Presumption of innocence and Nepali attitude

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