Nepal – exploited by older married man – young unmarried mother accused of infanticide

Introduction

Although to commit adultery with an unmarried woman is a crime in Nepal, philanderers seeking promiscuous relationships still seduce women who are considered weak and who are usually violated in such cases. The victims rarely report these situations because of the social stigma involved. In most cases, the perpetrators who have a social standing threaten their female victims who following seduction are afraid to resist or report them and hence are often victimised repeatedly. She can seek legal help or lodge a complaint in principle but they lack confidence in the criminal justice system. There is also a fear of retaliation by the perpetrator. Nepal is a patriarchal society. Promiscuous relationships on the part of the woman is a taboo and it is considered a sin if she has sexual intercourse before marriage. She would be branded of loose character and risks being an outcast by family and society. The woman, already a victim, is thus re-victimized. Only a small percentage of females seek justice and they will need to be mentally strong and/or have family support. We report a case where an unmarried pregnant woman gave birth alone and was later charged with infanticide. The autopsy with limited resources could not establish whether the infant was born dead or alive.

Case report

The dead body of a newborn was found behind a cattle shed in a rural part of Nepal in the early hours of the morning. There was an outcry and locals gathered and the police arrived and sent the baby's body for autopsy. This described a male baby measuring 49 cm in length and weighing 2.7 kg. The body was smeared with blood and soil. Some dried leaves had adhered to the body. Black ants were crawling all over the body which created post-mortem artefacts as abrasions at multiple places. The fingers of both the hands and toes of its left foot were discoloured blue. Grazed abrasion was present on the back. Heaping of soft tissue could not be noted under magnifying glass; however, the pattern of the grazed abrasion was suggestive of baby being dragged from both caudal and cephalic ends. Umbilical cord measuring 21.5 cm was still attached to the body, the free end of which was soiled and cut with an irregular margin. Following examination of the oral and nasal cavities, the fraenulum was seen to be intact and no injuries noted. External examination of the neck was not significant. No gross congenital anomaly was noted. On opening the abdomen, the highest point of diaphragm could be noted at fifth rib space. The lungs were light brown in colour with round margins. When the lungs were immersed in water for the hydrostatic test they floated. The other findings were insignificant.

As per the history given by police, the dead foetus was found behind a cow shed at around 5 am in the morning. During the police investigation, a 19-year-old unmarried girl was suspected of delivery and of discarding the infant. She was taken into custody for interrogation, during which time she admitted giving birth to the baby. She said she had suffered severe abdominal pain and cramps at around midnight. She somehow managed to climb down from her room and get behind the cowshed bearing the pain. After an hour of struggle, she felt the head of the baby at her vaginal orifice. She pulled it out with both her hands and completely delivered the baby who did not cry so she presumed it was stillborn. She detached the umbilical cord from the baby and tried to conceal the other portion of the cord which was hanging outside her vagina by inserting it inside the vaginal orifice. After trying for some time she decided to pull it back and it came out with the placenta. It was late at night and she was exhausted so she left the body behind the cowshed intending to return at an early hour to dispose of the body in the jungle, so that no one would know. She was fast asleep and failed to wake up early which led to discovery of the foetus.

It was later discovered that a 43-year-old married man from the neighbouring house had fathered the child. The illiterate girl was an orphan, whose mother had died when she was nine. Her father had remarried but soon after her father’s second marriage, she became a victim of her stepmother’s physical and verbal abuse. She was shifted to a room above the cow shed. She would frequently visit the neighbouring man’s house where his wife cared and consoled her. One day when his wife was not home the man had illicit sexual intercourse with her in his own house. After this, the man used to get into the girl’s room above the cow shed, which was an isolated place. The girl repeatedly told the man of her ongoing pregnancy when she was not having regular menstrual periods. The man had promised he would take care of her and make her his second wife.

The girl was accused of infanticide and taken into custody. A case has been filed against her and she is awaiting trial. She was taken to the hospital the next day where her perineal tear was repaired.

Discussion

The autopsy examination reveals that neonate was at term without any congenital abnormality or significant disease. Preliminary report suggests abandonment of the child played a role in its death as act of omission. A newborn is a vulnerable being. Absence of clothes, cold environment and lack of milk can immediately threaten its existence. The physical examination of the alleged mother showed signs of recent delivery and was in compos mentis. However, the alleged father was not brought for physical examination and did not undergo any test to establish paternity. There are instances where for some reasons the Supreme Court has rejected the DNA report as an evidence for paternity in Nepal. ¹

Neonaticide is a form of homicide where mothers are usually focused on as agents. ² The newborn is either killed or discarded which then results in its death, as it is an unwelcome guest. Neonaticide usually involves an act of commission in the part of mother who actively takes away the life of newborn, whereas, in cases of discarded infants, it is usually a passive act, the act of omission, like not feeding or taking care of the infant. The discarded child will eventually die of hunger, cold, dehydration or predation. However, there is absence of a fine line to distinguish between neonaticide and a discarded infant. As per the general code of Nepal (Muluki Ain):

A person who abandons a male or female baby born alive shall be liable to the punishment of imprisonment for a term of four years. In cases where such a baby is found dead, the person who has so abandoned shall be treated as a murderer. ³

The alleged mother is a young woman; a vulnerable and uncared for member of the family as she was left in an unguarded place. She is looking for a mother figure for love and care. She is in a relationship with a married man who promises to look after and marrying her. The fact that she was not married, was aware of the pregnancy, delivery, illicit relationship hint towards the motive behind the offence. She might be labelled as an offender or perpetrator but the causes are far deeper.

The circumstances of what appears as a crime mask a vicious cycle of victimization and re-victimization. It has been observed that alleged mothers of neonaticide share similar characteristics like being young and unmarried, of poor socioeconomic strata, who had an unplanned pregnancy and suffered child abuse.^2,4,5 Teenage pregnancy is associated with lower education, family life stress, increased risk of abuse and neglect and the absence of a father. ⁶ In the present case, although the girl was still technically living with the family and sharing the same kitchen, she was given a separate, isolated room above the cowshed outside the house. Had she been living under the same roof with her father and stepmother, it would have been a protective factor against sexual abuse. The regular abuse turned into a physical relationship with threats and false promises.

There is legal provision for medical termination of pregnancy (MTP) as per Muluki Ain. It states that

It shall not be deemed to be the offence of abortion, in the following circumstance: a) If the abortion of a foetus of up to Twelve weeks is carried out with the consent of the pregnant woman, b) If the abortion of a foetus of up to Eighteen weeks caused by rape or incest is carried out with the consent of the pregnant woman and c) If the abortion is carried out with the consent of the pregnant woman and on the advice of an expert pursuant to the prevailing law that if abortion is not carried out, the life of such a woman may be in danger or the physical or mental health may be deteriorated or a disabled child may be born. ³

Discussing sex before or after marriage is still taboo (although sex education has been incorporated into the school curriculum), let alone sexual offences. Societal pressure and stigma attached to rape may also play a part in delayed reporting of the alleged offence. The victims are stigmatized and blamed; hence, as a consequence they are afraid to seek justice. For some who come forward for legal support, there are serious and often insurmountable obstacles. The first barrier is the short time allowed for reporting the offence. Legally, for an offence of rape, the complaint should be lodged within 35 days of the act. ³ This stringent time frame is the reason for the delay in reporting the alleged offence. ⁷ Legal permission is mandatory if MTP is to be done on humanitarian grounds. It cannot be denied that, if the court takes long enough to decide to give such permission for termination of pregnancy, the foetus is already born.

The Nepalese legal system needs urgent reform. This is just an example of one among many cases which highlight the serious need for logical interpretation in cases of alleged infanticide. There should be outreach educational programmes where the people are made aware of the remedies that are available to women in cases of sexual assaults. Police should be trained to protect the rights of the victim, and also should be prompted to register cases of sexual assault and thoroughly investigate them. There should be provision of legal and medical assistance from the state in all cases of sexual assault. Without examining the real cause, no victim should be avenged and no offender should be acquitted.