal and political system founded on notions of men’s control of women’s sexuality, framed according to ideas of honour, sexual purity and chastity instead of bodily integrity, are manifold. For example, until late 2015 legal provisions that resulted in the exemption of men from punishment included limiting definitions of rape (only penile-vaginal penetration), and a 35-day statute of limitations by which to report rapes. In this context, the recent changes are a welcome step.
Many issues, however, still remain. These include: the reference to forced sexual intercourse (jabardasti) instead of rape (balatkar) which necessitates evidence of force and signs of a struggle to prove non-consent, the under-reporting of sexual violence during the conflict, linked to the lack of attention given to the topic by the media, human rights defenders and state institutions; a lack of awareness of the existing justice system; illiteracy, geographic remoteness, dearth of medical statistics, social prestige and honour issues, informal community practices and a lack of security for victims and their families. The problems of obtaining justice for sexual violence victims of the conflict are located in this law system, a central component of which is the 180 days statute of limitations on reporting (increased from 35 days). Consequently, while the TRC has made rape a non-amnestible crime, the point remains mute given the statute of limitations.16
Also to be noted is the politics around the establishment of the TRC (Truth and Reconciliation Commission).17 Set up by politicians, the TRC Act in its current form gives selective amnesty to those alleged to have been responsible for gross human rights violations and it gave broad powers of reconciliation to itself. The result is that victims will be forced to give up their right to justice as part of the reconciliation process with the commission empowered to undertake mediation between victims and perpetrators even in the case of rape. While the Supreme Court in 2015 rejected the possibility of amnesty for perpetrators of serious human rights abuses,18 continuing the positive role played by the judiciary in promoting and protecting human rights in Nepal as will be discussed below, there is a history of the political elite during this transition period, overriding legal judgments in the name of the peace process and consensus. Thus, the challenges for women to get justice are further exacerbated by an insistence by political party elites that only the TRC deal with conflict related cases as pursuing cases via the regular criminal courts runs the risk of threatening the peace process. The result is police refusal to register FIRs.
There is a history to the formation of commissions as political strategies of male, state elites. A 2012 report by the International Commission of Jurists analysing the two arguably most important commissions in the post-1990 era related to human rights – the 1990 Mallik and 2006 Rayamajhi Commissions set up to investigate the deadly suppression of protests and the loss of lives and property after the 1990 and 2006 democracy movements – contains relevant insights. The report argues that the commissions are weak alternatives to criminal proceedings, utilized as a means to maintain the status quo, with little interest in redressing wrongs of previous regimes and preventing the recurrence of violations and injustice.19 The larger repercussions of such initiatives are that these commissions have ‘promoted impunity by diverting investigation of human rights violations and crime through the criminal justice system into a parallel, ad hoc mechanism vulnerable to political interference and manipulation.’20
The TRC as a government instituted mechanism further needs to be situated in the legislation highlighted by Sharma and Pokhrel21 – the Army Act, Police Act, Armed Police Act and the Public Security Act – all of which guarantee impunity for perpetrators under the assumption of such acts having occurred in good faith or while discharging their duties. The regular defiance by the Nepal Army of Supreme Court decisions and non-cooperation with police in criminal investigations, further needs to be situated in an analyses of the increased autonomy of the army since 2006 – neither under royal nor meaningful civilian control.22 The recent changes that now bring the army under the jurisdiction of civil courts are thus ground-breaking.
Also noteworthy is the long history of Indian and Nepali military ties and the concomitant strong influence of the Indian Army on its Nepali counterpart. The history of those ties is inextricably linked to India’s perception as inheritor of the mantle of the British Raj in the subcontinent, its own security concerns, and its ostensibly ‘big brother’ role in Nepal. With a long history of Indian military training and equipment for the Nepal Army, along with the tradition of honouring each other’s chiefs by conferring the honorary rank of general, the role of the Indian Army in the perpetuation of sexual violence and impunity in Nepal – as well as inside India and the rest of subcontinent – requires further attention.
It is also important to look away from state forces, to the former Maoists as a military as well as political force.23 Despite the scale of sexual violence against Maoist women in state custody, Maoist party leaders have shown a lack of interest in the post-conflict period to bring perpetrators of sexual violence to justice. A recent study of the memoirs of female ex-combatants has shown the extent to which Maoist women were aware of state sponsored sexual violence; Maoist women had a widespread fear of rape during the conflict, hoping for death rather than rape. For example, Devi Khadka – who became minister during the early period of the post-2006 transition – is famous for making public her gang rape in detention during the war and vowing revenge on the battlefield. Khadka had hoped to make security forces shoot her dead before her rape, but that did not happen.24 A fear and reality of female Maoists during the war, the Maoist party has done little to secure justice for these women in the post-conflict period.
Beyond the specifics of the conflict, we need to look at the functioning of impunity in everyday settings. This includes the unwillingness to register FIRs by the police25 and the vectors of caste and gender26 in the specific functioning of police as well as community initiatives. Other practical issues include the nature of Nepal’s topography and access to hospitals with equipment and expertise to conduct necessary physical exams and forensic tests. Wasti offers a devastating critique of the manner in which the government has not invested in medico-legal and forensic investigation as basic foundations for the pursuit of justice for victims of sexual violence.27
However, there are positive steps being taken by different units of the government. More specifically, what is evident is the positive role of the judiciary in securing rights for women. From the districts courts to the Supreme Court, key decisions have been made by the judiciary in securing justice for victims of sexual violence and establishing laws to promote and protect the rights of women. However, it is in the face of the positive role of the judiciary that impunity is most starkly seen in Nepal, including the refusal of the army to comply with Supreme Court decisions as documented by Sharma and Pokhrel.28
The women’s movement in terms of initiating legal cases that resulted in the landmark Supreme Court decisions – including marital rape and the extension of the 35-day statute of limitations on rape – has been critical. However, Tamang and Pudasaini point to the problematics of activism for women’s rights in the interstices of foreign aid, the state, the extended transition period and dominance of the women’s movement by upper caste, elite women primarily funded by foreign donors.29
The depoliticization of women’s rights and activism and its effect on the women’s movement is an issue that has been periodically raised in Nepal. It was made most obvious in the 2012 debates that took place over the government’s deletion of references to ‘structural discrimination emanating from socio-cultural traditions’, the ‘Hindu caste system’ and ‘economic and political domination’ of ethnic groups in the draft of the United Nations Development Assistance Framework (UNDAF) for 2013-17.30 The retention of ‘patriarchy’ in the midst of the deletion of references to ‘structural discrimination’ raised questions of the sanitization of the concept of ‘patriarchy’ in the state and development ‘male-streaming’ of women’s issues. It also clearly reflects the weakness of the women’s movement – while the Janajatis and Madhesis demands for rights appear a threat to the state (hence the above word changes), this appears not to hold true for women.31
It is important to understand the deep structural roots of sexual violence and impunity in Nepal in the interstices of Nepal’s colonial and post-colonial vectors. There are real challenges that exist in the struggle for justice for victims of sexual violence. The issues are complex and demand attention to the dynamics of activism as well as the structural, institutional and other political forces that resist change.
The lack of importance given to women’s bodily integrity is rooted in the structuring of women as the personal property of men in the foundational framing of the country’s civil code – as pointed out by Pokhrel and Sharma.32 The logic is reflected in the equal citizenship debates today for women and Madhesis after the promulgation of the new constitution, but the interconnection between the exclusion of rights for the two groups is often missed. Since the Nepal Citizenship Act of 1963 that imposed clauses of being of ‘Nepali origin’ and speaking ‘Nepali language’ as a true test of ‘Nepaliness’, the Madhesi population’s citizenship claims have been viewed with suspicion by state officials, in comparison to hill people and Nepali speakers.33 Not only has official nationalism relied on an anti-India sentiment, state-defined security terms have largely labelled Madhesis as being the fifth column, collaborating with neighbouring enemies.
The reluctance of high caste, hill men in power to grant women equal citizenship stems from a fear that given the custom of marriage across the border in the Madhes, Indian men will marry hapless Nepali women and take Nepali land and sovereignty. Women’s bodies have become key ‘borders’ of the nation. Thus, it is clear for women in Nepal, the struggle for equal citizenship, vulnerability to sexual violence, access to justice and the end to impunity must also be situated in the realm of gendered national interest, national security, nationalism, the larger post-colonial history of India and the manner in which Nepali, high caste, hill, male state elites have in the past acted, and continue to act, ‘as though their government’s place in world affairs has hinged on how women behaved.’34
1. Initiatives include the Gender Equality Act (2006) which included penal provisions for marital rape; Human Trafficking (Control) Act (2007) and the Nepal Domestic Violence (Offence and Punishment) Act 2066 (2009). Furthermore, there are numerous action plans, for example, the National Plan of Action Against Trafficking in Children and Women for Sexual and Labour Exploitation in Nepal (2008); the National Action Plan on the Implementation of Security Council Resolutions 1325 and 1820 (2011-2016) and the National Strategy and Plan of Action on Gender Empowerment and Ending GBV 2012-2017. Most recently, in November 2015 the government has amended the existing law in order to broaden the definition of rape beyond the penetration of the penis into the vagina to ‘penile penetration of orifices’ and ‘non-penile penetration of vaginas’. Kathmandu Post, ‘Government Broadens Definition of Rape’, 28 Nov. 2015. Available at: http:// kathmandupost.ekantipur.com/printedition/news/2015-11-28/govt-broadens-definition-of-rape.html (Accessed 30 Nov. 2015).
2. The most commonly reported perpetrator of physical violence among married women is the current husband (84 per cent). Former husbands and in-laws are cited by 7 per cent and 6 per cent, respectively. Among never-married women who have experienced physical violence since age 15, the most common perpetrators are siblings (38 per cent), fathers or stepfathers (36 per cent), and mothers or stepmothers (30 per cent). Sexual violence was more prevalent among divorced, separated, or widowed women (22 per cent) compared to currently married (15 per cent) and never-married women (2 per cent). Ministry of Health and Population (MoHP), Nepal, New ERA, Macro International Inc. Nepal Demographic Health Survey 2011. MoHP, New ERA, and ICF International, Kathmandu, 2012.
3. Government of Nepal, ‘A Study on Gender-Based Violence Conducted in Selected Rural Districts of Nepal’. Office of the Prime Minister and Council of Ministers, Kathmandu, November 2012. Available at: https://asiafoundation.org/resources/pdfs/OPMCMGECUGBV Research Final.pdf (Accessed 29 November 2015).
4. CREHPA and University College London, ‘Tracking Cases of Gender-Based Violence in Nepal: Individual, Institutional, Legal and Policy Analyses’, 2013. Available at http://countryoffice.unfpa.org/nepal/drive/TrackingCasesofGBV.pdf (Accessed 29 October 2015).
5. Saathi, Asia Foundation and DFID, ‘Nepal: Preliminary Mapping of Gender Based Violence’, Kathmandu, 2010. Available at: https:// asiafoundation.org/resources/ pdfs/GBVMappingNepal.pdf (Accessed 12 November 2015).
6. Government of Nepal, op. cit., p. viii.
7. CREHPA and University College London, op. cit.
8. P.R. Onta, ‘Activities in a Fossil State: Balkrishna Sama and the Improvisation of Nepali Identity’, Studies in Nepali History and Society 2(1), 1997, p. 73.
9. M. Des Chene, ‘Is Nepal in South Asia? The Condition of Non-Postcoloniality’, Studies in Nepali History and Society 12(2), 2007, p. 219.
10. R. Burghart, ‘The Formation of the Concept of Nation State in Nepal’, Journal of Asian Studies 44(1), 1984, pp. 115-116.
11. M. Liechty, ‘Selective Exclusion: Foreigner, Foreign Goods, and Foreignness in Modern Nepali History’, Studies in Nepali History and Society 2(1), 1997, pp. 10-11.
12. D. Pokhrel and M. Sharma, ‘Hunters versus Defenders: Rape in the Legal History of Nepal’, in Mandira Sharma and Seira Tamang (eds.), A Difficult Transition: The Nepal Papers. Zubaan, Delhi, 2016, p. 100.
13. B.M. Bhusal, ‘Prosecutorial Processes in Armed Conflict and States of Emergency’, in M. Sharma and S. Tamang (eds.), ibid., p. 142.
14. R. Thapa, ‘After the War: Transitional Justice in Nepal’, in M. Sharma and S. Tamang (eds.), ibid., p. 211.
15. Seira Tamang, ‘Assembly-line Sisters’, Himal South Asian 12(9), 1999, p. 41. Available at https://old.himalmag.com/component/content/article/2319-Assembly-line-sisters.html (Accessed 8 September 2015).
16. M. Sharma and D. Pokhrel, ‘Impunity for Conflict-related Sexual Violence in Nepal’, in M. Sharma and S. Tamang (eds.), op. cit., pp. 118.
17. R. Thapa, op. cit.; M. Sharma and D. Pokhrel, op. cit., in M. Sharma and S. Tamang (eds.), ibid.
18. The Hindu, ‘Nepal Supreme Court Rejects Amnesty for War Crimes’, 2015. Available at: http://www.thehindu.com/news/international/nepal-supreme-court-rejects-amnesty-for-war-crimes/article6940809.ece (Accessed 25 November 2015).
19. International Commission of Jurists, Commissions of Inquiry in Nepal: Denying Remedies, Entrenching Impunity. June 2012, p. 7.
20. Ibid., p. i.
21. M. Sharma and D. Pokhrel, op. cit.
22. S. Sharma, ‘Army and Security Forces After 2006’, in D. Thapa and A. Ramsbotham (eds.), Two Steps Forward, One Step Back: The Nepal Peace Process. Conciliation Resources, London, 2017, p. 45.
23. M. Aryal, ‘Truth, Silence and Justice: The Maoists’ View’, in M. Sharma and S. Tamang (eds.), op. cit., pp. 174-204.
24. Kailash Rani Rai, ‘Sahashik Jivangatha: Maobadi Mahilaka Yuddha Sansmaran’, Media Adyayan 8, Martin Chautari, Kathmandu, 2010, pp. 31-65.
25. R. Thapa, op. cit.; M. Sharma and D. Pokhrel, op. cit., in M. Sharma and S. Tamang (eds.), op. cit.
26. Seira Tamang, ‘The Hindu State, Women’s Activism and the Cultural Coding of Sexuality’, in M. Sharma and S. Tamang (eds.), ibid., pp. 83-86.
27. L. Murthy, ‘Harihar Wasti: Forensic Investigation in Sexual Violence in Nepal’, in M. Sharma and S. Tamang (eds.), ibid., pp. 305-321.
28. M. Sharma and D. Pokhrel, op. cit., pp. 106-134.
29. Seira Tamang, op. cit; and S. Pudasaini, ‘Reflections on Occupy Baluwatar’, pp. 256-301, in M. Sharma and S. Tamang (eds.), A Difficult Transition: The Nepal Papers, Zubaan, Delhi, 2016.
30. Prashant Jha, ‘Walk the Talk’, Kathmandu Post, 22 August 2012. Available at: http://kathmandupost.ekantipur.com/printedition/news/2012-08-21/walk-the-talk-238675. html (Accessed 28 November 2015).
31. Seira Tamang, ‘Sanitised Patriarchy’, Kathmandu Post, 8 January 2013, Available at http://kathmandupost.ekantipur.com/printedition/news/2013-01-07/sanitised-patriarchy.html (Accessed 10 November 2015).
32. D. Pokhrel and M. Sharma, in M. Sharma and S. Tamang (eds.), op. cit.
33. Bhaskar Gautam, ‘Parithyakta Madhes: Likhatadwarakaida Nepali Rastriyatha’, Studies in Nepali History and Society 13(1), 2008, pp. 117-146.
34. Cynthia Enloe, Bananas, Beaches and Bases: Making Feminist Sense of International Politics. University of California Press, Berkeley, 1990, p. 199.