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“Let’s go to the cinema,” asked a boy. “I do not want to go today. Another time,” said a girl. “I want to spend some time with you. Let us go right now,” insisted the boy. “Not now. I want to go home,” said the girl with discomfort. The boy, now equipped with intimidation in his voice, continued to exert what we would call ‘stress’ upon the girl, and demanded that she heed his demands. The girl became nervous and teary. Upon looking at her vulnerable demeanor and consistent refusal to his offer, the boy started scolding her for not being ‘serious’ in their “relationship.”

After the boy had finished berating her for allegedly hurting his “expectations” and depreciating his “masculinity,” he left livid, and the girl returned home hurt and thinking as to why the boy did not respect her decision. Was it an ardent task for the boy to understand that she was in no mood to go with him that day? Dear readers, if the words ‘consent’ and ‘abuse’ popped in your mind, you have caught the essence of this article. If they did not, then worry not and enjoy this piece. 

“If it is not a clear ‘yes,’ then it is a clear ‘No!’”. We must have heard this statement numerous times, but do we have a clear understanding of what it means? The notion of consent is one of the most crucial aspects of an individual’s physical integrity and self-determination. It is not only a mere act of permitting someone to perform certain tasks but also an entire protection from them causing any harm to you. It is a vital aspect of an individual’s right to live with dignity and freedom as protected by Articles 16 (Right to live with dignity) and 17 (Right to Freedom) of the Constitution of Nepal.

Article 16 proclaims that every individual shall have the right to live “with dignity”. The clause at the end is paramount to make every individual realize that they are in control of their lives. They possess certain values to live a dignified life such as autonomy, self-determination, free will, privacy and more. Thus, the notion of consent further solidifies the attainment of a respectful life. 

In this article, I will be discussing consent pertaining to sexual crimes against women. Considering recent convictions and acquittals of so-called high profile Nepalese individuals in rape cases, the concept on consent of women has been a topic of discussion in the Nepalese social media. At present, it is not simply a matter of saying ‘yes’ or ‘no’ but examining the circumstances in which women utter those words. Let me direct you the abhorrent statistics of crimes of rape in three different fiscal years.

In the Annual Report published by the Office of the Attorney General of the fiscal year 2078/79, the district attorneys’ offices (all over Nepal) prosecuted 7,528 cases of rape amongst which 1,742 accused were convicted; in the fiscal year 2079/80, the offices prosecuted 7,343 cases of rape amongst which 1,911 accused were prosecuted. We can conclude two things, by looking at these numbers, one that rape is an ever-increasing heinous crime against women and children; the other, that the courts found that the victims in those cases had not expressed their “free consent” to engage in sexual acts. Thus, the perpetrators blatantly disregarded the notion of consent of the victims and committed those crimes.

How does our criminal legal system view consent and why is it so? Section 20 and explanation of Section 219 of the National Penal Code, 2017 maintain that permission can be deemed as consent, oral or in writing, only when it is solicited without mistake of fact, fear, undue influence, threat of injury or harm; is solicited from person with sound mind and sound cognition and is solicited from person who is at least eighteen years of age. Moreover, Section 219(2) does not deem any sexual act as consensual and legal if it involves a woman under the age of eighteen years. These laws exist, amongst other reasons, to protect the physical inviolability and physical integrity of women and children. 

In the case of Yadav Prasad Ghimire v Government of Nepal, Nepal Law Magazine 2072, Decision Number 9335, the court iterated the notion of consent as ‘choice’ and posited that a person consents if they agree by choice and has the freedom and capacity to make that choice. In this case, the Supreme Court held that the victim had not expressed her free choice of engaging in intimate activities with the accused and thus withheld the sentencing against the latter. Another remarkable case is that of Bhupendra Khadka v Government of Nepal et al, Nepal Law Magazine 2076, Decision Number 10342, in which the Supreme Court postulated that such consent solicited from a lower rank officer by a higher rank officer of Nepalese Army, to engage in intimate activities shall not be deemed as “free consent” due to unbalanced power relation and disparity of economic and social power. Such consent is merely a delusion and sexual acts performed subsequently shall are sexual abuse. 

Why is the idea of consent difficult to grasp? Probably, it has to do with stereotypes about women and gender norms. The journal article “Socio-cultural and psychological aspects of rape…” (2022) published by J K et al, highlighted reasons of rape such as misperception and negative attitudes towards women, masculine dominance, parenting style, immorality, revenge, perceiving women’s clothing as ‘provocative/revealing’ and lack of free sexual expressions. Maybe the answer to respecting women’s consent lies in two themes, one that parents must be the first teachers to teach children about respecting women, morality, sex and sexuality, consent, and hazards of masculine dominance; and the other one could be the standard of sex education in schools and colleges. Also, legal education about the age of criminal responsibility and offenses relating to sex can play a major role in instilling fear amongst people (especially teenagers) to prevent them from engaging in hazardous sexual activities. In my opinion, if we endeavor more to educate the public and students, in more efficient and effective ways, we may achieve a relatively larger reduction in such offenses against women and children. 

The author is student of law at Kathmandu School of Law

The presumption of innocence is the greatest shield ever to have been provided to an accused in criminal lawsuits. It is a vital aspect of the criminal legal system around the world. It states that every accused is ‘innocent’ until proven guilty and the burden to prove their guilt lies with the prosecution i.e., the State. Whenever a person is arrested by the government for their alleged involvement in a crime, the government must collect all evidence to prove that person’s guilt in an independent, impartial, and competent court, beyond reasonable doubt. Until that happens, the arrested individual cannot be deemed to be a ‘criminal.’

The right to be treated as innocent until proven guilty is a fundamental constitutional right and it is protected in Article 20(5) of the Constitution. Similarly, Section 12 of the National Penal Code (Act), 2017 perpetuates the presumption of innocence in criminal lawsuits. 

This legal notion has become the standard of the ‘civilized’ legal system and it has enabled States to perpetuate their obligations to protect, promote and fulfill human rights of their citizens. The US case Coffin v. United States (1895) posited that the notion of presumption of innocence lied at the foundation of the administration of criminal law. Similarly, the case of Rabindra Bhattarai v His Majesty’s Government of Nepal, Nepal Law Magazine 2055 (BS), Decision Number 6622 meticulously iterated the essence of this presumption and held that no person shall be deemed as a criminal merely based on an accusation. Thus, it is undoubtedly an elementary legal principle that helps to protect a civilian’s freedoms. 

What would happen if an accused were deemed guilty until proven innocent? The accused would have to collect evidence of their innocence with limited resources available to them. On the other hand, the court would be ready to convict them merely based on accusations. Therefore, it would be unscientific and contrary to people’s human and legal rights. 

How should an accused be treated? Theoretically, they must be granted the same respect as that of unaccused individuals. Their fundamental rights must be protected by the State, and no person shall slander them or label them as ‘criminal’ until the court finds their guilt. But does society view such a person accordingly, with no biases at all? Does it comprehend easily that such a person is still a respected citizen and deserves no eccentric remarks until the court decides?

One of the best ways to assess the social psychology of Nepali society is to skim through various social media and observe the comments and remarks people express in various criminal matters. We can fairly observe that most people are quick to judge the accused and label them as ‘criminals’ based on rumors and whims influenced by news headlines and incomplete details from case files. It is as if an individual instantly becomes a criminal the moment they are accused of committing a crime. But does it happen if the accused is rich, influential, and admired by many?

The answer is generally ‘no’ and a recent example is how people (on social media) not only declared Sandeep Lamichhane (former captain of the Nepali cricket team) as innocent on a rape charge but also slandered the victim and perpetuated how ‘baseless’ the lawsuit was. To say that the entire nation was shocked would be an understatement. When he was released on bail in Jan 2023, a mass of people rushed to him to “celebrate” his release and many women were seen chanting his name as he left the court premises. What image of Nepali society does this “influence” paint? Why were people chanting his name knowing that the victim of rape was allegedly a minor? Why did they not think the cantillation of his name would directly attack the victim’s status and shake her belief in society and the justice system?

One of the answers to this is rape myth acceptance. RMA refers to acceptance of prejudicial, stereotyped, and distorted beliefs about rape, rape victims and rapists. These are the false attitudes and beliefs about the crime, yet widely held to serve and even justify male sexual aggression especially against women. When news of rape is broadcast, people in the first instance ask questions like “Why was the woman with the man?”; “Was she wearing revealing clothes?”; “Was she provocative?”; “Why did she not come for help sooner?”; “Why would a successful man risk his life and career?”

This attitude is not only prevalent in Nepal but also in countries all over the world. Due to RMA, many women tend to blame themselves and not bring the matter to light, let alone seek legal remedy. Patricia A. Resick in her journal article “The Psychological Impact of Rape” enumerated a wide range of problems faced by women such as fear, anxiety, PTSD, depression, sexual dysfunctions, issues with self-esteem, declined social adjustment and more. Yet many people in Nepali social media, in many instances, are quick to assassinate victims’ character. 

What could be the general ways to “fix” this attitude? Nepali society must understand that every accused has their fundamental rights intact until they are proven guilty by the court. Their rights to live with dignity, to freedom, to privacy, to health, to food, to housing and such, shall be respected. At the same time, if the accused is an influential personality, he or she shall not be celebrated or given a clean chit by the public. The people should let the law do its work and refrain from lionizing such individuals. They must think about the victim who is claiming that they were subjected to abhorrent injustice. 

To alleviate this attitude, the quickest short-term measure is to strengthen laws legislated to protect women. Courts play a crucial role in establishing and nourishing robust criminal jurisprudence in favor of women’s security and clarifying the idea of sexual consent. The more pragmatic the definition and boundaries of sexual crimes, the better social and legal understanding of sex crimes. This is also where strict monitoring of social media behavior comes into place. Nepal requires an upgrade in cyber laws to prevent online sexual misconducts. 

The best long-term measure would be to educate children from early ages to protect themselves, to call out for help in need, and to teach them the idea of consent. It would be beneficial if every workplace had a periodic mandatory anti-sexual harassment training to educate employees about respect and positive behavior. As time goes on, people must be cognizant about condemning lewd remarks on women through jokes, songs, and stereotypical narratives. If we could only adopt half of these measures, our society will be a safer place for women and girls. We could prevent numerous sex offenses and maintain a victim-centric attitude to make victims believe in social restoration. 

The author is student of BA LLB at Kathmandu School of Law

It is certain that many of us imagine a society without crimes. Every day, we learn about the occurrences of crimes and profoundly wish that they would stop. We make comments on social media, challenge the government via petitions and rallies, publish articles reminding the public of the looming danger and about the government about its failure to maintain the rule of law. However, history has not been so kind as to crystallize this utopian desire. 

A crime is an act or an omission which is defined as a crime by the criminal law of the land, bearing certain penalties upon the wrongdoer leading to a prosecution by the state. This general meaning has three elements: an act or an omission, definition by the criminal law and prescription of penalties. The absence of any one element does not amount to a crime. 

The above concept, which is endorsed by countless criminologists, is however controversial. Lucia Zedner in her book Criminal Justice (2004) criticizes the culture of defining crimes and associating punishments with them to be “remote from the social world.” She points out the obvious threat that if the criminal law does not ‘define’ crimes, there would be no crimes at all. 

In this article, I will focus on ‘criminal acts’. One of the tools to unravel the mystery behind crimes is the psychoanalytic theory propounded by the Austrian psychoanalyst Sigmund Freud (1856-1939). Freud assumed that an individual’s personality had three components: id, ego, and superego. He claimed that at an individual’s birth, their psychic energy resides in the id. It is the irrational and impulsive part which compels the person to satisfy their biological needs. That is why infants cry when they are hungry, or they wet themselves. 

When infants become toddlers, they develop cognition and critical thinking skills. It signifies the development of the ego which motivates them to discover rational and realistic ways of satisfying their needs. At this stage, they ask their parents to feed them and do not cry like they used to. Between three to six years of age, they develop the superego i.e., their internalized moral standards (conscience). They attain these moral standards mostly through their parents. These standards keep individuals civil and disciplined in society. The superego acts as a bridge between id’s gratifications and ego’s rational means of satisfying those gratifications. It emanates guilt and shame within individuals when they engage in condemnable acts. These tools of psychoanalytic theory enable us to contemplate, in a way, why an individual would commit a crime. The absence of a dynamic balance between these elements leads to deviant acts such as crimes. 

Let us remind ourselves of the abysmal social conditions of the Nepali society, particularly about homicide. It was reported by a daily newspaper on 8 Dec 2019 that 6,233 cases of murder were reported in the fiscal year 2018/19. The reasons could be as trivial as a fit of rage or as complex as a conspired killing. Unlike crimes like theft, robbery, simple hurt, where victims survive, heal, and try to get their life back to normalcy, homicide decimates all chances of persons functioning again. News like these cause people to doubt their surroundings and challenge their security. The death of people generates a ripple effect that disrupts the psychological barrier of the entire nation. 

A psychoanalyst would attribute the causes of this atrocity to factors such as intense rage, suppressed anger, unresolved antagonism, and such. I will share a generalized scenario as to how those Freudian standards come into play.

Let us assume that person A harbors a strong animosity towards another person B. Communication could help solve the tension; however, many people struggle to communicate so they rather keep things to themselves. Alternately, some people generate so much hostility that they view violence as the last resort. Thus, they set the crime in motion. They lose patience, self-control, and enjoy their false sense of gratification. It is only after the completion of the crime that the perpetrator starts thinking about the consequences. 

When person A develops a strong animosity towards person B, they will seek vengeance to satisfy their id. A’s ego will communicate with their id about rational methods to attain this satisfaction. The ego will evaluate whether it will bring about desired outcomes. In this situation, their superego will compute the pros and cons of settling down the matter via violence. 

This can proceed in two ways. If A has a strong superego, then they will either let the matter go or talk to B about it in a civilized way. If A has a fragile superego, then they will seek out immoral and inhumane methods of satisfying their id. One of the ways they will seek, is killing. Their level of conscience and self-control plummet to such a stunted level that they can no longer evaluate the consequences of their acts. It is certain that a part of their conscience will tell them to stop but their urge to satisfy their id becomes immense enough to neglect all the consequences. Thus, they will materialize their criminal intent.

How can we resolve this issue? When I think about it, there is an absence of adequate moral education from both the parents and the school. Parents and schools educate children about good manners to children and penalize them for misconduct. Since the superego proves to be the strongest of the three, it must be robust.

How can we make it robust? While we focus on academics, we must also learn to become patient, cognizant and moral. Our society emphasizes on teaching children about moral and humane notions, through holy texts like the Ved, the Tripitak, the Quran, the Bible and more. These are not merely books but guidance towards a civil and virtuous life. 

Yet something is lacking. Why is there a significant gap between people’s id, ego, and superego? We shall learn patience and virtues from our cultural roots and teach our children the same. We could also research new knowledge to obtain inner stability. These endeavors do pose as solutions to people’s inner conflicts. However, I still think the answer lies somewhere in being patient and vigilant about consciousness and behavior.