SC sets precedent on same-sex rape

January 12, 2017 01:40 AM Nabin Khatiwada

We cannot ignore a situation where a woman can rape another woman using sexual object: SC
KATHMANDU, Jan 12: The Supreme Court has set a precedent that a woman can rape another woman and the sexual violence would be equally punishable just like a man rapes a woman.

Giving verdict on a same-sex rape case from Sankhuwashava district, the division bench of justices Bishwambhar Prasad Shrestha and Sapana Pradhan Malla stated that the court should reconsider the modus operandi of crimes while giving its verdict.

"In the given context, giving amnesty to a perpetrator drawing a conclusion that a woman cannot rape another woman could not be a justice. We cannot ignore a situation where a woman can rape another woman using sexual object," stated the full text of the court.

Though the division bench had given the verdict on September 1, 2016 convicting Lakpa Sherpa of Matshyapokhari VDC in Sankhuwashava for raping Yamuna Rai (name changed in the court document), the court has recently prepared the full text of the verdict establishing the precedent.

The court has stated that if a woman deceives another woman and uses any object or sex toys forcefully for her sexual gratification, the act should be considered as a rape. The court has also noted that in the context of the presence of heterosexuals, homosexuals and bisexuals in the society, a rape should be understood as intentional penetration into the vagina or anus of another person with a part of his body or anything else without the consent of the person and stated that the perpetrator could be a man, woman or a third-gender.

Setting the precedent, the bench slapped a seven-year jail term to Lakpa Sherpa, who deceived a minor girl Yamuna Rai (name changed) on March 6, 2011 and derived sexual pleasure with the help of home-made sexual toy made up of pieces of cloths and condom.

As per the statements given by the perpetrator, victim and witnesses, Sherpa was born as a girl and had been married to a man but was living single because of her sexual orientation. In 2011, she was able to deceive Rai by posing as a man and pretended to be in love with her through telephone communication. Rai, who was a minor of 14 years and 7 months at the time of the rape incident, met Sherpa on March 6, 2011. On the same night, Sherpa had a sexual intercourse with Rai but the next morning one of Rai's relatives discovered that Sherpa was a girl and not a boy. When Rai's relatives and neighbors checked Sherpa, they found that there was a pseudo-penis hidden in Sherpa's panty.

Following the incident, Rai filed a written complaint at a local police office alleging Sherpa of rape and attempt of human trafficking.

Hearing the case, the Sankhuwashava District Court had convicted Lakpa Sherpa for unnatural sexual intercourse and her brother Sagar Sherpa for his presence in the crime spot. Then, the Appellate Court, Dhankuta had also convicted Lakpa but acquitted Sagar in lack of evidence. The division bench at the apex court has upheld the verdict of the appellate court.    

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