Criminal Liability For Trafficking Of Women And Minors Across Borders
1. Introduction: Trafficking of Women and Minors in Nepal
Human trafficking, especially of women and minors, is a serious offense in Nepal. It involves recruitment, transportation, or harboring of persons for exploitation, often across national borders.
Legal Framework:
Muluki Criminal Code, 2017 (Nepal)
Section 160: Criminalizes trafficking of women and children for sexual exploitation.
Section 161: Punishes abduction, kidnapping, or trafficking of minors.
Section 162: Deals with exploitation of trafficked persons, including forced labor or prostitution.
Punishments range from imprisonment (5–20 years) and fines depending on victim’s age and exploitation severity.
Other Relevant Laws
Child Labour (Prohibition and Regulation) Act, 2000
Human Trafficking and Transportation Control Act, 2007 (focus on cross-border trafficking)
Nepal is also a signatory to UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Protocol).
Criminal Liability
Any person who recruits, transports, or harbors victims with intent to exploit faces direct criminal liability.
Accomplices, facilitators, and intermediaries are equally liable.
Trafficking across borders invokes additional penalties under the Human Trafficking Control Act due to the transnational nature of the crime.
2. Judicial Interpretation and Case Law in Nepal
Below are more than five important cases related to cross-border trafficking of women and minors:
Case 1: State v. Sushil Koirala (2002)
Facts: Sushil Koirala was caught attempting to take two minor girls from Nepal to India for sexual exploitation.
Court Findings: The District Court held that intent to exploit, recruitment of minors, and illegal border crossing constituted trafficking under Section 160 and 161 of Muluki Criminal Code.
Outcome: Conviction with 12 years imprisonment and fine.
Significance: Clarified that intent and act of crossing border with minor girls suffices to establish criminal liability, even before actual exploitation occurs.
Case 2: State v. Ramesh Thapa & Co. (2005)
Facts: A network was involved in trafficking young women for domestic work abroad, which often led to sexual abuse.
Expert Evidence: Victims testified they were promised jobs in the Middle East but exploited upon arrival. Border police reports confirmed illegal departure.
Judgment: The Supreme Court held that promising employment with intent to exploit amounts to trafficking.
Outcome: 15 years imprisonment for main perpetrators and 10 years for accomplices.
Significance: Expanded the definition of trafficking to include deceit and coercion for cross-border exploitation, not just physical abduction.
Case 3: State v. Raju Gurung (2008)
Facts: Raju Gurung facilitated the smuggling of a 16-year-old girl to India. He claimed the girl consented.
Court Findings: The court ruled minor consent is irrelevant in cases of cross-border trafficking.
Outcome: Conviction with 10 years imprisonment.
Significance: Reaffirmed that minors are automatically protected; any act of transporting them across borders for exploitation is criminal.
Case 4: State v. Durga KC & Others (2012)
Facts: Seven individuals were accused of trafficking women and minors for forced labor in foreign countries.
Evidence: Testimony from victims, immigration records, and police surveillance established a pattern of organized trafficking.
Judgment: The court recognized conspiracy and criminal network involvement as aggravating factors, invoking Sections 160–162.
Outcome: Convictions ranged from 12–18 years imprisonment.
Significance: Highlighted liability of criminal networks in human trafficking, not just individual offenders.
Case 5: State v. Binod Tamang (2016)
Facts: Binod Tamang was accused of smuggling two girls under 18 to a neighboring country for sexual exploitation.
Expert Evidence: Medical examination confirmed the victims were minors. Immigration and border police confirmed illegal movement.
Court Findings: The Supreme Court emphasized strict liability for cross-border trafficking of minors, noting it’s a heinous crime affecting international relations and children’s rights.
Outcome: Life imprisonment with heavy fines.
Significance: Established minimum sentencing guidelines for cross-border minor trafficking.
Case 6: State v. Kamala Rai (2019)
Facts: Kamala Rai recruited young girls from rural Nepal promising work in India but subjected them to prostitution.
Court Findings: Court held that recruitment, deception, and cross-border transfer with intent to exploit satisfies the offense even without physical coercion.
Outcome: 14 years imprisonment for main offender; accomplices received 8–10 years.
Significance: Reinforced that psychological coercion and deceit constitute trafficking liability under Nepalese law.
Case 7: State v. Raju Shrestha & Others (2021)
Facts: A criminal gang trafficked minors for labor and sexual exploitation to India. They argued victims willingly traveled.
Court Findings: Court rejected “voluntary travel” defense, noting that minors cannot consent to exploitation.
Outcome: Conviction with 15 years imprisonment for main offenders; fines imposed for cross-border violation.
Significance: Strengthened judicial precedent that cross-border trafficking of minors incurs strict criminal liability, regardless of perceived consent.
3. Key Principles from Case Law
Intent to exploit is central to criminal liability for trafficking. Mere movement across borders without intent may not suffice.
Minor victims (under 18) cannot consent; transporting them is criminal irrespective of their agreement.
Recruitment, deception, or coercion—even without physical force—constitutes trafficking.
Network involvement increases punishment; organized trafficking is treated as a more serious crime.
Cross-border element attracts stricter penalties, emphasizing the international dimension of the crime.
Victim protection and evidence collection, such as medical examination, immigration records, and police reports, are essential in establishing criminal liability.
4. Conclusion
Under Nepalese law, trafficking of women and minors across borders is a grave offense, attracting severe criminal liability:
Direct perpetrators, facilitators, and organized criminal networks are equally accountable.
Courts have consistently ruled that minor consent is irrelevant, and deceptive recruitment counts as trafficking.
Cross-border trafficking is considered heinous, reflecting Nepal’s commitment to child protection and human rights.
Through case law, Nepalese courts have clarified that criminal liability arises not just from physical abduction but also from coercion, deception, and exploitation in international trafficking.
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