SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Nepal’s Country Code contains a chapter covering the offence of rape. 434 Recent amendments
define rape as sexual intercourse with any woman without her consent, or sexual intercourse
with a girl below the age of sixteen years with or without her consent. The law now also
includes slight penetration of the penis into the vagina as constituting rape.
Another recent change to the law has brought marital rape within the ambit of the crime. This
change was spurred by a constitutional challenge to Nepal’s rape laws for not recognising
marital rape, which is discussed further below. Another progressive change in Nepal’s
jurisprudence on sexual offences is that the law now equates the rape of a sex worker on par
with the rape of any other person. Earlier the law provided a lesser punishment for rape of a
sex worker. In a case which challenged the constitutional validity of a provision, which
differentiated punishment for a sex worker as compared to other women who were raped 435
the Supreme Court held that rape is a crime, which exerts physical and psychological torture
on a woman irrespective of her status; a sex worker is also a woman and is entitled to enjoy
all the protections granted to a human being. Thereby it declared the impugned provision
unconstitutional.
It has been noted that some other aspects of the amended law are unsatisfactory. For instance,
a woman is provided the defence of chastity to use deadly force against the attacker to
prevent being raped. It has been argued that this protection should be provided as a right to
self-defence simpliciter and not be couched in terms of chastity. 436
Notably, and much like other countries in the region, sexual offences laws are genderspecific,
thereby not envisaging situations where adult males can be raped or sexually abused.
Sri Lanka’s Penal Code contains a chapter on Sexual Offences. Section 363 of the Sri
Lankan Penal Code criminalises “rape”, which is committed when a man has sexual
intercourse with a woman without her consent (even if she is his wife but is judicially
separated), through consent obtained under coercion (while she is in detention or under threat
of detention) or when she is intoxicated or of unsound mind, irrespective of consent if the
female is under 16 years of age (unless she is his wife over 12 years of age and not judicially
separated), or knowing that he is not her husband, obtains her consent by making her believe
that he is. 437 By way of explanation, the section states that “Penetration is sufficient to
constitute the sexual intercourse necessary to the offence of rape.” Rape is punishable with
up to 20 years imprisonment. 438 A gamut of provisions related to sexual abuse of minors and
acts of sexual intercourse not covered by the rape provision are discussed in subsequent
sections of the report or have been discussed in prior sections.
Other than a few judgments related to rape, the Sri Lankan Supreme Court has not passed
judgments related to other sexual offences. In the case of Inoka Gallage v. Kamal
434 The authors did not have access to the original text or a conclusive English translation of rape law in Nepal
and therefore relied on an unpublished study and analysis on sexuality and rights undertaken by the Forum for
Women, Law & Development, which was made available to the authors.
435 Sapana P. Malla for FWLD vs. HMG/Nepal, Writ No. 56/2058. The authors did not have access to the
original text or an English translation of this judgment and relied on an unpublished study and analysis on
sexuality and rights undertaken by the Forum for Women, Law & Development, which was made available to
the authors.
436 Forum for Women, Law & Development, A study and analysis on sexuality and rights, unpublished
437 Section 363, Penal Code, 1883 (Sri Lanka)
438 Section 364, ibid.
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