Supreme Court Establishes Precedent: Juvenile Perpetrators Must Pay Compensation to Victims of Sexual Abuse

Kathmandu. The Supreme Court has established a new precedent in cases involving child sexual abuse (child sexual molestation). The Supreme Court ruled that even if the perpetrator of a crime is a minor, they are not exempt from paying compensation to the victim of the crime.

On Wednesday, a joint bench of Supreme Court Justices Sapana Pradhan Malla and Balkrishna Dhakal overturned the decisions of lower courts in a case related to sexual assault, ordering the victimized girl to be awarded NPR 50,000 in compensation. This ruling prioritizes the justice and relief for the victim over the age of the perpetrator in the criminal justice system.

Kapilvastu, on Asar 23, 2074 BS, a 13-year-and-8-month-old boy engaged in unnatural sexual intercourse (anal penetration) with a 7-year-old girl by luring her. In that child sexual abuse case, the Kapilvastu District Court and the Appellate Court Tulsipur (Butwal Bench) convicted the boy and sentenced him to six months in a juvenile reform home according to the Children's Act. However, both lower courts ruled that the victimized girl should not receive compensation, stating that "since the respondent is a minor, he cannot bear the civil liability (compensation)." The government lawyer's office appealed against this specific ruling of the lower courts denying compensation to the Supreme Court.

The Supreme Court overturned the lower courts' decision, calling it a "misinterpretation of the law." The Supreme Court provided four main theoretical interpretations in that case. The court stated, "The Children's Act grants exemption from imprisonment (criminal punishment) to minors based on age. However, that exemption does not mean they are also exempt from paying compensation owed to the victim." It further clarified, "Punishment is the penalty the perpetrator receives for causing pain, whereas compensation is the relief the victim receives for the suffering endured. These are two separate matters."

In making this ruling, the Supreme Court based its decision on the precedent set in the case of Munna Mia Ansari (also known as Gulab Mia) versus the Government of Nepal, involving unnatural sexual intercourse (sexual assault) with a minor. In that case, the court interpreted: "The legal provision regarding compensation is for providing financial compensation or other reparation to a person who has suffered mental, physical, material, or social damage, as the value of that damage. When the law clearly provides for compensating the victim, denying compensation to the victimized minor because the respondent is also a minor would contradict the right to equality enshrined in Article 18(1) of the Constitution, which states that no one shall be denied equal protection of the law, leading to a situation of further injustice upon injustice for the victim. It is not reasonable to absurdly interpret the provision in the Children's Act, 2048, which provides some concession in punishment for offenses committed by children compared to adults because it is a special act, as also providing an exemption from the liability to pay compensation."

The court determined that the victim should not be denied access to the relief fund. Stating that the victim's constitutional rights cannot be curtailed, the court ruled: "Article 21(2) of the Constitution of Nepal ensures the 'right to justice including compensation' for victims of crime. If compensation is not provided simply because the perpetrator is a minor, it would result in 'further injustice upon injustice' to the victimized girl and would also violate the right to equality guaranteed by the Constitution."

The court stated in its ruling: "In the absence of any legal provision stating that compensation should not be recovered because the respondent is a minor, deciding not to recover compensation from the respondents in the present case from the 7-year-old victimized minor results in a misinterpretation of the legal provision under Section 9(a) of the chapter on sexual assault regarding the victim's right to receive appropriate compensation from the respondent, leading to the victim being deprived of her right to receive appropriate compensation as per the law." Furthermore, the court stated that legal benefits cannot be misinterpreted to deprive someone of them: "No one has the right to deprive anyone of a benefit granted by any law through misinterpretation. The right to deprive someone of a benefit granted by law must also be granted by law. Section 11 of the Children's Act, 2048, provides some concession in punishment based on age for children under the criminal liability of children compared to other persons. This concession in punishment cannot be said to be a concession in the compensation that the victimized child receives."

The court determined that granting concessions based on minority would lead to increased impunity in the coming days. The Supreme Court warned that if the interpretation continues that minors do not have to pay compensation when they commit a crime, it would lead to social degradation and encourage impunity.

The Supreme Court further explained and stated that it established the principle of Parens Patriae, meaning the state is the ultimate guardian of incompetent persons or children. Therefore, if the perpetrator minor cannot pay compensation, the state must assume that liability, but the victim cannot be sent away empty-handed.

The Supreme Court provided three options for recovering the compensation. While ruling to award NPR 50,000 in compensation to the victimized girl, the Supreme Court outlined how the amount should be recovered: The first option is to recover the amount from any property registered in the name of the respondent (the minor perpetrator). The second option, if the boy has no property in his name, is to recover the amount from the share the boy is entitled to from the property registered in the names of his parents. The third option, if compensation cannot be recovered from both the above situations, is to provide the said NPR 50,000 to the victim from the 'Victim Relief Fund' (Government of Nepal) established according to the law.