Child sexual Abuse, Access to Justice and Proposed Criminal Code

 

pdf_button24.png

 

 

Introduction:

Child Sexual abuse (CSA) is use of child for sexual gratification by an older or more powerful person. (Tulir: CPHCSA). In most cases, children are abused by an adult but more powerful child can also be offender. The victim child may be a boy or a girl. Both genders are vulnerable to Child sexual abuse. It’s a heinous crime against children leaving long term impact ranging from physical problems to psychosocial difficulties.

The act of using child for sexual gratification is crime punishable by law. Article number 1 of Chapter 14, Muluki Ain, defines sexual intercourse with or without consent with girl aged below 16 as rape and punishable crime by law. Despite Child Sexual Abuse being inhuman act and punishable crime there are certain gaps in law like 35 days time limitation, not defining use of object for sexual gratification as rape, which is unfavorable for victim to get justice. Similarly, there is the prevalence of child unfriendly set up in institution (police station, hospitals, courts) which further hinders in process of child victim getting justice.

Prevalence Child Sexual Abuse in itself is evidence violation of Human rights. The Human rights of children are being violated not just by offender ( by commiting the crime). Even state is involved in violating human rights children i.e.  by not punishing perpetrator.  Perpetrators are moving freely around due to gap in law and implementation of judicial decision. Lack of fast track, unfriendly set ups in institution while accessing justice, lack of favorable law, lack of proper guideline on medical check up, lack of compensation and support for victim, absence of proper rehabilitation program for CSA victim, etc  are key issues to be mentioned here which clarify the loopholes in our law and its implementation.

Child Sexual Abuse has been the major concern of CWISH since it’s establishment. We have majorly worked in community among children, parents, teachers to create awareness on CSA. Similarly, through campaign like Youth in Black cap have been pressurizing the state mechanism at local and national level on creation of child friendly law as in concern to CSA.

CWISH on occasion of Human right Magna meet organized a workshop on Child sexual abuse, access to Justice and proposed criminal code on December 12, 2014. The workshop was organized with the objective of  conductingPolicy level discussion among stakeholder and CA members on criminal code  about the loopholes and gaps in existing law to address access to justice in case of Child sexual abuse (CSA). It was aimed at sensitizing and influencing CA members to internalize the importance of drafting of child friendly law in concern to CSA.

Policy Discussion in Detail:

The workshop was scheduled into different sessions like Opening session, presentation on CSA and Criminal code, Expert Sharing, Floor discussion, Presentation of appeal from Youth in Black Cap Campaign, Speech by Guest and Chairperson.

Formal program started with welcoming of dignitaries, CA members and audience.  Mr. Yuba Raj Ghimire, thematic Coordinator, CWISH facilitated the program. He set the background of workshop by sharing about the cases and news cutting of child sexual abuse in Nepal. He even gave the statistical glimpse of child sexual abuse in Nepal.

 67 participants from different organizations, child right experts, journalist, college students, etc attended the workshop. The program was also attended by CA members and Chairperson of Women Children elderly citizen and social welfare committee, Constitutional Assembly.

Ms. Sangeeta Chapagain (Dahal), treasurer, CWISH welcomed guest and audience. She shared the objective of workshop.  In her welcome speech she also mentioned about the negligence of family, society and state due to which more number of children are being victimized. She also talked about the psychological and social on child victim of CSA. Ending her speech she urged everyone participating in the program, to actively get involved in policy discussion for further delegating to CA members.

The speech was followed by presentation on proposed criminal code and Child sexual abuse by Advocate Kamal Guragain. Mr. Guragain, comparing and contrasting existing provision on criminal code concerning CSA with proposed Criminal code explained about the loopholes and gaps in existing criminal code. He further explaining to audience mentioned about unfavorable and discriminatory provisions in law .i.e. 35 days time limitation on reporting of sexual abuse, provision on law indicating child sexual abuse only occurs to girl child, lack of medico-legal format. He also shared about absence of concept of victimology, concept of victim’s right to information about proceeding in case, concept of victim friendly court hearings, fast track, and compensation for victim. In his presentation he rationalized the importance of proposed Criminal code which has been revised under leadership of Nepal Law Commission. He talked about how proposed criminal code addresses all the gaps and loopholes as well as has new provisions which are victim friendly. The session was followed by floor discussion where audience inquired much more on proposed criminal code and shared cases about child sexual abuse highlighting the drawback of law due to which victim couldn’t access to justice. The issues raised in floor discussion were:

  • child unfriendly and victim unfriendly set up police station, hospitals and court
  • Lack of psychosocial counselor/social worker
  • Lack of security for victim, his/her family and one who reports
  • Victim has to collect all the evidence
  • Legal cost and medical expenses have to be borne by Victim themselves
  • 35 days time limitation on reporting
  • Only penetration of penis to be considered as rape, while inserting of objects, finger is not considered as rape by law, etc.
  • Free movement of offender, political protection to offender
  • Victim need to apply to court for implementation of judicial system
  • Timing taking process of judicial system
    • Fast track justice system
    •   Removal of 35 days of limitation in case of child sexual abuse
    •   Compensation for victim of child sexual abuse by state
    •   Integrated medico-legal format
    • Child friendly judicial system   

After the floor discussion, Mr. Amrit Devkota, Vice-secretary of youth in Black Cap Campaign and President of Dyanamic Youth forum, presented an appeal on policy reform on child sexual abuse and handed the Appeal to Chairperson of Parliamentary committee on Women Children Elderly citizen and Social welfare, Constitutional Assembly. Following demands were included in the appeal:

Commitment and Speech by Chairperson of Women Children Elderly Citizen and Social Welfare Committee:

Hona’rable CA member as well as Chairperson of Women Children Elderly citizen and social welfare committee, Constitutional Assembly, Ms. Ranju Jha, after receiving the appeal committed on raising the issue of unfavorable and discriminatory law in concern to child sexual abuse. She also committed on bringing the issue of victim and child unfriendly set ups, provision of fast track, victimology perspective in case of sexual abuse into discussion in parliamentary forum. Further she also committed on personally raising the issue in parliament and working for bring positive changes in law/policies/systems for Victim’s access to justice.

Expert Sharing:

Following her Speech, Advocate Purna Shila Dawadi, Legal aid and Consultancy Centre (LACC) also shared about her experience in advocating for victim of child sexual abuse. She talked about her experience of working as lawyer fighting for justice of sexually abuse women and children. She talked about the social and legal barriers, victim face in process of accessing justice. She talked about the shattered hopes of victims of sexual abuse and rape, who are still waiting for justice or are frustrated with system which couldn’t provide them justice. She even shared some cases of child sexual abuse where victim couldn’t access to justice because of legal barrier like 35 days reporting limitation. Ending her words, she urged CA members to make child friendly and victim friendly law concerning sexual abuse.

Speech By Guest:

Similarly, CA member Ratna Devi Gurung, committed on raising the issue concerning child sexual abuse in constitutional assembly. She also committed on ensuring child friendly law concerning CSA.  Talking about fast track she said, “fast track in judicial system in case of rape is very essential for ensuring justice to victim. And we will make sure of it implementation where civil society should always aware us about it’s effectiveness.”

CA member Asha Koirala, also committed on ensuring that child friendly and victim friendly law in endorsed by government.

Closing Remark:

Ms. Bimala Jnawali, Chairperson, CWISH giving her concluding remarks, thanked everyone for their active and meaningful participation in discussion. She also thanked CA members for their presence and commitment. She appreciated everyone for their efforts and recommended CA members in endorsing child friendly law concerning CSA and criminal code.

Conclusion:

Altogether 67 participants withnessed the program. Among them were the CA members, experts on child rights, journalist and participants from various organizations. Presentation on existing criminal code highlighting the gaps and loopholes was conducted where many participants shared their experience in working for justice of sexually abused victim. Similarly, expert like advocate Punya Shila Dawadi shared her experience. As well as an appeal demanding policy reform concerning child sexual abuse was presented and handed to chairperson of women children elderly citizen and social welfare committee, CA. Participating CA members made commitment on bringing of child friendly law in concern to CSA as well as bringing reforms in policy.

Bibliography

Tulir: CPHCSA. (n.d.). Child Sexual Abuse. Retrieved January 13, 2015, from Tulir: Centre for the prevention and healing of child sexual abuse: http://www.tulir.org/childsexualabuse.htm