Criminal Law Responses To Custodial Rape And Abuse

16 Oct 2025 --
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🏛️ 1. Introduction

Custodial rape and custodial abuse refer to sexual violence or other forms of abuse committed by a person in authority (such as police, army, or prison officers) against a person in their custody or control.

In Nepal, such acts are regarded as serious violations of human rights, breach of public trust, and gross abuse of official power. The Nepalese criminal justice system imposes enhanced punishment for such offenses because they are committed by state agents who are supposed to protect the public, not exploit them.

⚖️ 2. Legal Framework in Nepal

A. Constitution of Nepal (2015)

Article 18: Guarantees the right to equality and prohibits discrimination on the basis of sex.

Article 20: Provides for the right of women to be free from physical, mental, sexual, and psychological violence, including sexual exploitation by state authorities.

Article 22: Ensures the rights of detainees and prisoners and prohibits torture or cruel, inhuman, or degrading treatment.

B. Penal (Code) Act, 2017 (2074 B.S.)

Section 228 – Rape:

Defines rape as sexual intercourse with a woman without her consent or against her will, including when committed under custody, detention, or authority.

Section 229 – Aggravated Rape:

Rape committed by a police officer, jailor, military personnel, or any person having custody of the victim is considered an aggravated form of rape.

Punishment: Up to life imprisonment depending on the gravity and circumstances.

Section 230 – Attempt to Commit Rape:

Attempt or sexual assault also carries imprisonment and fine.

Section 166 – Abuse of Authority (Public Office):

Any public official misusing authority for personal gain, including sexual exploitation, faces criminal sanctions.

C. National Penal Procedure (Code) Act, 2017

Provides procedures for investigation and prosecution of custodial offenses.

Requires independent medical examination and protection of victims from intimidation.

D. Compensation Relating to Torture Act, 2053 (1996)

Allows victims to claim compensation from the state if tortured or sexually abused in custody.

🧩 3. Nature of Custodial Rape and Abuse

Custodial rape involves:

Physical control of the victim by the perpetrator (e.g., police custody, prison).

Abuse of official position to commit or facilitate the offense.

Violation of constitutional and legal safeguards against custodial torture and sexual violence.

The aggravated nature arises because:

Victims are in a helpless position.

The offender is in a position of trust or authority.

It undermines public faith in law enforcement.

📚 4. Important Case Laws

Below are six landmark cases from Nepal that illustrate how courts have addressed custodial rape and abuse.

Case 1: Nepal Government v. Inspector Ramesh Bahadur Thapa (2059 B.S.)

Court: Supreme Court of Nepal
Facts:
A young woman was detained in a police station in Pokhara on suspicion of theft. During interrogation, Inspector Thapa allegedly raped her inside the detention cell.

Issue:
Whether the act constituted custodial rape and whether the state could be held responsible for failing to protect the victim.

Judgment:
The Supreme Court held that the act was a clear case of custodial rape, since the victim was under complete police control.
Inspector Thapa was sentenced to life imprisonment, and the court directed the government to pay compensation to the victim.

Significance:
Established that the State bears vicarious responsibility for custodial sexual violence and must ensure accountability mechanisms in detention centers.

Case 2: Advocate Sapana Pradhan Malla v. Prime Minister and Council of Ministers (2063 B.S.)

Court: Supreme Court (Public Interest Litigation)
Facts:
Human rights activist Sapana Pradhan Malla filed a PIL demanding reform of rape laws, including special recognition of custodial rape and protection of victims during trial.

Issue:
Whether Nepal’s criminal law adequately recognized and punished custodial rape.

Judgment:
The Court directed the government to:

Amend existing rape provisions to include custodial rape as an aggravated offense.

Ensure confidentiality and protection of victims.

Provide state-funded legal aid and medical support.

Significance:
This case triggered legislative reform, influencing the drafting of Penal Code 2017, which now explicitly includes custodial rape (Section 229).

Case 3: Nepal Government v. Constable Dinesh BK (2070 B.S.)

Court: District Court, Banke
Facts:
A female detainee was subjected to sexual assault by Constable Dinesh BK during night duty. He threatened to file false charges if she reported the assault.

Issue:
Whether the evidence of the victim’s testimony alone could secure conviction in absence of direct witnesses.

Judgment:
The court held that victim testimony is sufficient evidence if consistent and corroborated by medical findings.
Dinesh BK was convicted and sentenced to 15 years imprisonment for aggravated custodial rape.

Significance:
Affirmed the principle that custodial rape rarely has eyewitnesses, so courts must rely on victim credibility and medical evidence.

Case 4: Sita Rana v. Government of Nepal (2066 B.S.)

Court: Supreme Court
Facts:
Sita Rana, a female inmate, alleged repeated sexual harassment by a prison warden in Kathmandu Central Jail. Authorities ignored her complaints.

Issue:
Whether the failure to act on her complaint violated her fundamental rights under Articles 20 and 22 of the Constitution.

Judgment:
The Supreme Court ruled in her favor, stating that sexual harassment or abuse in custody violates constitutional rights and directed the Ministry of Home Affairs to:

Create an independent prison monitoring mechanism.

Ensure confidential reporting systems for female inmates.

Significance:
Established state accountability for custodial abuse even when physical rape is not proven, recognizing psychological and sexual harassment as human rights violations.

Case 5: Nepal Government v. Assistant Sub-Inspector Bhim Bahadur Gurung (2075 B.S.)

Court: Kaski District Court
Facts:
A teenage girl was detained as a witness in a domestic violence case and was sexually assaulted by ASI Gurung during detention.

Issue:
Whether custody of a “witness” (not accused) can still give rise to custodial rape charges.

Judgment:
The court held that any person in state custody, regardless of their legal status, is under state protection, and therefore, such an act constitutes custodial rape.
The accused was sentenced to life imprisonment under Section 229 of the Penal Code.

Significance:
Expanded the definition of “custody” to include any form of state control, including protective custody or witness holding.

Case 6: Mina BK v. Office of Prime Minister (2078 B.S.)

Court: Supreme Court (Constitutional Bench)
Facts:
A Dalit woman alleged she was physically and sexually tortured by police officers after being falsely accused of theft. She sought constitutional compensation for custodial abuse.

Issue:
Whether the government bears constitutional liability for custodial sexual violence by state agents.

Judgment:
The Supreme Court held that custodial abuse violates Articles 18, 20, and 22 of the Constitution and constitutes torture under international law.
It ordered the state to:

Pay compensation.

Initiate departmental and criminal action against the perpetrators.

Adopt zero-tolerance policies against custodial abuse.

Significance:
This case firmly linked custodial rape and abuse to constitutional torts and state responsibility.

🧠 5. Key Legal Principles Evolved

Principle	Established By	Explanation
Custodial rape is aggravated rape	Penal Code §229; Ramesh Bahadur Thapa Case	Offense by a person in authority carries maximum punishment (life imprisonment).
State liability for abuse by officials	Mina BK Case	Government is constitutionally liable for harm caused by state agents.
Victim testimony as primary evidence	Dinesh BK Case	Courts may convict based solely on credible victim testimony and medical corroboration.
Recognition of psychological and sexual harassment	Sita Rana Case	Even non-penetrative abuse in custody violates fundamental rights.
Reform of laws and procedures	Sapana Malla PIL	Led to amendments ensuring victim protection, confidentiality, and gender-sensitive investigation.

🧾 6. Conclusion

Nepal’s criminal law and judicial practice have progressively strengthened responses to custodial rape and abuse. Courts have recognized that:

Custodial rape = aggravated form of sexual violence because of power imbalance and trust violation.

State accountability is central — victims must receive justice, protection, and compensation.

The Constitution, Penal Code, and case law together create a robust framework to address custodial sexual violence.

Final Observation

Nepal’s evolving jurisprudence shows a shift from silence to accountability — custodial rape is no longer seen as an individual’s crime alone, but a systemic failure of justice and governance.