Sexual violence against women has reached epidemic levels in the Tarai. According to Nepal Police records, the number of rape cases reported at police stations has increased in the last three years from 481 in 2011 to 677 in 2013. Higher awareness among women has helped in bringing more cases to light. But as Chandra Kumari Byanjankar of the Mahottari Women and Children’s Office says, “The number of rape victims is increasing but getting justice and compensation is very difficult.”

Few perpetrators are actually booked for their crimes. Madan Kumar Jha, President of the Human Rights Protection Centre in Mahottari, says, “According to a recent study, only 20% of women who have been raped file a case with the police. The rest of the cases are settled through monetary deals brokered by local community leaders.” Even if women report rape, there are often no witnesses, and society responds by blaming the victims. The few cases that reach the police are not investigated seriously and in the absence of strong evidence, government lawyers don’t always register rape cases.

According to a survey carried out by Kripa in 2013, 81.1% of female respondents and 94.7% of male respondents agreed that officials from the police and local administration could be influenced by bribes. Many cases never reach the police or the courts because people from the community are fine with the use of political pressure and money to help perpetrators go free.

Bijay Thakur, President of the Nepal Bar Association (NBA) in Mahottari says: “There are some cases that reach the courts but there many others that are settled through the village ‘panchayat’. This trend will only encourage the perpetrators.” Marital rape and sexual violence by family members is punishable by law, but these cases are rarely brought to light, adds Ram Shankar Shah, former President of NBA Mahottari.

Uphill battle

Four years ago, a woman was gang-raped by a truck driver and his friends in Mahottari. She had been travelling to visit relatives and the truck driver had agreed to drop her.

On 4 September, 2012, Mahottari District Court sentenced the perpetrators Homlal Shrestha, Raj Kumar Lama and Ajay Lama to five years in prison and ordered them to pay Rs 25,000 each in compensation. The victim filed an application at the same court in April 2013 stating that the compensation had not been paid. Following this, the victim herself was assigned the task of looking into the assets of the rapists and told to present the findings in court. Meanwhile, the perpetrators were released on bail of Rs 5,000 and have been missing ever since. “I have been going to the court regularly, but there is no justice,” she says in despair.

Documentation Officer Lekhnath Bhattarai of Mahottari District Court says that the court wrote to the land revenue office in Makwanpur to urgently follow up on the perpetrators’ property details, to no avail. “After two years, we wrote to Makwanpur District Office to look into this case,” says Bijay Thakur of the NBA. According to Mahottari police, they requested the concerned authorities in other districts to search for the absconding criminals.

“I somehow managed to travel to Jaleshwor for the court hearings, but now it is more troublesome going to Hetauda,” says the victim. She sought help from the Women and Children’s Office in Mahottari, but was told by Byanjankar that there were no programmes available to lend her any support.

Burden of proof

Even if a case goes to court, it is often difficult to establish that the rape took place. If the accused deny the allegations, witnesses often do not present themselves in court, and if there isn’t enough evidence, the rape victim cannot prove that she was raped. Dr Dwarika Prasad Shah of Jaleshwor Hospital says, “If the victim is medically examined within 24 hours of rape it is possible to confirm the incident. But most of the time, victims don’t get checked for weeks, so how can the evidence be gathered?” The Office of the Attorney General has prepared a standardised format for medical reports in rape cases, but it hasn’t been adopted universally. The format of medical reports varies from one hospital to another, adding to the confusion.

Legal provisions

In the 12th amendment (2007) to Nepal’s legal framework, the Muluki Ain, there are provisions to sentence rapists for 5 to 15 years in prison, depending on the victim’s age. It also provides for an additional five years of imprisonment if the victim is gang-raped, pregnant or disabled. If the woman kills the rapist in self-defence then she will not be charged with murder. “But it is difficult to find cases where the woman killed the rapist to protect herself. Simply having laws isn’t enough,” says Sapna Sharma, a rights activist from Bardiya.

What about compensation? 

According to a study carried out done by the National Women’s Commission and the International Commission of Jurists in 2013, only 35% of perpetrators in 205 rape cases had to pay compensation as part of their sentence.

The study covered rape cases in the districts of Kathmandu, Lalitpur, Bhaktapur, Bardiya, Dhading, Mahottari and Siraha. It found that even in similar cases, compensation wasn’t always a part of the sentence.

The study found that the Kathmandu District Court had ordered compensation as low as Rs. 500 while the highest compensation amount stood at Rs. 310,000, ordered by the Lalitpur District Court. The laws related to rape give judges the right to decide on compensation depending on the severity of the case.

“Most of the victims aren’t even aware of the court’s decision regarding compensation. They don’t go to claim it because of all the hassle,” says advocate Samedha Shakya. There are rape victims in Siraha, Bardiya, Dhading, Mahottari and Banke who have applied and are waiting for compensation, but it is becoming very difficult, she adds.

In the rape case of a minor recently, Mahottari District Court judge Rishiram Niraula cited a lack of evidence but still sentenced the accused to seven years in prison for attempting rape. The victims’ family filed the case again at the Appellate Court in Dhanusha, which sentenced the accused to 15 years in jail, but didn’t say anything regarding compensation. Shyam Shah, a women’s rights activist, says, “Judges at the Supreme and Appellate Courts need to be very sensitive towards the issue of compensation for rape victims.” Advocate Shakya claims that there is no consistency in decisions regarding compensation for victims. “Even in similar cases, compensation ranges from as little as Rs. 2,000 to Rs. 150,000” she says. “Decisions based solely on medical evidence need to be improved.”

In another case, a thirteen-year-old rape victim from Dhading was supposed to receive Rs. 100,000 in compensation. She received Rs. 90,000 three years after the court’s decision. Another rape victim in Bardiya received Rs. 25,000 a year after the court’s ruling. Often, the responsibility of identifying the perpetrators’ property details falls on the victims if they claim compensation. In most cases, victims do not know their rapists so it is very difficult for them to proceed. Even when the court asks the concerned land revenue office, they are very reluctant to provide the required information. And in certain cases, the perpetrators do not own any property.

NBA Mahottari President Thakur says, “The court should seize the perpetrators’ bail money to provide compensation to victims. This would ease the hassle of obtaining compensation. We need to amend the law to ensure such provisions.”

State’s duty

Radhika Sapkota, a rights activist from Dhading, says that rape victims are discouraged due to the hassles involved in receiving compensation. “Victims have to go through a lengthy and taxing procedure and even then receiving compensation isn’t guaranteed. The court should demand compensation money from perpetrators to hand over to rape victims,” she says.

Advocate Kamal Guragain agrees that it is the state’s job to ensure that rape victims are compensated fairly. “In Mahottari, a rape victim wasn’t compensated because the rapist didn’t have any property,” he notes. “The state should ensure that such situations don’t arise again.”

This article was originally commissioned by the Centre for Investigative Journalism. A Nepali version of ‘Burden of Proof’ was published in Nagarik on 3 August 2014.