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Crossposted at Gender Across Borders

Thinking that legislation alone will fix a problem is a dangerous practice, and nothing makes this more evident than the predominance of marital rape in Nepal. As of 2006, anti-marital rape law has been covered in the Act for Gender Equality. This followed on from a 2002 Supreme Court case, Forum for Women, Law and Development vs. His Majesty’s Government/Nepal, in which the Court ruled the marital exemption on rape laws both unconstitutional and against the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women. Well, that sounds great. However, there have been widespread problems with using this law effectively. We’re going to take a look at a few of them.

Tara Bhattarai at the Global Press Institute writes (please note that that piece discusses personal stories of violence):

The Nepali government amended the law against rape to include marital rape six years ago. Still, many women say they have never heard of the term “marital rape” or of the law against it because it is taboo to talk about sex. But even when they become aware, uneducated and educated women alike decline to report their husbands because of this taboo, deeply ingrained notions of respect and economic factors. Some report the abuse instead as domestic violence, but police send most couples home after counseling at the police station and forward few cases to court.

Marital rape has been figured legally as emotional violence and socially as domestic violence, which it is; there’s a real reluctance to call it rape. The upshot of the taboo is that there have been exceedingly few cases filed under the marital rape legislation. Even if wives do manage to avoid being sent home – and likely back to violence – after police deciding they just need counselling, those who do pursue legal avenues often file charges under the Domestic Violence Act 2009. This carries a fine and/or minor jail time.

It’s far from a win. With next to no social support, reporting might well mean giving up one’s home and income. And, should the police decide to pursue it, should the case make it to court, should it be under the correct legislation, and should the rapist be convicted, he will likely be incarcerated for three to six months. I have, shall we say, my issues with this June 2011 editorial from The Kathmandu Post – particularly the celebration of the ruling that rape can only be committed by men and against women – but the unnamed author makes the excellent point that a ‘good place to start reform is to scrap legislation that states that all rape cases must be reported within 35 days of the incident’. That’s not enough time to come to terms with trauma and with the provision of future material requirements. Isha Mehmood at The Advocacy Project points out another major legal loophole: women can only file charges against their husbands; lovers and other family members remain exempt. Moreover, this assumes she has the legal marriage documentation to hand. This is all too much to place on someone trying to hold together her life.

The extent of the problem of Nepalese marital rape is unknown. While experts suspect that it is the most common kind of rape, it’s clear that sexual violence against children is also widespread. Ritu Raj Bhandari, assistant spokesperson at the Ministry of Women, Children and Social Welfare, told the UNFPA that the Ministry works ‘on the basis of studies carried out by non-governmental organizations’. These are piecemeal, and comprehensive national data simply isn’t collected.

Non-governmental organisations like Saathi are working on eliminating violence against women and children in Nepal, and there are a few shelters. Meanwhile, according to the Nepali Times, women’s suicide rates are rapidly climbing, something that has been tied to these violences. There’s nothing like the national, government-backed, major effort Nepal needs.