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

doer’s sexual desire by using doer’s sexual organ for committing against other person’s
sexual organ, anus or oral cavity, or using anyu other things for committing against other
person’s sexual organ or anus.” 468 The punishment is enhanced where the offence is
committed using a gun or explosive in the nature of destroying “a woman or a man.” 469
Provisions covering same-sex sexual assault range in the research countries from being
covered by provisions that also criminalise consensual same-sex sexual conduct as in
Bangladesh 470 to specific provisions recognizing same sex sexual assault. In Thailand,
coverage of same-sex sexual assault was introduced through gender-neutral provisions on
sexual assault in 2007 (see above). 471 In Indonesia, under Article 292 of the Penal Code, “any
adult who commits any obscene act with a minor of the same sex whose minority he knows or
reasonably should presume, shall be punished by a maximum imprisonment of five years.”
Article 297 punishes trade in women and minors of the male sex.
5.3 Sexual Violence: Marital Rape
The research countries have taken different paths to address marital rape. While some
continue not to recognise marital rape, others have criminalised it or provided civil remedies
for it. In Nepal, the non-recognition of marital rape in the country’s criminal laws was
challenged before the Supreme Court.
Marital Rape and Equality: In Forum for Women, Law and Development v Government of
Nepal 472 the constitutional validity of Section 1 of the chapter on Rape of the Country Code
was challenged as violative of Article 11 of Nepal’s then Constitution (1990), which
guaranteed the right to equality. The Supreme Court of Nepal also considered the Nepal
government’s commitments under the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of
Discrimination Against Women observing that Nepal had ratified the same without
reservation thereby accepting the responsibilities that arose from such ratification. The
impugned section provided that rape was an act of sexual intercourse with a girl, widow or
other’s wife below 16 years of age with or without her consent or with any of the above who
is over 16 years of age without her consent by using force, threat or undue influence. The
petitioner argued that by implication this meant that having sexual intercourse with one’s
own wife without her consent had not been included as rape and this violates the rights to
equality and equal protection of law (Article 11) and individual liberty (Article 12)
guaranteed under the Constitution.
The petitioner further argued that various international human rights instruments recognized
marital rape as both a form of violence against women and a violation of their human rights
and Nepal was duty bound to abide by these instruments having signed and ratified them. It
stated that the present provision failed to satisfy the equality guarantee in Nepal’s
Constitution as it made an unreasonable distinction between married and unmarried women
by considering rape against the latter punishable but a similar act by a husband on his wife as
468 Ibid.
469 Ibid.
470 Section 377, Penal Code, 1860 (Bangladesh)
471 Criminal Code Amendment Act (No.19) B.E. 2550 (2007) (Thailand)
472 2002; citation not available. However, authors have access to full text of judgment as translated by the
petitioners.
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