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The Test of A “Reasonable Woman”: Battered Woman Syndrome as a Defence from Criminal Liability in the Nepalese Legal System

Posted on June 30, 2021 by NepScholaris Leave a comment

Kiran Paudel and Sankalpa Koirala

Criminal Law
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Law

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The Test of A “Reasonable Woman”: Battered Woman Syndrome as a Defence from Criminal Liability in the Nepalese Legal System

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The Test of A “Reasonable Woman”: Battered Woman Syndrome as a Defence from Criminal Liability in the Nepalese Legal System

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Happy Constitution Day, 2078.

Is the “tampon tax” discriminatory? Does it violate the constitution? Is VAT exemption on such products effective? The article addresses these “woman questions”. A writ has been filed before the Supreme Court for removal of the “tampon tax”. The article proves how the tampon tax can be discriminatory despite the fact that menstruation is only seen in females and not in males. Further, it discusses how there is no legal or economic justification for such discriminatory taxation, thus violating the constitution. The article also addresses how a VAT exemption might not be as effective as intended or even detrimental as it might instead increase the price, and suggests a better alternative. The article has been authored by Mr. Sharad Prasad Koirala, Partner at Learned and Lawyers, Kathmandu.

Neupane Law Associates is hiring short term interns. The interns will later be considered for the position of trainee associate in the firm, upon completion of the intern's examinations. Follow the link in the bio for additional information.

The Supreme Court of Nepal recognised the theory of battered women syndrome (BWS) in the case of GoN v. Radhika Shrestha. The standing order entailed in the decision stated that “on the basis of established principles, changed context, demand of the time and seriousness of BWS, it is necessary to manage legal provisions in order to regulate the matters like testing of BWS, admissibility of examination report and expert's testimony on BWS as an evidence, claims of leniency on punishment made by the defendant in the murder case related to BWS.” The test of self defence is done on a reasonable man standard, which heavily disfavours women who seek such defence, as the perception and response towards a “danger”, differs among the two sexes. This begs a serious “woman question.” Depending on the theories propounded by Dr. Lenore Walker and development in the US Jurisprudence, Kiran Paudel and Sankalpa Koirala highlight the need of a “reasonable woman” test and critically analyse the risk (on battered women) of incorporating express provision on BWS into the criminal law of Nepal, as suggested by the above decision.

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