The Colombo Chief Magistrate has dismissed a case filed against three gay men for homosexuality. The dismissal of Case No. 34131/3/20, was based on a letter by the Attorney General informing the Police that the Attorney General will not pursue the case.
The men, all who identify as gay, were not participating in any sexual activity at the time of the raid but were merely having drinks and eating in the room. The men allege that the police had used an unopened packet of condoms in the hotel bathroom as grounds to arrest them.
In June last year, Narahenpita Police raided a private hotel room in Colombo and arrested three men for homosexuality. The men were beaten with batons and wires until they bled by the police and subject to forced anal examinations by Judicial Medical Officers (JMOs).
The men, all who identify as gay, were not participating in any sexual activity at the time of the raid but were merely having drinks and eating in the room. The men allege that the police had used an unopened packet of condoms in the hotel bathroom as grounds to arrest them. It is not unusual for hotels to provide complimentary condoms in hotel sanitary kits. The police then proceeded to prosecute the men under section 365A of the Penal Code.
Section 365A criminalises “gross indecency” between any persons and does not specifically mention or criminalise homosexuality. However, police enforce these provisions almost exclusively against LGBT people, leading to a practical criminalisation of LGBT people in Sri Lanka.
Following an investigation last year, the Daily Mirror exposed how the Sri Lanka police were using sections 365 and 365A of the Penal Code to routinely arrest and torture LGBT people for consensual relationships. Evidence also shows that while police harass and arrest LGBT people for consensual relationships, there is considerable police inaction on sexual crimes against women by men.
Investigation also produced evidence of forced anal and vaginal examinations of LGBT people by JMOs on the instructions of the police. One of the victims of the police prosecution, a Swedish national, has filed a complaint with the Human Rights Commission of Sri Lanka. In a petition detailing his harrowing experience at the hands of Sri Lanka Police, the victim states that he was “subjected to torture, cruel and inhumane and degrading treatment” and that police officers tied him“with wires, and forced him to undergo anal examinations in attempt to prove homosexuality.”
Attorney General has consistently repeated since 2014 that discrimination against LGBT people is unconstitutional and violated the right to equality and freedom from discrimination under Article 12 of the Constitution. Despite these repeated assertions by the AG, the police have continued to harass arrest and prosecute LGBT people.
The request for dismissal by the AG is the first such known instance of dismissal of a case against LGBT people.
Recently, several LGBT rights activists, led by Equal Ground, filed a writ petition in the Court of Appeal against Sri Lanka Police for conducting homophobic training sessions. This is the first such case in the Senior Courts of Sri Lanka requesting to enforce the rights of LGBT people.
In the last year, both the President and Justice Minister of Sri Lanka have publicly committed to ending all forms of discrimination against LGBT people. Justice Minister Ali Sabry said that he “strongly believe that no person should be discriminated against or made to suffer any form of abuse, indignity or injustice on the basis of their gender, sexual preference or identity”.