Why the statute of limitations on rape cases is against fundamental rightsThere is renewed debate on removing the limit while reporting cases of sexual violence.
A former child actor and model’s accounts of alleged sexual violence—recounted in 20 video clips that were shared widely across social media—have stirred Nepalis, leaving them angry and frustrated with the country’s legal system.
Detailing multiple incidents of rape and sexual violence she suffered at the hands of multiple people, as early as 2014 when she was just 16 and starting her modelling career, the woman, now 24, decried the statute of limitations as a major barrier to accessing justice.
The statute of limitations on rape states that complaints must be filed within a year from the date of the incident. This time limit for seeking legal remedy, as legal experts have pointed out, is restrictive, unconstitutional and against fundamental principles of human rights.
On May 24, four days after the woman opened up about the violence she endured, a group of six female lawyers filed a petition at the Supreme Court demanding a complete removal of the statute of limitations on rape.
Here’s what you need to know about the statute of limitations and how it is a barrier to justice for survivors of sexual assault in Nepal.
What is the statute of limitations?
In legal terms, the statute of limitations is a law that sets the time frame within which parties involved in any dispute have to initiate legal proceedings. The clock starts ticking from the date of the alleged offence for any dispute, whether civil or criminal.
According to Section 292(2) of the National Penal Code, a plaintiff can file a complaint only within a year of being raped.
The same time limit has been set for filing complaints of sexual harassment and child sex abuse.
In addition, where an offence is committed against a person held in detention, taken under control, kidnapped or taken hostage, any legal proceedings can be brought only within three months from the date of release from such detention, control, kidnapping or hostage-taking.
However, according to Section 292(2) of the Code, there is no statute of limitations in cases related to incestual rape.
How has the statute of limitations changed over time?
In July 2008, the Supreme Court issued a directive order in the name of the government to make legal provisions to increase the statute of limitations for cases of sexual violence in order to ensure justice to the victims.
Sapana Pradhan Malla, who is currently a justice at the Supreme Court, had filed the petition claiming that the statute of limitations for cases involving sexual violence had encouraged impunity.
But successive governments did not heed the apex court’s ruling. It was only in 2015, the year when the new constitution was promulgated, that the Gender Equality Act 2006 was amended repealing discriminatory provisions and the limit of 35 days for filing rape cases was extended to six months.
Then in 2017 when the government drafted the new penal code amending the existing Muluki Ain, under Muluki Criminal Code 2017, the statute of limitations was increased to one year.
This came into effect in May 2018.
On May 24, 2022, six young female lawyers filed a petition at the Supreme Court demanding the removal of the statute of limitations for rape, in light of the former child actor’s accounts of rape and sexual violence that occurred eight years ago.
Why is it necessary to repeal the statute of limitations?
Various reports on sexual violence have stated, time and again, that the statute of limitations perpetuates the culture of impunity in Nepal.
Victims, in almost every case, have to face stigma, shame, intimidation, trauma, damage, continuous threats and fear from the perpetrators.
Reports have also pointed out that, in the context of childhood sexual violence, violations might not even be recognised as such by the victim until many years later. In other instances, such as coercive domestic violence or intimate partner situations, victims often face a plethora of barriers to recognising the crime, and deciding to seek a legal remedy.
Additionally, for victims of conflict-era rape, political violence or social disturbance, many social and political barriers do not create a conducive environment for filing complaints.
Survivors of rape committed during Nepal’s civil war have been systematically denied recognition or justice.
In these instances, the statute of limitations imposes an unfair and overwhelming burden on victims and allows the perpetrators to evade justice.
It creates a procedural barrier to accessing justice.
Access to justice is a fundamental right. According to basic principles of the rule of law, justice is every person's indispensable need. No individual can be barred from seeking justice or exercising their rights.
By impeding access to justice for victims of such heinous crimes, the statute of limitations also violates the fundamental human rights of the citizens.
How is it in violation of the constitution?
Under the Constitution of Nepal, 2015, there are two provisions that guarantee the right of a victim of crime—in Article 21 and the rights of women against any forms of violence in Article 38(3).
Clause (1) of Article 21 states, “a victim of crime shall have the right to get information about the investigation and proceedings of a case in which he or she is the victim.” Clause (2) states: “a victim of crime shall have the right to justice including social rehabilitation and compensation in accordance with the law”.
Moreover, Article 38 (3) states that “no woman shall be subjected to physical, mental, sexual, psychological or other forms of violence or exploitation on grounds of religion, social, cultural tradition, practice or on any other grounds. Such an act shall be punishable by law, and the victim shall have the right to obtain compensation in accordance with the law.”
The statute of limitations, by hindering victims’ access to justice, keeps them from exercising their constitutional rights.
Despite the constitutional right of women who have been raped to demand justice, such limitation goes against the values of the constitution.
How does the statute of limitations leads to double-victimisation?
Individuals who have suffered sexual abuse and violence might be unable to seek legal remedy immediately after such abuse for various reasons. Later, when they finally make up their mind to reach out to law enforcement agencies for justice, it might be too late, given the one-year limit for reporting the crime.
Such legal clauses further add to the woe, stigma, shame, trauma and damage the victim endures.
By not allowing the victim to seek legal remedy, the justice system further victimises the victim.
What is the international practice on statute of limitations for rape laws?
In February 2020, Hollywood mogul Harvey Weinstein was convicted of felony sex crime and rape for crimes committed within the past 30 years.
Closer to home, in India, following the sexual conduct allegation made by Priya Ramani, a journalist, against the then minister of state for external affairs and renowned journalist MJ Akbar, the Delhi High Court ruled that a woman has the right to put her grievances even after decades.
The court ruled that “women cannot be punished for raising their voice against the sexual abuse on the pretext of complaint of defamation”.
There are statutes of limitations imposed on crimes as heinous as rape in countries like the UK, the United States, Canada and Australia.
Various international organisations, such as the International Commission of Jurists (ICJ), Amnesty International, Human Rights Watch, Equality Now, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), have all called for repealing the statute of limitations on rape, time and again.
On Thursday, Amnesty International and Human Rights Watch sent dispatches demanding urgent removal of the restrictive statute of limitations on cases of rape and other sexual violence through amendment saying it is a major obstacle to justice.