Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 11, Issue 1, April 2022
Articles

Sexual Abuse against Male Children and the Related National Practices and International Legal Obligation of Nepal

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  • Smriti Sapkota
Smriti Sapkota
B.A.LL.B. student at Kathmandu School of Law (KSL)
DOI: https://doi.org/10.46985/kslr.v11i1.2219

Published 2022-04-01

Keywords

  • Child Sexual Abuse, Victimization, Pedophilia, Prepubescent, Modus Operandi, Masculinity, Unnatural Sex.

How to Cite

Sapkota , S. (2022). Sexual Abuse against Male Children and the Related National Practices and International Legal Obligation of Nepal. Kathmandu School of Law Review, 11(1), 100–118. https://doi.org/10.46985/kslr.v11i1.2219
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Abstract

Nepal has aimed to prevent and protect children from all forms of violence, abuse, and exploitation by adopting a broad range of national laws, rules, regulations, and policies along with the international legal commitments. However, these rights are frequently violated. Sexual abuse against male children and pedophilia are rising issues of child sexual abuse that have remained a hidden phenomenon over the years. This paper is thus an endeavor to study the sexual abuse against male children via the pedophilic character of offenders in the context of Nepal. By adopting key informant interview methods, assessing national and international legal practices, and collecting information from the secondary sources; this paper examines the relationship among child sexual abuse and pedophilia, the sociological aspects of male child sexual victimization, and the modus operandi to cause abuse. In addition, this research delves into analyzing Nepal’s existing legal commitments to address sexual abuse in the international arena and the legal challenges Nepal is explicitly facing in addressing male child sexual abuse via pedophilia. The paper assesses the roles of various stakeholders in standing together to vigorously address this issue.

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References

  1. Edward L. Rowan, M.D., Understanding Child Sexual Abuse, University Press of Mississippi, USA, 1st Edition, 2006, pp. 3-4.
  2. Vanessa Cezarita Cordeiro, 'Child Abuse', Humanium.org, Geneva, 25 June 2021, available at https://www.hum anium.org/en/abuse/, accessed on 13 May 2022.
  3. 'Violence Against Children', World Health Organization, available at https://www.who.int/healthtopics/violence-against-children#tab=tab_2, accessed on 13 May 2022.
  4. Child Sexual Abuse involves basically two things;
  5. Sexual activity with a minor who has not achieved the legal age for sexual activity under national law.
  6. Conducting sexual activities with child by the use of coercion, force or threats, undue influence of any kinds such as influence made on the basis of recognized position in certain business or any authority and the abuse made of children in the vulnerable position; mental or physical handicap or a dependency situation. John Frederick, 'Sexual Abuse and Exploitation of Boys in South Asia: A Review of Research Findings, Legislation, Policy and Program Responses', Innocenti Working Paper no. 2010-02, United Nations International Children's Emergency Fund (UNICEF), 2010, p. 3 available at https://www.unicef-irc.org/publications/pdf/iwp_2010_02.pdf, accessed on 15 May 2022.
  7. Smriti Sapkota, Child Offence and Punishment Practices, Advocate Rajendra Bhattarai, Specialist in the Criminal law and Justice, 20 June 2022.
  8. Michael C. Seto, Pedophilia and Sexual Offenses Against Children, Center for Addiction and Mental Health and University of Toronto, Annual Review of Sex Research, 2004 available at https://www.researchgate. net/publi cation/326564057_Pedophilia_and_sexual_offending_against_children_Theory_assessment_and_intervention_2nd_ed, accessed on 12 May 2022.
  9. Deviant behavior refers to the nonhuman objects of desire, misery or humiliation by the person or partner, or involvement of children or other non-consenting persons and is also termed as aberrant behavior.
  10. Seto (n 7).
  11. In its most extreme form, pedophilia reflects an exclusive sexual preference for prepubescent children to adults.
  12. Smriti Sapkota, Child Offence and Punishment Practices, Trishna Ghosh Bista, Clinical Psychologist, Mental Hospital Lagankhel, 24 July 2022.
  13. Ibid.
  14. Alia E. Dastagir, 'The complicated research behind pedophilia', The USA Today, USA, 10/01/2022, available at https://www.usatoday.com/story/life/health-wellness/2022/01/10/pedophiles-pedophilia-sexual-disorder/8768423002/, accessed on 11 May 2022.
  15. Bhattarai (n 6).
  16. Bista (n 11).
  17. This refers to the state and also the process of a male child becoming the victim of certain offense.
  18. Rajit Bhakta Pradhananga, Crimes Against Women in Nepal, Lumbini Books, Kathmandu, 2018, p. 299.
  19. Smriti Sapkota, Child Offence and Punishment Practices, Padam Pd. Pandey, Deputy Attorney General of Nepal, 3 July 2022.
  20. Masculinity is the broad set of processes that include gender relations and gender practices between men and women and their effects in bodily experience, personality and culture. Dr. Zuleyka Zevallos, 'Sociology of Gender', Other Sociologist, available at https://othersociologist.com/sociology-of-gender/, accessed on 16 June 2022.
  21. Krishna K. Thapa, Raju Ghimire et.al, 'Exploring and Addressing Sexual Violence of Boys in Nepal', Voice of Children, 2019, Lalitpur, pp. 11-12 available at https://changemakersforchildren.community/ system/files/2021-05/Exploring%20and%20Addressing%20Sexual%20Violence%20of%20Boys%20in%20Nepal%20-%20Voice%20of%20Children.pdf, accessed 13 May 2022.
  22. It is depicted in form of gender norms and based on social hierarchy created by the gender roles created in the society from the time of birth.
  23. The Nepali society opts the patriarchal social structure which necessitates men to become strong in compared to women.
  24. 'Nepali Masculinities: Gender-Based Violence', UNDP, 2014, Lalitpur, available at, https://www.undp.org/ content/dam/nepal/docs/projects/UNDP_NP_AVRSCS_nepali_masculinities_and_gender-based_violence.pdf, accessed on 13 May 2022.
  25. Frederick (n 5), p. 5.
  26. Ibid.
  27. Smriti Sapkota, Child Offence and Punishment Practices, Gyanendra Shrestha, Child Rights Consultant, National Child Rights Council, Shreemahal, Lalitpur, 20 June 2022.
  28. Smriti Sapkota, Child Offence and Punishment Practices, Raju Khatiwada, Chief Judge of Kathmandu District Court, 3 July 2022.
  29. Ibid.
  30. Modus operandi refers to a method of operation or pattern of criminal behavior so distinctive that separate crimes or wrongful conduct are recognized as the work of the same person. 'Modus Operandi' Cornell Law School, available at https://www.law.cornell.edu/wex/modus_operandi, accessed on 28 June 2022.
  31. 'Child Protection Mapping and Assessment Summary Report', Ministry of Women, Children and Social Welfare and Central Child Welfare Board, 2015, Lalitpur, p. 64, available at https://www.unicef.org/nepal/media/751/file/Child%20Protection%20Mapping.pdf, accessed on 14 May 2022.
  32. Benoit Leclerc, Jean Proulx & Eric Beauregard, 'Examining the Modus Operandi of Sexual Offenders Against Children and its Practical Implications' available at https://citeseerx.ist.psu.edu/viewdoc/download? doi=10.1.1.890.4250&rep=rep1&type=pdf p. 11, accessed on 20 June 2022.
  33. Based on interview with Dr. Ananta Prasad Adhikari, Chief Consultant Psychiatrist and Director, Mental Hospital Lagankhel on 24 June 2022.
  34. Ministry of Women, Children and Social Welfare and Central Child Welfare Board, 2015 (n 30).
  35. Govind Subedi, 'Trafficking and Sexual Abuse among Street Children in Kathmandu', ILO International Program on the Elimination of Child Labor (IPEC), 2002, Kathmandu, pp. 29-30, available at http://www.ilo.org/ipecinfo/product/download.do?type=document&id=773, accessed on 15 May 2022.
  36. Smriti Sapkota, Child Offence and Punishment Practices, Sapana Khadka, Inspector, Women, Children and Senior Citizen Service Center, Kalimati, 1 July 2022.
  37. Ibid, p. 39.
  38. Nepal Government v Munna Miya Ansari (known as Gulab Miya) and Awalesh Miya, NKP 2076 (2019), volume 1, Decision no. 10361.
  39. Here, the perpetrators took the 4 years old baby boy to his father's tailoring shop when he was out and closed the shutters and threatened to kill the boy if he made noise. They covered his mouth with cloth and committed unnatural sexual offence followed by rape by penetrating the penis into the boy's anus one by one.
  40. Nepal Government v Munna Miya Ansari (n 37).
  41. Bam Bahadur Khatri v Nepal Government, NKP 2075 (2018), Volume 5, Decision no. 10019.
  42. Khadka (n 35).
  43. 'Child Rights Status Report in Nepal', National Child Rights Council, 2021, Lalitpur, Nepal, available at https://www.ncrc.gov.np/uploads/topics/16546761986596.pdf p. 118, accessed on 15 June 2022.
  44. Ibid p. 119.
  45. Ibid.
  46. 'A Study on Child Sexual Abuse in Nepal with Focus on Travel and Tourism Sector', Saathi, 2020, Kathmandu, pp. 10-11 available at https://saathi.org.np/wp-content/uploads/2021/06/A-Study-on-Child-Sexual-Abuse-in-Nepal-with-Focus-on-Travel-and-Tourism.pdf, accessed on 17 July 2022.
  47. Ibid, pp. 27-28.
  48. Shrestha (n 26).
  49. Ibid, pp 22-29.
  50. Nepalko Sambidhan, (Constitution of Nepal), 2018.
  51. Balbalika Sambandhi Ain, 2075(The Act on rights relating to Children 2018), Nepal, s. 2(j).
  52. Convention on the Rights of Child, 2 September 1990, 1577 UNTS 3, New York, 20 November 1989, art. 1.
  53. Sandhi Ain, 2047, (The Treaty Act, 1910), s. 4, 5, 6.
  54. CRC (n 51), art. 19, 34, 36, 39.
  55. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 25 May 2000, 2171 UNTS 227, New York, 18 January 2002, art. 1, 2, 4, 5, 6, 7, 8, 9, 10 available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx accessed 30 June 2022.
  56. Geneva Declaration on the Rights of Child, 26 September 1924, LON Spec. Supp. 21 at 43, Geneva, preamble.
  57. Constitution (n 49), art. 39(7).
  58. Balbalika Sambandhi Rastriya Niti, 2069 (The National Policy Related to Children, 2012, Ministry of Women, Children and Senior Citizens, Government of Nepal, paras. 7.1, 8.3, 8.6, 9.3, 9.5, 9.19, 2012), available at https://mowcsc.gov.np/rules/Tqy0Nmb3GzujBvAvMzvFZ1i1s0y2lurI7lncMadb-1625469084.pdf, accessed on 30 June 2022.
  59. 'The Fifteenth Plan; Fiscal Year 2019/20-2023/24', Government of Nepal; National Planning Commission, 2020, Kathmandu, p. 268-2072, available at https://npc.gov.np/images/category/15th_plan_English_Version.pdf, accessed on 30 June 2022.
  60. Muluki Aparadh Samhita, 2074 (National Criminal Code, 2017), ss. 219, 224.
  61. Ibid. s. 225.
  62. Ibid. s. 226.
  63. If a person enters a lonely area in an unexpected way, holds or touches a child's sexual organ, or obtains access to a child's sexual organ, it will be deemed child sexual abuse. To touch, hold, or engage in any unconventional sexual behavior/conduct with a child with the intent to engage in sexual activity is child sexual abuse. There is a provision of imprisonment for a term not exceeding three years and fine not exceeding thirty thousand rupees.
  64. This involves penetration without consent. The person liable of this offence shall be liable to the sentence of imprisonment for a term not exceeding three years and a fine not exceeding thirty thousand rupees in case of adult victim and if committed against child shall be sentenced under rape chapter.
  65. Rape shall also refer to the penetration of penis into anus or mouth or inserted to an extent in anus, mouth or vagina, insertion of any object other than penis into vagina as per explanation clause; section 219(2)(c) of the Criminal Code.
  66. Consent obtained by way of coercion, undue influence, intimidation, threat, misrepresentation or kidnapping or taking of hostage and obtained at time of being of unsoundness of mind, shall not be considered consent as per the explanation clause of section 219 (2) of National Criminal Code.
  67. Criminal Code (n 59), s. 219(2).
  68. For the offence of rape as described, following are the structure of imprisonment:
  69. • If the victim girl is below ten years, fully incapacitated woman, disabled or woman of age more than 70 years shall be punished for life imprisonment.
  70. • If the victim girl is 10 years or up to less than 14 years then the punishment shall be imprisonment for 18 to 20 years.
  71. • If the victim girl is 14 years or up to less than 16 years, then the punishment shall be imprisonment for 12 to 14 years.
  72. • If the victim girl is 16 years or up to less than 18 years, then the punishment shall be imprisonment for 10 to 12 years.
  73. • If the victim woman is 18 years or above, then the punishment shall be imprisonment for 7 to 10 years.
  74. Criminal Code (n 59), s. 229(2).
  75. Children's Act (n 52), ss. 7, 25, 48, 50, 57.
  76. Ibid s. 3.
  77. Ibid, s. 66 (3).
  78. Ibid, s. 66(3)(g).
  79. Ibid, s. 66(3)(h).
  80. Ibid, s. 72(3)(g).
  81. Ibid, s. 74(2).
  82. Ibid, s. 76.
  83. David Finkelhor, 'What's wrong with sex between adults and children?', American Journal of Orthopsychiatry, p. 1, issue 49, 1979 p. 1-2, available at http://www.itp-arcados.net/wissenschaft/whatswrongwith6.pdf, accessed on 12 May, 2022.
  84. The sexual relationship among the child and adult is considered fundamentally wrong.
  85. Finkelhor (n 77) pp. 44-46.
  86. Seto (n 7).
  87. Stephen Kershnar, Pedophilia and Adult-Child Sex: A Philosophical Analysis, Lexington Books, USA, 1st Edition, 2015, pp. 41-43.
  88. Bista (n 11).
  89. Saathi (n 45), p. 2.
  90. Ibid.
  91. Bhattarai (n 6).
  92. Ibid.
  93. Children's Act (n 50), s. 45.
  94. Pandey (n 18).
  95. Kasur (Sajaya Nirdharan tatha Karyanwayan) Ain, 2074 (The Crime Offences (Sentencing and Execution) Act, 2017), Nepal, s. 9(1).
  96. Children's Act, (n 50), s. 72(3)(b).

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