Napal - Age of Consent

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NEPAL LAWS: 1. Male homosexual sex is forbidden by law, punishable with a maximum
sentence of life in prison.

Source:  http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/

"Nepal - Népal - Nepal           Kathmandu

Answer 04/02/1998, Telefax, Ref. : 4/03/IP/208/(054-55) N°183

" With reference to your message DII/SD1/T4233/GC/HB/ASM, please be informed that we do not have any
legal provision on Child Abuse. "

Subodh Ghimira (Dy. Supdt. Of Police), NCB-Unit "

 

 

 

Applicable Indian and Nepali Law

Trafficking in human beings and the abuses associated with it are explicitly prohibited under many of India's domestic laws, including the IndianConstitution, specific anti-trafficking acts, the Indian Penal Code, and in state and local ordinances. The problem, therefore, lies not in absence of legal sanctions but in the lack of consistent enforcement.

The Indian Constitution specifically bans the traffic in persons. Article 23, in the Fundamental Rights section of the constitution, prohibits "traffic in human beings . . . and other similar forms of forced labour." Article 39 guarantees equal treatment of men and women and obligates the state to ensure "that the health and strength of workers, men and women . . . and children are not abused . . . and that children and youth are protected against exploitation . . ." Article 42 protects against inhumane working conditions.

The two principal Indian laws that address trafficking and prostitution in particular are the Suppression of Immoral Traffic in Women and Girls Act of 1956 (SITA) and the Immoral Traffic (Prevention) Act of 1986 (ITPA), colloquially called PITA, an amendment to SITA. Neither law prohibits prostitution per se, but both forbid commercialized vice and soliciting.84 Aside from lack of enforcement, SITA is problematic in several ways. One of its chief drawbacks is that the prescribed penalties discriminate on the basis of sex: a prostitute, defined under SITA as always a woman, who is arrested for soliciting under SITA could be imprisoned for up to a year, but a pimp faces only three months.85 SITA allowed prosecution of persons other than the prostitutes only if the persons involved "knowingly" or "willingly" made women engage in prostitution. Accordingly, pimps, brothel owners, madams,and procurers could feign ignorance of prostitution and escape punishment. The client, moreover, was not viewed as an offender and could not be sanctioned under SITA.86 Finally, SITA only addressed street prostitution;
prostitution behind closed doors was left alone—a loophole that actually promoted the establishment of brothels.

The Immoral Traffic (Prevention) Act of 1986 (ITPA)87 amended the 1956 SITA in important ways. However, its basic goals and premises remain much the same as those of SITA.88 Although prostitution as such is not prohibited under ITPA, this statute contains nine   punishable offenses, including operating a brothel, abetting in brothel keeping, living off brothel earnings, procuring, detaining, activity in vicinity of public places, seducing or soliciting.89 Ironically, ITPA does not authorize the police actually to closebrothels.90 Unlike SITA, ITPA recognizes that men and children can also be sexually exploited for commercial purposes, and introduces stiff penalties against those who profit from the prostitution of minors and children.91

ITPA also expands police power to prevent trafficking, but at the same time attempts to curb the potential abuse of power by the police during raids—such as verbal, physical and sexual harassment. Whereas SITA empowered a special police officer to conduct a search of any premises without a warrant, ITPA extends these powers to the accompanying trafficking police officers who enter the premises. However, ITPA prohibits male police officers from conducting a search unless accompanied by two female police officers. Interrogation of women and girls also has to be undertaken by female police officers. If this is not possible, the women and girls can be questioned only in the presence of a female member of a recognized welfare organization. Additionally, the act mandates rehabilitation of prostitutes in "protective homes," shelters or reformatories where education and living facilities are to be provided.92

Aside from statutes that address the traffic in persons particularly, other existing legislation, including the Bonded Labour System (Abolition) Act and Article 376 of the Indian Penal Code (IPC), explicitly forbid the purchase and sale of human beings, forced labor and all forms of bonded labor. The IPC also prohibits the trafficking and sale of minors.93 In addition, existing rape, assault, and abduction laws can be used to address the systematic abuse of women and girls in brothels described in previous sections.94 Article 375 of the IPC defines rape as the act of engaging in sexual intercourse with a woman when the act is against her will; without her consent; with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or injury; with her consent when she is incapable of understanding the consequence of her consent; or when she is under sixteen years of age. Rape laws are applicable to both brothel staff and customers.95

The Indian Ministry of Human Resources Development's (HRD) Central Advisory Committee on Prostitution96 released a report in May 1994 that acknowledged the organized and international nature of the trafficking industry and the use of coercion and force in procuring women and girls for prostitution. The report called for paramilitary forces to check the entry of females from abroad and advocated implementation of Section 13(4) of the ITPA which authorizes the appointment of a centralized anti-trafficking force with interstate jurisdiction. In June 1994 the Central Bureau of Investigation (CBI) responded to the HRD Ministry's invitation and agreed to assume responsibility for trafficking enforcement, pending additional funding.97

Nepal's 1990 Constitution, its civil code and several specific laws forbid the trafficking and sale of women and children and other forms of slavery-like practices. Article 20 of the Nepali Constitution states, "Traffic in human beings, slavery, serfdom or forced labour in any form is prohibited. Any contravention of this provision shall be punishable by law . . . "

The constitution is supplemented by a national legal code called the Muluki Ain, which contains provisions against interstate and domestic trafficking in human beings.98 Section 1 of the law governs "traffic in human beings," while Section 3 forbids slavery and all other "transactions in human beings."99

Article 4 of the Traffic in Human Beings (Control) Act of 2043 (1986/1987) expressly forbids the sale of "human beings with any motive; the transport of "any person abroad with intent of sale," the act of "compel[ling] any woman to take to prostitution through allurement or enticement, deceit,threats, intimidation, pressures or otherwise; and "conspiracy for committing any of the acts mentioned." The act applies the same penalties to these offenses regardless of whether they are committed inside or outside Nepal's territorial boundaries and makes no distinction between crimes committed by Nepalis and by foreigners. The law dictates prison terms of ten to twenty years for trafficking in human beings and, disturbingly, reverses the burden of proof, requiring the accused in a trafficking case to disprove the charges.100

With regard to minors, Section 2 of the Muluki Ain prohibits the enticement and separation of children under sixteen from their legal guardians.  Pimping and solicitation of prostitutes is forbidden under Section 5 of a law titled "Intention to Commit Adultery."101 Intercourse with a child under fourteen is considered rape, regardless of consent.102

In May 1992, two years after Nepal ratified the U.N. Convention on the Rights of the Child, it passed the Children's Act 2048. This law, which defines a child as any person under sixteen years of age, prohibits torture and cruel treatment, the use or involvement of any child in an "immoral profession," child pornography, the sale of girl children as religious offerings to temple deities, and child labor.103

84 SITA, a penal law, was passed in 1956 and enforced in 1958 as a consequence of India's signing the Trafficking
Convention, rather than as a result of any mass social welfare movement. SITA did not seek the "abolition of prostitutes and
prostitution as such and to make it per se a criminal offence or punish a person because one prostitutes oneself." Its stated goal
was "to inhibit or abolish commercialised vice, namely the traffic in persons for the purpose of prostitution as an organised
means of living." Prostitution was defined as the act of a female who offers her body for promiscuous sexual intercourse for
hire. Accordingly, the engagement by a woman in individual, voluntary, and independent prostitution was not an offense.

85 The law permitted penalization of a woman found to be engaged in prostitution under certain conditions. For example,
Section 7(i) penalized a woman found engaged in prostitution in or near a public place. Section 8(b) did the same for a woman
found seducing or soliciting for purposes of prostitution. The law also permitted a magistrate to order the removal of a person
engaged in prostitution from any place and to punish the person upon refusal. Offenses under SITA were bailable, but a woman
picked up from the street by the police usually did not have either the money or the influence to keep herself out of custody or
free from fines.

86 Indeed, clients sometimes were called as witnesses against women accused of prostitution. Police could arrest clients only
by applying the indecent behavior and obscenity sections of local laws, or the Indian Penal Code. For example, Section 110B
of the Bombay Police Act penalizes indecent behavior and allows for the arrest of pimps and prostitutes.

87 The changes in the title of the act represented important conceptual as well as policy shifts, most importantly, the recognition
of the range of victims was extended from women and girls to persons. Various other definitions were reworked in the 1986
act. Prostitution, which had been "the act of a female offering her body for promiscuous sexual intercourse for hire," became
"the sexual exploitation or abuse of persons for commercial purposes." The shift in emphasis from promiscuity to exploitation
was particularly significant, especially for Nepali women whose abuse was justified on the basis of their reputed "promiscuity."

88 Many of the amendments ITPA made to the 1956 law endeavored to broaden the act to include both men and women as
the exploited parties, and all parties involved in prostitution. But in some cases the amendments actually served to further
discriminate against women in prostitution. For example, according to ITPA, whoever attempts to solicit "by words, gestures,
wilful exposure of her person . . . for the purpose of prostitution," shall be subject to up to one year imprisonment (six months
for a first offense) and a fine of up to Rs. 500 (US$16). But a 1986 amendment to the law adds that if the offense is committed
by a man, the mandatory sentence ranges from only seven days to three months.

89 In the case of soliciting, women are subject to much longer terms of imprisonment than men found guilty of the same offense.
Procurers of prostitutes or those found guilty of inducing someone to undertake prostitution are subject to a prison sentence of
three to seven years and a fine of Rs.2,000 (US$66); a second conviction carries a mandatory prison sentence of seven to
fourteen years. A first conviction forbrothel keeping under ITPA carries a mandatory prison term of one to three years and a
fine of Rs.2,000 (US$66). A second conviction is punishable by two to five years' rigorous imprisonment and a Rs.2,000 fine.
Anyone convicted of living on the earnings of a prostitute is subject to seven-year imprisonment and a fine of Rs.1,000
(US$33) or ten years if the prostitute is a child. Any person who engages in prostitution in a public place and any customer with
whom the prostitution is carried out are subject to up to three months in prison. If the offense involves a minor, the prison term
can range from seven years to life.

90 Under ITPA a brothel was redefined broadly as any place where sexual exploitation or abuse occurred. Accordingly, under
Section 3 of ITPA, the keepers of any place where sexual abuse occurred could be prosecuted. In the case of trafficked
women, this would now cover the houses and room where the newly-trafficked girls and women were physically and
psychologically broken, in the process called "training." ITPA also attempts to eliminate the loophole of lack of knowledge
which SITA afforded brothel keepers and owners by placing the burden of proof on the landlord conditionally. However, the
primary condition under which ITPA can presume that a landlord has knowledge of the illegalities on his premises is extremely
unlikely to be met and therefore effectively useless: that a newspaper report names his premises as used for prostitution.

91 Girls and women are treated differently under SITA, although their exploiters are not. SITA had defined adulthood as
twenty-one years. Accordingly, an adult woman prosecuted for soliciting or prostituting in a public place would be tried in court
and, if convicted, sent to a protective home or institution, whereas a girl was immediately referred for rehabilitation. However,
the punishments for exploiters of women and girls were the same. Now, ITPA makes distinctions between "major," "minor,"
and "child." The act defines as a "child" anyone who is under sixteen years of age. Persons between sixteen and eighteen years
are considered "minors," and anyone eighteen or older is an adult or "major." Those who exploit minors or children are subject
to prison terms of not less than seven years and not more than ten years.

Contrary to the internationally recognized right to equal protection of the law, ITPA reverses the burden of proof for adults.
While children and minors arrested under the act are presumed innocent, those over eighteen are required to prove their
innocence. ITPA's additional clause addressing the offense of procuring carries rigorous imprisonment of seven to fourteen
years in the case of a minor and seven years to life in the case of a child. Similarly, prostitution of a minor or child in a public
place is punishable with seven years to life, or up to ten years along with a fine. However,these measures are effectively
weakened by the discretionary powers given by the ITPA to the court to reduce the term of imprisonment to below the
seven-year minimum for offenses such as detaining a person for prostitution or seduction of a person in custody.

The implications of this provisions are particularly serious for women and girls trafficked over long distances, as in the case of
Nepali women and girls. Not only does the exercise of the court's discretionary power dilute the general legal threat to persons
who traffic women from abroad, but it also reduces the effective impact of laws against other abductors and kidnappers who
imprison women and girls in brothels far from their homes. Women and girls transported over long distances and detained for
prostitution face greater obstacles in attempting to escape from the brothel system, due to distance and differences of language
and culture. Even if they manage to escape from their original captors they risk falling prey to other abductors and kidnappers
who do not fear long jail sentences for their actions. ITPA introduces another clause whereby if a person is found with a child in
a brothel it is presumed, unless proved to the contrary, that the child has been detained for prostitution.

92 However, a Supreme Court review of one such facility in Delhi between 1979 and 1981, and subsequent independent
studies conducted in 1990 of the same home and of the Liluah home in Calcutta, found that inmates of "protective homes,"
including former brothel inmates, women charged with criminal offenses and "non-criminal lunatics," were housed together in
appalling conditions, denied adequate food and clothing and provided with no vocational training. There were also reports of
forced prostitution and bonded labor. In the Liluah Home for Destitute Women, in Calcutta, a survey by university students
found the institution to be severely overcrowded. Inmates complained of grave mistreatment, including branding with hot irons,
rapes, and sexual assaults. Almost all inmates were suffering from malnutrition. Many also had chronicskin diseases and
tuberculosis. See, Telegraph, "House of Horror; The Liluah Home: Where inmates are starved, assaulted, degraded, molested
and humiliated," July 29, 1990. See also Arun Bhandari et al., Women and AIDS: Denial and Blame; A Citizen's Report
(New Delhi: Saraswati Art Press, November-December 1990), pp. 46-49.

93 In addition, Sections 372 and 373 of the IPC state that anyone who buys, sells or obtains possession of any person under
the age of eighteen for prostitution, illicit intercourse, unlawful or immoral purposes, or knowing that such use at any age is
likely, is subject to up to ten years' imprisonment. The IPC also contains prohibitions against indecent assaults on women
(Section 354), kidnapping, abduction, and wrongful confinement (Sections 359-368), and mandates imprisonment of up to ten
years for the procurement or import of minors for the purposes of illicit intercourse, kidnapping and abduction leading to
grievous hurt, slavery or subjection to "unnatural lust" (Section 367).

94 In the case of sexual assault by police or police complicity in sexual abuse of trafficking victims, the Criminal Law
(Amendment) Act of 1983, enacted as a result of a 1983 case of custodial violence against women in police lockups in
Mathura, provides for the offense of custodial rape and prescribes a mandatory ten years' imprisonment for any police officer
who rapes a woman in custody. Custody is customarily understood to include situations where the victim is effectively under the
control of the police or security forces; it is not limited to conditions of detention in a prison or lockup.

95 Male brothel staff who use rape to "break in" new girls are clearly subject to these laws. Under the IPC a minimum term of
seven years' imprisonment may be imposed for rape. In addition, Section 376 of the IPC states: "Where a woman is raped by
one or more in a group of persons acting in furtherance of their common intention,each of the persons shall be deemed to have
committed gang rape within the meaning of this subsection."

96 Part of the Human Resources Ministry's Department of Women and Child Development.

97 Pioneer (Delhi), June 28, 1994.

98 The Muluki Ain was first codified in 1854. It was promulgated anew after the adoption of the 1962 Constitution, has been
amended many times since then, and remains in effect today.

99 The Muluki Ain decrees prison sentences of twenty years for international trafficking cases where the victim has already
been sold, and sentences of ten years' imprisonment for attempted sale, plus fines equivalent to the amount of the transaction. In
cases where the purchaser is found within Nepal's borders, he or she is subject to the same punishment as the seller. Muluki
Ain (Jiu Masne Ko), amended October 2, 1964, and December 19, 1975.

100 The presumption of innocence is a fundamental principle laid down in Article 14(2) of the ICCPR. Reversing the burden of
proof in trafficking cases is therefore a breach of international law. Note: Trafficking cases are prosecuted by a government
prosecutor, and traffickers retain private defense. This has meant that activists and human rights lawyers who follow trafficking
as an issue of concern have had little access to court documents or information about the process of ongoing legal cases.
Likewise, women who have made complaints against traffickers, assert that they were not kept informed about the progress of
these cases.

101 Muluki Ain, "Intention to Commit Adultery" (Asaya Karani Ko), amended December 19, 1975. Section 5 states: "In
cases where a person entices a woman with the intention of arranging sexual intercourse with himself or with any other person,
or arranges contacts and affairs with prostitutes, he shall be punished with imprisonment for a term ranging from six months to
two years, or with a fine ranging from Rs. 500 to Rs. 6000, or both."

102 Muluki Ain, "On Rape," (Jabarjasti Kavani Ko), Section 1, amended December 19, 1975.

103 The Children's Act 2048; A Bill to Provide for Safeguarding the Interests of Children, was signed by the king on May 20,
1992. Section 15 states: "Children [shall] not be made involved in immoral professions"; Section 13 prohibits "offering of girl
child in the name of God or Goddess"; Section 5 prohibits discrimination between sons and daughters; and Section 7 forbids
torture and cruel treatment.

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