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

incorporated in the Act itself, and in view of the gravity of the offence, the degree of
punishment should also be increased.
In Sharmila Parajuli et al v. Government of Nepal 100 the Nepal Supreme Court ordered the
government to take steps to enact appropriate laws relating to sexual harassment.
Consequently, a gender equality law 101 was introduced, which amended the Chapter on
Intention to Sexual Intercourse in the Nepal Country Code in order to penalize sexual
harassment against women. The new law stipulates that acts would amount to sexual
harassment if any person, without consent of a woman, touches or tries to touch her sensitive
organ, removes or tries to remove her undergarment, takes her to any solitary place in an
unnatural manner, causes her to touch his/her sexual organ or uses any sexually motivated
words or symbols or shows her such photographs or drawings, teases or harasses her with
sexual motives or behaves with her in an unnatural way or catches her with the motive to
have sexual intercourse. However, this provision does not recognize other forms of sexual
harassment such as psychological pressure. It also fails to provide mechanisms by which
women feel secure in making complaints about incidents of sexual harassment. 102
Sri Lanka’s Penal Code contains a provision that addresses the issue of sexual harassment. It
punishes any person who by assault, use of force, or the use of words or actions, causes
sexual annoyance or harassment to another person. It further explains that “unwelcome sexual
advances by words or action used by a person in authority” would be considered an
offence. 103 The Court of Appeal, however, dealt with this issue in a unique manner in the case
of Kathubdeen v. Republic of Sri Lanka 104. In this case the accused was a senior manager of
the security division of a public sector enterprise. The complainant was a security guard
working within this division and came under the supervision and control of the accused who
was her immediate superior. She requested a transfer to another city where her husband
resided. The accused told her that “she should spend time with him as husband and wife” in
order to help get a transfer, which she refused. Her transfer request was denied. Her case was
that the accused refused to give her transfer due to her unwillingness to accede to his
demands. She even verbally informed the deputy General Manager of this harassment but
was reluctant to make a complaint in writing. The deputy General Manager sent a
confidential letter about this situation to the Bribery Commissioner’s Department and
investigations commenced.
At this point the complainant made a statement to the Bribery Officers. Thereafter they
organized a set up of the accused whereby the complainant introduced the accused to a friend,
purportedly a married woman whose husband had left her and was willing to do anything to
secure a job. The complainant also expressed her willingness to sleep with the accused in
order to obtain a transfer. The accused invited the complainant and her friend to his house
where he was willing to discuss the complainant’s transfer application and the friend’s job
application. On visiting his house the complainant and her friend were let in by the accused
who was dressed in a sarong. He took the complainant into another room and stripped naked,
100 2002. Citation not available. It should be noted that the authors did not have access to this and related
judgments, which are discussed in the immediately following paragraphs. This description is based 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.
101 An Act to Amend Some Nepal Acts for Maintaining Gender Equality, 2006 (Nepal)
102 Section 11, ibid.
103 Section 345, Penal Code, 1883 (Sri Lanka)
104 1998. Citation not available, however, authors have access to full text of the judgment.
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