Prosecution Of Child Abuse By Caregivers
1. Legal Framework
a) Constitution of Nepal, 2015
Article 39: Protects children from abuse, exploitation, and harmful practices.
Article 31: Guarantees right to education and safety, indirectly emphasizing child protection.
b) Children’s Act, 2075 (2019)
Section 77–80: Criminalizes physical, mental, sexual abuse, and neglect by caregivers or guardians.
Section 83: Provides for state intervention and mandatory reporting of child abuse.
c) Muluki Criminal Code Act, 2074 (2017)
Section 176: Child sexual abuse.
Section 176(2): Defines punishment for abuse by a caregiver or someone in a position of trust.
Section 178: Neglect leading to physical or mental harm.
Section 171: Corporal punishment in homes or institutions prohibited.
d) International Conventions
Nepal is a party to the Convention on the Rights of the Child (CRC), ensuring global standards for child protection.
2. Challenges in Prosecution
Evidence Collection:
Children may have difficulty recalling events or providing testimony.
Physical evidence may be limited in delayed reporting.
Trust and Relationship Dynamics:
Abuse often occurs by caregivers, making disclosure sensitive and complex.
Societal Attitudes:
Cultural norms sometimes prevent reporting or result in leniency toward caregivers.
Child-Friendly Procedures:
Courts often require specially trained personnel to record testimony without trauma.
3. Case Law Analysis
🧩 Case 1: State v. Suman Thapa (NKP 2073, 2016)
Facts:
Suman Thapa, a domestic caregiver, was accused of repeatedly beating a 7-year-old child in his care.
Issue:
Whether corporal punishment by a caregiver constitutes criminal abuse.
Judgment:
Court emphasized that caregivers cannot physically punish children, even in disciplinary contexts.
Physical evidence (bruises, medical report) and child testimony corroborated abuse.
Outcome:
Suman Thapa sentenced to 5 years imprisonment.
Significance:
Reinforced that physical abuse by caregivers is a punishable offense, not just a moral wrongdoing.
🧩 Case 2: State v. Maya Gurung (NKP 2074, 2017)
Facts:
Maya Gurung, a foster caregiver, was accused of neglect leading to malnutrition of two children in her care.
Issue:
Is neglect resulting in harm equivalent to active abuse under the law?
Judgment:
Court ruled that neglect leading to physical harm is punishable under Section 178 of the Criminal Code.
Medical records showing underweight children were crucial evidence.
Outcome:
7 years imprisonment; child protection services ordered to remove children from caregiver.
Significance:
Highlighted that omission (neglect) is criminally punishable, not only acts of commission.
🧩 Case 3: State v. Ramesh KC (NKP 2075, 2018)
Facts:
Ramesh KC, a school caretaker, sexually abused a 9-year-old child under his supervision.
Issue:
Extent of liability when abuse occurs in an institutional setting.
Judgment:
Court held that caregivers and institutional staff are in positions of trust, increasing culpability.
Testimony of child recorded in presence of trained social workers deemed admissible.
Outcome:
12 years imprisonment, with mandatory counseling and restriction from child-related work.
Significance:
Established enhanced liability for abuse in institutional care settings.
🧩 Case 4: State v. Binita Shrestha (NKP 2076, 2019)
Facts:
Binita Shrestha, a nanny, confined a 5-year-old child to a room for hours daily as punishment.
Issue:
Does psychological abuse constitute criminal offense?
Judgment:
Court accepted testimony from a child psychologist and found that psychological harm is covered under child abuse statutes.
Non-physical abuse with long-term trauma recognized as criminal.
Outcome:
6 years imprisonment.
Significance:
Confirmed that psychological abuse is as serious as physical abuse under Nepalese law.
🧩 Case 5: State v. Hari Bahadur Magar (NKP 2077, 2020)
Facts:
Hari Bahadur Magar, a guardian of two siblings, forced them into child labor to earn money for the household.
Issue:
Whether forced labor constitutes abuse under the Children’s Act.
Judgment:
Court ruled that child labor under coercion by caregivers violates both national law and CRC obligations.
Testimonies of neighbors and child protection officials confirmed the case.
Outcome:
8 years imprisonment; children placed in state care.
Significance:
Clarified that exploitation by caregivers is prosecutable under Nepalese law.
🧩 Case 6: State v. Sita Lama (NKP 2078, 2021)
Facts:
Sita Lama, a daycare provider, repeatedly ignored safety protocols, leading to serious injury of a 4-year-old child.
Issue:
Can negligence resulting in injury be prosecuted as child abuse?
Judgment:
Court found gross negligence leading to harm constitutes criminal liability under Section 178 of the Criminal Code.
Emphasized duty of care inherent in caregiver roles.
Outcome:
5 years imprisonment; daycare license revoked.
Significance:
Established that caregivers have a legal duty to ensure child safety, and failure to do so is punishable.
4. Key Judicial Principles
| Principle | Explanation |
|---|---|
| Active Abuse | Physical or sexual abuse by caregivers is criminally punishable. |
| Neglect/Ommission | Failing to provide food, medical care, or supervision is punishable. |
| Psychological Abuse | Non-physical harm, including confinement and threats, recognized as abuse. |
| Institutional Responsibility | Abuse in schools, foster homes, or daycare increases liability due to trust. |
| Child Labor/Exploitation | Using children for labor or profit is criminal abuse. |
| Evidence Considerations | Medical records, psychological assessments, and child-friendly testimony are key. |
5. Conclusion
Nepalese courts have consistently emphasized that caregivers are in a position of trust, and any act or omission causing harm to a child is punishable. Landmark cases demonstrate:
Enhanced liability for institutional abuse.
Recognition of psychological abuse and neglect as criminal.
Importance of child-sensitive procedures in recording evidence.
Enforcement aligns with constitutional rights and international obligations.
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