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Sunday, April 21, 2024

Examining Sri Lanka’s New ‘Romeo and Juliet Law’ – Prof. M.W. Amarasiri de Silva

According to an article published in The Island newspaper on March 25, 2024, Dr. Sudarshini Fernandopulle, MP, has raised concerns about the lack of consultation with the Women Parliamentarians’ Caucus before the Justice Ministry gazetted a bill on February 9, 2024. This bill aimed to amend Chapter 19 of the Penal Code, proposing a reduction in the age of consent for sexual intercourse to 14 years. Dr. Fernandopulle emphasised that this provision directly relates to the human rights of children, with a specific focus on girls. She highlighted the profound impact such legislation could have on their lives, including implications for health and individual identity.

Therefore, she stressed the importance of a cautious and sensitive approach to safeguard children’s rights and well-being. In light of this discussion, I wish to present the findings of a study I conducted for UNICEF in 2009, demonstrating how increasing the age of marriage to 16 years has significantly reduced instances of underage sexual activities such as rape and non-consensual sex. This research underscores the critical need for comprehensive measures to protect children, particularly in matters as crucial as the age of consent. The General Marriage Ordinance of 1907 and the Kandyan Marriage and Divorce Act of 1952 permitted child marriages.

Notably, most marriages in Sri Lanka were registered, including those of children before 1995. In 1995, significant amendments were made to both these laws, effectively removing the legal sanction for marriages under 18. The legal age of marriage was raised to 18 years. Notably, the law was interpreted to disallow parental consent for marriages of children under 18 years, establishing an absolute prohibition. These legal changes also impacted the Penal Code, raising the age of sexual consent from 12 to 16 years. This adjustment in the Penal Code has direct implications for the law on rape.

The concept of “statutory rape” in criminal law, which pertains to sexual intercourse with a minor below the age of 16, became legally recognized. It’s worth noting that these legal reforms did not affect the Muslim community, as their marriage system operates under the jurisdiction of Muslim law. While the Muslim Law Research Committee proposed raising the age of marriage within the Muslim community, this recommendation has yet to be implemented.

However, within the Muslim community, the existing criminal law prohibits sexual intercourse with a child wife under 12 years of age. This provision is interpreted as a form of statutory marital rape, illustrating the complexities within the legal framework concerning marriage and sexual consent across different communities in Sri Lanka. Early Child Marriages Early (child) marriages, defined as those occurring before the age of 18, and instances of statutory rape involving individuals under 16 years of age, disproportionately affect young girls. When a case of child marriage is reported, the male partner often faces legal consequences. In many instances, he is sentenced to rigorous imprisonment, ranging from a minimum of 10 years to a maximum of 20 years. Court decisions frequently direct the girls involved in such marriages to correctional institutes like the Girl’s Home in Ranmuthugala. They undergo a reform and rehabilitation program typically lasting three years or less. After completing the program, they are returned home under the supervision of the Probation Officer from the respective Probation Division. This process aims to support and guide the girls as they reintegrate into society after their challenging experiences.

In cases of statutory rape, the girl in question undergoes examination by the respective Judicial Medical Officer (JMO), who then initiates a correctional program tailored to the girl’s needs. Additionally, the JMO provides crucial evidence for legal action against the perpetrators. According to the Penal Code, any instance of vaginal intercourse with a girl under 16 years old, regardless of whether it occurred within the context of a consensual marriage, romantic relationship, or otherwise, constitutes rape. Perpetrators are thereby subject to prosecution and may face rigorous imprisonment, with a minimum sentence of ten years and a maximum of 20 years.

A 2009 study revealed a significant decrease in registered marriages involving individuals under 18 years old in Sri Lanka between 1994 and 2003. This decline has been particularly pronounced following the amendment of marriage laws in 1995, which raised the legal age of marriage to 18 years. The data indicates a substantial drop from approximately 6,000 male and female individuals marrying before turning 18 in 1996 to only around 1,000 in 2003. This decline can be attributed to the legislative changes implemented in 1995 and is evident across all ethnic groups except the Muslim community.

Concerning Trend The evidence presented in this report indicates a concerning upward trend in the incidence of early marriages and statutory rape. There are indications that these practices are on the rise, particularly in less developed districts and Divisional Secretariat divisions, areas affected by conflict, specific ethnic communities, the estate sector, and impoverished regions. Data from various agencies, including safe houses and Certified Schools for female children, suggests that the percentage of girls entering these institutions who have experienced statutory rape and consensual marriages is increasing. It’s crucial for lawmakers to consider the full spectrum of implications when drafting new legislation, especially when it concerns sensitive issues like the age of consent. While reducing court cases of underage sex and rape may be an intended outcome of such a law, it’s equally important to weigh the potential social, psychological, and physiological consequences.

Here are some key considerations that lawmakers should take into account:

1. Social Implications: Lowering the age of consent may shift societal norms and attitudes toward sexual behaviour among adolescents. This could lead to changes in how young people perceive relationships, intimacy, and consent, potentially influencing their behaviour in ways that may not align with their emotional or cognitive maturity.

2. Psychological Implications: Adolescents may face increased pressure to engage in sexual activities before they are emotionally or mentally ready, leading to negative psychological consequences such as trauma, regret, or confusion. Additionally, lowering the age of consent may blur boundaries between age groups, potentially exposing younger individuals to situations they are ill-prepared to handle.

3. Physiological Implications: Adolescents undergo significant physical and hormonal changes during puberty, but these changes do not necessarily correspond to the development of emotional or cognitive maturity. Lowering the age of consent without considering these differences could increase the risk of exploitation or harm to individuals who are not fully equipped to make informed decisions about their sexual health.

4. Legal Safeguards: While reducing court cases related to underage sex and rape is a valid concern, it’s important to ensure that legal safeguards are in place to protect individuals from coercion, manipulation, or abuse. This includes robust education on consent, comprehensive sex education programs, and adequate support systems for victims of sexual violence.

UN Convention Overall, any proposed changes to the age of consent should be accompanied by thorough research, consultation with experts in fields such as psychology, sociology, and public health, and a comprehensive understanding of the potential consequences for individuals and society as a whole. Balancing legal objectives with ethical considerations is essential in crafting legislation that promotes the well-being and safety of all individuals, particularly vulnerable populations such as adolescents.

The United Nations Convention on the Rights of the Child defines a child as any individual below the age of 18 years. Consequently, any form of sexual activity involving those under 18 years old can logically be categorized as child abuse or rape. The legal age of consent for engaging in sexual intercourse varies from one country to another. In the United States, it ranges from 16 to 18 years of age, with California setting it at 18 years.

In India, the age of consent is established at 18 years according to the Protection of Children from Sexual Offences (POCSO) Act. Before the enactment of the POCSO Act in 2012, there was no distinct age of consent defined for males, and it was determined by Section 375 of the Indian Penal Code, which outlines the definition of “rape.” The Law Commission of India advised against altering the age of consent from 18 years, noting that this age has fluctuated significantly in Indian legal history. Initially set at ten years in 1860, it was raised to 16 years for females until 2012.

The decision to increase the age of consent for females in India was informed by tragic events such as the Phulmoni case. In 1860, the age of consent for females was a mere ten years. However, following public outrage sparked by the Phulmoni case in 1891, where an 11-year-old girl died due to injuries sustained during forced sexual intercourse by her husband, the age of consent for women was raised to 12 years under Section 375. Despite the severity of the crime, the husband was convicted only of causing grievous hurt by a rash or negligent act endangering life, and he received a sentence of one year’s rigorous imprisonment. Thereafter, the age of consent was raised to 14 years in 1925 and to 16 years in 1940.

Enactment of POCSO Before the enactment of the Protection of Children from Sexual Offences (POCSO) Act in 2012, the age of consent for females in India stood at 16 years, while there was no specific age of consent defined for males. Over time, amendments to the marital rape exception outlined in Section 375 of the law have occurred. This exception has evolved from setting the age at ten years in 1860 to 15 years by 2012.

Sri Lanka is considering lowering the age of consent for sexual intercourse to 14 years. This proposed statutory change raises concerns about potential significant negative consequences. While there has been some debate on the matter, it is widely acknowledged that establishing a minimum age limit for sexual consent is crucial.

It is essential to recognize that children under the age of 14 lack both the cognitive development and emotional maturity necessary to make informed decisions about their sexual behaviour. Lowering the legal age of sexual consent would result in the decriminalisation of a significant number of underage individuals engaging in sexual intercourse. The arguments against such a legal amendment are summarized and demonstrated to lack validity.

This proposal is not merely contrary to popular opinion but is widely viewed as absurd. In 2013, when Professor John Ashton, then President of the Faculty of Public Health, Royal Colleges of Physicians, Liverpool, England, suggested reducing the age of consent from 16 years to 15 or 14 years, the proposal was promptly rejected by representatives from both the government and the opposition. Even Prime Minister David Cameron referred to the suggestion as “offensive.”

There are numerous compelling arguments against such a change. This proposal could have far-reaching implications for other areas where the rights of young people are unfairly restricted. Across all jurisdictions in the UK, the existing laws dictate that the age of consent for any form of sexual activity is 16 years for both males and females, regardless of their sexual orientation or the gender of their partner(s). In the United States, engaging in sexual activity with a person under the age of 16 is considered an offense.

However, Home Office guidance in the USA clarifies that there is no intention to prosecute teenagers under 16 if both parties consent and are of similar ages. Additionally, it is unlawful for an individual aged 18 or older to engage in sexual activity with a person under 18 if the older person holds a position of trust, such as a teacher or social worker, as such conduct constitutes an abuse of trust.

There is no evidence to suggest that the legal minimum age of sexual consent in a country correlates with the sexual behavior of young people. A change in the law is often argued to potentially lead to an increase in younger children engaging in inappropriate sexual activity. However, there is a notable lack of evidence supporting this claim.

Much of the available evidence suggests that the current legal framework has minimal impact on the sexual behavior of young individuals. For instance, data collected between 2010 and 2012 indicates that 31% of British males and 29% of British females had experienced full sexual intercourse before reaching the age of 16. Comparatively, fifty years earlier, only 15% of males and 4% of females reported engaging in sexual intercourse before this age. Remarkably, there had been no alteration in the law concerning heterosexual intercourse during this time period.

Furthermore, a study examining the reasons for sexual abstinence among American school students found that the law was not commonly cited as a factor influencing their decision to abstain from sexual activity. Young people aged 14 years typically lack the cognitive maturity necessary to assess the risks associated with engaging in sexual activity.

There is substantial evidence suggesting that 14-year-olds does not possess the cognitive capacity to evaluate risks and benefits, comparable to individuals aged 21. Furthermore, concerns regarding emotional maturity are often raised, supported by neuroscientific findings indicating significant changes in the adolescent brain throughout the teenage years and beyond.

Research highlights the differential development of subcortical limbic systems relative to top-down control systems during adolescence, suggesting that teenagers may not be physiologically equipped to make decisions regarding risk-taking. Despite these findings, relying solely on indirect evidence may be imprudent, especially when more directly relevant studies indicate that the inexperience of youth rather than biological limitations contributes to their vulnerability in risky situations.

The prevalence of sexually transmitted infections and teenage pregnancies among 15–17-year-olds remains substantial. Additionally, many young people, particularly girls, report distressing sexual experiences, with a significant number regretting their first sexual encounter. Most important is to facilitate the provision of appropriate sex education to children and adolescents, enabling them to make informed decisions.

Furthermore, it would ease the delivery of sexual health services to this age group, alleviating concerns about inadvertently supporting illegal activity. It will not escape the notice of the discerning reader that the principles and evidence presented here extend beyond the realm of sexual consent to various other areas where the legal standing of minors is debatable. Sri Lanka needs research into adolescent sexuality before setting up age of consent for sexual inter course.

We do not know what percentage of children under 14 and 16 years of age are involved in sexual activity. What percentage of teenagers get pregnant, and subject to rape and sexual misconduct. A study conducted on early marriage in the Batticaloa District shows that the amendments to the marriage law in 1995 that increased the age of marriage to 18 years has actually reduced the incidence of registered marriages in all categories of persons, except the Muslims who were not covered under the new law. It has actually reduced the incidence of teenage pregnancies and rapes.

Due to lack of data, which is a result of poor data collection procedures and coordination among service providers in Sri Lanka it is hard to comment on the prevalence or patterns of early marriages, statutory rape or teenage sexual activity. The 2009 study based on data available with safe houses and certified schools finds that statutory rape is increasing in the country, particularly in the rural sectors and less developed districts, despite the increase of age of consent to 16 years in 1995 amendments to the law.

There is a significant shortage of data regarding the prevalence and patterns of early marriages and statutory rape in Sri Lanka. Specifically, there is a lack of information concerning the demographics involved, such as ethnicity, age, geographical distribution, and socioeconomic status of families. Furthermore, there is a notable absence of research on the psychological and health impacts, as well as the effects on education and human rights, associated with early marriage and rape.

Moreover, there is a notable absence of studies or data shedding light on the factors contributing to the high rates of early marriages and rape in communities experiencing significant stress, residing in impoverished areas, or belonging to specific ethnic enclaves. At the national level, marriage data are not categorized to distinguish early marriages involving individuals under 18. Despite the prevalence of issues such as teenage pregnancies, suicides among young individuals, and early onset of menstruation in these populations, there has been insufficient investigation into the interconnections between these issues in the context of Sri Lanka.

In summary, the complexities of setting the age of sexual consent highlight larger questions regarding the rights and obligations of minors within society. Through a commitment to evidence-based strategies and an understanding of adolescent development, policymakers can work towards establishing a legal structure that prioritizes the well-being and rights of young people.

It’s important to emphasize that decisions regarding the age of consent should not be solely influenced by the frequency of court cases involving teenage sexual behavior, nor should they be swayed by political expediency. Any alterations to this law should be grounded in careful consideration of its societal implications and the protection of vulnerable individuals, rather than serving as a tool for political maneuvering.

The Island

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