Analysis of sentencing policies

regarding sexual offences committed

by a minor: A Nepalese Perspective

Sujana Koirala
B-152
B.A.LL.B, NaLC
 Background of the paper
What?
Why?
- Issue On the rise.
-Lack of Literature dealing with
the following issue, written
from a Nepalese perspective.
- Sexual offences are indeed
different from other type of
delinquent behavior.
 OBJECTIVES OF THE PAPER
To study about the International
approach to Juvenile delinquency with
special reference to the sexual
offending amongst delinquent behavior.
To analyze Nepalese legal provisions
and responses regarding the same.
To prescribe the best possible solutions
in order to address and effectively
tackle this issue.
 Contd.
Incidentally, this paper has also
analyzed a few theories as to WHY
Juveniles commit these crimes.
Because prescribing a solution to a
problem without knowing the cause
is not effective.
 LIMITATIONs
The study shall mainly focus upon International approaches
to treatment of convicted juvenile sex offenders. So, the
issues of pre-trial treatment or juvenile detainees shall not
be dealt by this paper. This paper shall only deal about
sexual delinquent behavior amongst the juveniles. Thus,
other delinquent behaviors shall not be focused upon.

Besides that, due to time limitations, the comparative

study shall majorly focus between Nepalese provisions with
respect to International standards, ie. internationally
recognized conventions, covenants and relevant important
soft laws. Though relevant international practices shall be
refereed to occasionally, a detailed comparative analysis
between any other legal system with respect to Nepal, has
not been done.
 ORGANIZATION OF THE STUDY
Eight Chapters
The first chapter dealing with general
introduction.
The second chapter being the conceptual
framework, where some key ideas to be
discussed in the paper shall be discussed and
clarified, as well as the key terms defined.
The third chapter shall strive to seek the
causative factors underlying juvenile
delinquency through discussing various
criminological theories of Juvenile delinquency.
 ORGANIZATION..
The fourth chapter shall specifically deal about
the causes and implications of sexual offending
by juveniles,
Whereas the fifth chapter shall discuss as to
how to address this delinquent behaviour.
The sixth chapter shall deal about the Nepalese
responses regarding the same issue.
Seventh and eighth chapters are Analysis &
Conclusion and Suggestion & Recommendations
provided by the researcher repectively.
 Introduction
The terminology Juvenile
Delinquency is composed of two
terms. The first term, is Juvenile
and the second, Delinquency. The
term Juvenile is derived from the
Latin word juvenis, which means
young.
Etymologically, the term
delinquency has been derived from
the Latin word, delinquer which
means to omit
 Sexual Offending: Juveniles

Legal dictionary defines a sex offender as, all

persons convicted of crimes involving sex, including
rape, molestation, sexual harassment and
pornography production or distribution. Sex
offenders have received considerable attention in
recent years from both policymakers and the public.
This is due at least in part to the profound impact that
sex crimes have on victims and the larger community.
While most perpetrators of sex crimes are adults, a
significant percentage of sexual offenders are under
age 18. An OJJDP report claims that Juveniles account
for more than one- third (35.6 percent) of those
known to US police to have committed sex offenses
against minors.
 Analyzing Sexual Deviance
behavior
General Analysis: Theories of
Criminology.

Causes of Sexual Deviance.

Exposure to Aggressive Role
Models
Substance Abuse and Exposure to
Pornography
Developmental Progression
Other Characteristics Common
to Sexually Abusive Youth
High rates of learning disabilities and
academic dysfunction
Presence of other behavioral health
problems, including substance abuse
and conduct disorders
Observed difficulties with impulse
control and judgment
 TACKLING THE PROBLEM.
Although the treatment of sex offenders has been
around for decades, treatment approaches have
changed in recent years. For many years, juvenile
sex offender treatment was largely based on adult
sex offender treatment, as juvenile and adult sex
offenders were thought to be similar.
However, when research emerged indicating the
developmental, motivational, and behavioral
differences between juvenile and adult sex
offenders, therapeutic interventions for juveniles
became more responsive to the diversity of
sexually abusive behaviors and the specific
offending-related factors found among adolescents
and children.
 Contd.
For example, juvenile offenders, both
sexual and general (nonsexual)
offenders, are generally more impulsive
and less aware of the consequences of
their actions than adults.
Therapeutic interventions for juveniles
are designed to take these behavioral
differences into account as well as the
family, peer, and other social correlates
that impact general and sexual
offending for juveniles
 Approaches
One theoretical approach to the treatment of
juvenile sex offenders is to consider sexual
offending a special case of general
offending; that is, applying principles of
general offending to sexual offending.
Another approach is human service
interventions, which tend to have an impact
on general offending behavior and follow the
principles of risk, need, and responsively.
Recently, many treatment interventions
and modalities, and programs have
been developed.
 CONTROVERSIAL AREAS OF
PRACTICE
Phallometric Assessment
Polygraph
Arousal Conditioning and
Psychopharmacologic Therapies ..
 NEPAL
International Instruments
UDHR
ICCPR (Art. 10)
CRC : Articles 19, 34 and 37.
National Legal Framework
Childrens Act 2048
 Childrens Act 2048

This act has provisioned establishment

of Juvenile Court, special correctional
facility for Juveniles as well as special
rehabilitation programs and services. It
prescribes criminal liability of
Delinquents on the basis of their age,
as follows
Age of Complete Innocence.
Age of Quasi Liability:
Age of Complete Responsibility:
 Muluki Ain, 2020 (On Rape)
Rape: Definition
Only male is capable of raping a woman.
Punishment as per the age of a victim.
Lower the age, higher the punishment.
Sodomy with minor is punishable by
additional one year.
Punishment to Instigator.
Punishment for attempt.
Additional punishment for Gang rape,
raping a disabled/ pregnant woman.
Additional punishment in cases of incest.
 Shortcomings
Presupposes that only a man can
rape, and only a woman can be raped.
Provides complete protection to
Female perpetrators, if any.
Minors from 10-14 years of age, no
matter the crime will face a sentence
of six months at maximum for
committing offences listed in this
chapter.
WHAT IF CONSENSUAL SEX BETWEEN
TWO MINORS OCCURS ?
 Judicial RESPONSES
No specific precedents found.
However, there have been plenty
related to Juvenile Justice,
talking about Judiciarys
willingness to reform and
rehabilitate the minors.
 REALITY CHECK
Child Reform Homes: Lack of
budget/Overcrowding (though it is
willing to take reformative
approaches to help delinquents)
No special programs for sex
offender delinquents.
We maintain no sex offender
registry system, not even in case
of Adult offenders.
 ANALYSIS AND CONCLUSION
Cases of Juvenile Sexual offending has been on the
rise worldwide in recent years. Whereas many
account movies, cinemas, and above all, easy
access to pornography as the major culprit of the
problem, we saw through our research that there is
always more to it.
There are many major social factors that are
believed to cause or affect delinquent behavior
such as social relations, community conditions, and
level of violence, poverty, and racial disparity.
Certain factors like substantial abuse, peer
pressure, history of violence in the family, history of
sexual abuse, environment and hormonal issues also
result in a child becoming a sexual offender.
 Cont.
Thus, the modern science of Criminology does
not agree with the approach of terming
Juvenile Sex offenders as Little Adults or
Rapists and convicting them as adults.
VICTIMS OF CIRCUMSTANCES.
Therapeutic approaches to address these
offenders have been promoted. These
approaches believe in bringing the delinquent
in terms with his/her wrongdoings and thus
reform him/her. Many developed legal systems
go as far as establishing specialized facilities
for their juvenile sexual offenders to provide
them with the special facilities they can, for
the sake of their better rehabilitation.
 Suggestions
Establishment of a separate facility to
treat juvenile sex offenders:
Mental Evaluation of Convicted
delinquents during sentencing:.
Because one sock does not fit all.
Clinical Assessments:
Treatment Plans:
Phallometric and Polygraph
Assessments: (JUDICIOUSLY USED, ONLY
IN CASE OF RE-OFFENDERS OLDER THAN
14)
Supervision Strategies: