- Opposes relaxation of statutory rape laws
- Warns it may exacerbate teen/youth pregnancies
- Chair notes that minors ‘cannot give consent to sex in reasonable, ethically sound sense’
The National Child Protection Authority (NCPA), which raised grave concerns regarding the proposed amendments to the Penal Code governing aspects of statutory rape, informed that it intends to question the same in Parliament this week including the Justice Ministry’s motives in seeking to introduce such changes.
In the Justice Ministry’s latest draft Bill, released on 13 March, proposing amendments to Sections 363 and 364 of the Penal Code; the proposed provisions would allow for adult males below 22 years of age who are convicted of statutory rape to be given more lenient sentences (including suspended sentences in lieu of the mandatory minimum sentence or a lesser mandatory minimum sentence), provided that the victimised minor is between 14 to 16 years of age and the victim had consented to sexual penetration.
In a statement made to The Daily Morning yesterday (18), the NCPA Chairperson Udayakumara Amarasinghe noted that the new draft Bill, if passed, would portend extremely negative consequences for the teenage youth of the country. Citing the fact that there are more than 100 reported cases of child and teenage pregnancies per a month even under the already existing law, Amarasinghe stated that the relaxation of such laws would only increase this number. He opined that the draft Bill was not a step forward in the right direction for the protection of minors in the country, stating that it eroded the protection given to minors who could not ‘give consent to sexual activity in a reasonable, ethically sound sense’. He added that as per the mandate vested in the NCPA, according to the NCPA Act of 1998, the Bill would be questioned by a party representing the NCPA in the Parliament, under the Parliamentary Sectoral Oversight Committee regarding Children, on 20 March. He further stated that legal professionals acting in accord with the NCPA are preparing to question the motives behind the draft Bill from the Ministry of Justice.
Mirroring the NCPA’s views, civil society groups had also come together in opposition to this Bill, presenting a petition outlining the legal argument against passing the draft Bill. Citing international Conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, the petition stated that the draft Bill flew in the face of the commitment to protect children’s and females’ rights in the island, arguing that it would be females and children who would suffer the most from the increased leniency regarding the statutory rape of female minors. Stating that the legal age of consent is still 16 years, the petition pointed out that the new provisions, if passed, would, in practice, contradict the laws regarding statutory rape in the island. Many academics, think-tanks, and advocacy groups had signed off on the petition.
The Bill is expected to be read in the Parliament on 20 March.
‘Rape Bill’ Eliminates Concept of Consent’
By Sulochana Ramiah Mohan
The proposed amendment to Sections 363 and 364 of the Penal Code, Chapter 19, issued on 13 February 2024, is facing significant criticism, particularly from the female population of Sri Lanka, who make up over half of the country’s total population. Many argue that the Bill appears to manipulate the perception of women compared to men. On one hand, it eliminates the concept of ‘consent’ in cases of rape, yet it also suggests that if ‘consent’ is provided, the punishment is less severe. In the amendment, the word ‘consent’ has been misinterpreted. An evidence-based and consistent approach is vital in this very significant area of violence against women, child abuse and sexual violence.
A case study of poor judgement with less punishment by the State
In a recent instance, a 16-year-old boy harassed a young woman who had been harassed since she was thirteen. Two weeks ago, the matter was brought before the Aluthkade Magistrate Court in Colombo. The boy harassed her until recently (she turned 19 and he is now 21), and it mostly turned out to be sexual harassment in which he asked for nude pictures of her. He had the right to request pictures of her since he had access to many of the exchanges the 13-year-old girl had with him. He made a threat to show her those conversations on chat to her parents.
When the National Child Protection Authority was contacted about the complaint, which was made when the girl was 14 years old, they were unable to take any action because there was no appropriate protocol for handling a case involving only “harassment” because there was “no solid evidence of sexual harassment” and it had only occurred over the phone or online. The NCPA stated that the local Police should handle the situation.
The NCPA essentially stated that since the phone harassment and threats against her parents were not considered direct threats, direct physical threats or direct sexual abuse as those terms are defined, the Police should handle the matter.
When an official complaint was filed, the Police wanted to know what the NCPA had done. The boy was called, but it took him some time to show up, and only after her parents applied pressure on the Police. It was three weeks later that he appeared. He then expressed regret, and that was that. He continued to bug the girl and for the second time, the complaint was lodged at the Police. He again said sorry. He was protected by his parents, who cried and wailed at the Police station. When the parents wanted him arrested, the Police did not. He was 17 years old and could have been tried at the Juvenile Court. But that did not happen.
The girl left overseas. He managed to get hold of her number through common friends who did not know the case. He began calling her friends overseas nonstop, sending her threatening emails to college, and demanding naked pictures of her, which she complied with out of fear. In addition to pestering her guardian to call the eminent professor in obscene language, he had been phoning numerous of her teachers and professors. He made contact using fake internet calls.
The matter was referred to the Criminal Investigation Department’s Computer Crime Investigation Division (CCID) about three months ago. But first, they claimed they lacked the authority to conduct any raids because there was insufficient proof of sexual abuse. What they wanted was nude pictures, basically. They stated that they can only raid if there are nude pictures, and there must be proof that the pictures were taken by taking a screenshot with the boy in the frame and the girl nude. Once they had those photos which the girl was reluctant to give, the officers raided the man’s house in Kolonnawa. These kinds of pictures were in the girl’s possession, and the CCID had enough proof to raid the boy’s Kolonnawa home and seize two phones and eight SIM cards.
According to the CCID, despite the fact that the problem is growing on a daily basis, they are powerless to solve it. They claimed that the law has little authority in these situations. That was the end of the trauma the girl experienced, along with her college friends and peers who were threatened beyond imagination by this man. But the man was fined Rs 2,500, with a warning of a five-year prison term if he repeated it. That was the end of the matter despite the trauma, suffering and threat of posting naked pictures and the family’s restless life for four years.
The proposed amendment to Section 363 and 364 of the Penal Code, Chapter 19, issued on 13 February 2024, states: Clause 2: This clause amends Section 363 of the Penal Code (Chapter 19) (hereinafter referred to as the “principal enactment”) and the legal effect of the section as amended is to make provisions to extend the application of the provisions of the section to male victims as well as to female victims.
Clause 3: This clause replaces Section 364 of the principal enactment and the legal effect of the amendment is to make provisions to – (a) Enable the Court to impose a suspended sentence in lieu of the mandatory minimum sentence where there was an intimate relationship between the offender under twenty-two years and the victim of or above fourteen years but under 16 years and where the sexual penetration had been with the consent of the victim; and
(b) Enable the Court to impose a lesser mandatory minimum sentence where there was an intimate relationship between the offender under 22 years and the victim of or above fourteen years but less than16 years and where there is no evidence to prove that the sexual penetration had been with the consent of the victim.
Over this unclear and greyish proposed amendment, several civil society groups, including gender activists, scholars and professionals, who have worked extensively on cases related to violence against women and girls from the 1990s to date, voice their strong opposition to the proposed amendments to the law on rape and sexual offences in the Penal Code (as amended extensively in 1995). They have called for the immediate withdrawal of the proposed Bill.
They say the Bill must be withdrawn because the complete misunderstanding and misinterpretation of the principle of “consent” of an underage girl, who is considered by the criminal law of our country, to be lacking in capacity to consent to sex.
Also, the Penal Code as amended in 1995 gives the age of 16 years as the age threshold of the capacity of a minor under 18 years to give consent to sex. The offence of “Statutory Rape” is defined in most legal systems as the criminal offence of having sex with an underage minor girl, who has no capacity to consent because she is BELOW that defined age threshold. This Bill is wrong therefore to propose a policy change that suggests that a girl under that age can “consent” to sex with an ADULT male under the age that the Bill specifies arbitrarily as 22. The Bill is also wrong to LOWER the age of capacity to consent to sex from 16 years to 14 years.
“We do not know how this policy was formulated, and it clearly ignores current realities in Sri Lanka on the high incidence of sexual abuse of minor children including girls, and the abysmal failures in law enforcement. This has in fact created a culture of impunity and even legitimacy for child sexual abuse. The age threshold of 16 years for sexual consent by a minor, was accepted in the 1995 amendments, because it conforms with an age at which a minor under 18 years acquires capacity for other acts such as release from parental custody, capacity to give consent to medical treatment, and now, to be legally employed. This age has been considered relevant in legal and medical scholarship. 16 years as an appropriate age for sex with consent has been recognised globally including in many countries in Africa and Asia.”
Laws on statutory rape of girls (i.e. sex with underage girls) have been introduced in many jurisdictions to protect them from sexual abuse and exploitation. Such abuse has serious impacts on their health, including reproductive rights and health, and general development. There is the risk of school dropouts due to teenage pregnancy and the risk of contracting STDs including HIV.
“We all know that child sexual abuse is rife in this country. It is amazing that this Bill is being presented as an amendment to the Penal Code at this time, when the challenge is to strengthen enforcement of the existing law, and protect children from sexual abuse and exploitation. The manner in which impunity for such abuse is being encouraged by lowering the age of consent of girls to 14 years, and then providing for suspended sentences for male perpetrators under 22, clearly points to a growing practice of ad hoc policy formulation according to agendas. What we need is coherent, consistent law and policy reform that can address and impact usefully and resolve problems relating to violence against women and girls.
“This Bill clearly contradicts the national policy of protecting the human rights of women and girls through the much-publicised proposed Gender Empowerment law and the National Policy on Women. Sri Lanka has obligations under international law, to uphold women’s and children’s rights, and conform to the Women’s Rights Convention (CEDAW) and the Child Rights Convention (CRC). The Government of Sri Lanka will have to report to the monitoring committee of CEDAW and is currently preparing its next report. How will the Government of Sri Lanka explain this extraordinary change of policy and law reform that violates commitments under that Convention and CRC?”
The Bill proposes to amend Section 363, which currently covers rape of women and girls, to include male rape. When the Penal Code was amended in 1995, the offence of rape as a sexual offence perpetrated in a specific manner by a man against a woman or girl child was retained with some modifications. The offence of male rape was included in a gender-neutral offence of “Grave Sexual Abuse” that covered all OTHER acts of sexual violence against men and women, girls and boys.
“We recognise that male rape can be a distinct offence within the present law in the Penal Code. However, the proposed amendment creates ambiguity that negatively impacts on the provisions of the current Section 363 of the Penal Code, which applies strictly to women. In order to maintain the specificity of the law on a crime experienced by women in a manner different to men, we must retain the current Section 363. We demand the withdrawal of this hasty, ad hoc and deplorable Bill, which changes the law and policy on sexual offences.”
The statement also said they demand a transparent and consultative process of policy formulation and law reform, with the participation of diverse and relevant professionals including in medicine and law. Civil society organisations and service providers working in this area must also be consulted.
Attorney-at-Law explains Definition of rape in Sri Lanka
Speaking to Ceylon Today, H.R. Chiranthi Senanayake, Attorney-at-Law and Lecturer in Law at Horizon Campus, Sri Lanka, Lecturer in International Human Rights Law and Public Policy, Development Justice and Development Governance Advocate | Founder of Hype Sri Lanka, explains the definition of rape in Sri Lanka.
The definition of rape as a sex-related offence/crime is defined by the Penal Code No: 2 of 1883 (as amended) which is a colonial ordinance having obsolete sections. When the Penal Code is read under the literal interpretation approach, the two sections which have a direct impact on defining rape are Section 363 defining rape and Section 364 setting out the punishment for rape. According to Section 363, rape is defined as peno-vaginal penetration committed without the consent of the woman under one or more of five circumstances, ranging from marital rape to situations of consent being provided under an unsound mind or intoxication. Yet when this Section is read with other sections pertaining to sex-related offences such as those pertaining to unnatural sexual offences and grave sexual abuse, we see conceptual and systematic issues with the definition of rape itself.
Sex offences can be ‘groping’ and not classified under ‘rape’
The term sex-related crime or offence is a broad category of criminal offences that includes a spectrum of acts ranging from sexual assault to rape resulting in bodily injury. Hence, under international best practices, any crime committed on the person which has a sexual component.
Only penetration done with the penis is considered rape, it says. How should that not be in the sense of groping, anal sex etc.?
A fundamental conceptual and practical problem with regard to the present definition of rape under Section 363 of the Penal Code is its male centricity. The section as it stands identifies rape as an act committed by a ‘man’ against a ‘woman.’ This completely excludes the rape of a man through anal penetration or forced object penetration by a man or a woman. It also excludes the forced object penetration that can be experienced by a woman from another woman. Therefore, legal professionals, advocates and civil society have been campaigning for decades to reform the Penal Code provisions on rape. In light of such advocacy, Penal Code Amendment No. 9 of 2024 (which is colloquially known as the Rape Bill) is a proactive step taken but with attached controversy on whether it is a step in the right direction. Section 5 of the Amendment dealing with a redefining of Rape does have positive reforms. For example, the use of gender-neutral terminology such as ‘person,’ ‘offender’ and ‘victim’ as opposed to binary terms of ‘man’ and ‘woman’ is a step in the right direction. The wording of many of the circumstances has also been made clearer for direct judicial interpretation. An example of this is the proposed change in the language used to criminalise marital rape and thereby clarify the purpose of the section itself.
Having sex without a condom can also be considered rape, if the girl insists?
It must be understood that rape is a heinous crime that involves complex sex and gender-related complexities and sensitive circumstances. So Courts and advocacy spaces have dealt with obvious questions like whether stealthing (falsification of the use of condoms and non-consensual condom removal) amounts to rape and complex questions like what constitutes consent. In terms of whether wearing a condom absolves you from rape charges, Courts across the world have unanimously decided that it does not. There are two main judgements in this regard. One judgement is that where consent is not provided by the victim and they are raped by the offender it is immaterial whether the latter wears a condom. The second judgement is that stealthing amounts to rape.
When dealing with the question of consent, one has to provide a more nuanced analysis. The most controversial proposition of Penal Code Amendment No. 9 of 2024 is on the power granted to the Court for reduced sentencing where it is apparent to the ‘satisfaction of the court’ that the victim between 14 years and 16 years has provided consent. The adoption of the majority age as 18 years and the benchmark of below 16 years for statutory rape in Sri Lanka standardises the fact that those below these ages cannot or has relatively limited capacity to make informed decisions pertaining to consensual sex.
Therefore, an objection raised by civil society to the so-called ‘Rape Bill’ is that there is a misunderstanding and misinterpretation of the principle of “consent” of an underage girl. Undoubtedly, this is problematic because of the complexities surrounding teenage sex such as curiosity, peer pressure and lack of sex education in a country like Sri Lanka. Yet, a counter-argument that can be brought up is that the increase in access to information pertaining to sexual intercourse and increased psycho-emotional intelligence of present adolescents between the ages of 14 years and 16 years in comparison to three decades ago, warrants a case-by-case analysis of what constitutes consent. This would also reduce the number of statutory rape convictions where either both adolescents were making informed consensual decisions pertaining to sex or where statutory rape is wrongly used to convict juvenile offenders out of spite, anger or frustration on the part of the underage (14-16 years) consenting party. However, considering the fact the law ought to cater to the average experience and reality, the age of consent for sex should remain at 16 years.
Push for definition of sex offender is key and to know who is on that list of sex offenders?
Considering anyone who commits a sex-related offence is a sex offender, there is no need to redefine what constitutes an offender of this nature. Where reform is necessary is in terms of the exact definition, the constituent action and the relevant mental element of certain sex-related crimes. An important dimension to discuss here is the maintenance of official lists and databases in terms of sex offenders. The most well-known system for recording sex offenders is the ‘sex offender registry’ of the United States of America. The aims of sex offender registration are two-fold, namely, maintaining a publicly accessible database of convicted sex offenders to ensure the safety of the public and serving as a deterrent for repeat offences.
While they achieved both these purposes in the early years of their adoption, they are now proving to offer little protection while creating a plethora of problems ranging from long-term stigmatisation of offenders who are later proven innocent and the sequestration of sex offenders in low-income neighbourhoods. The public nature of the system also results in a form of double punishment for those who serve their sentence and then are reintroduced to society. Yet, the absolute lack of a registration system does not prove any better and provides little protection from repeat offences, sacrificing the safety of the public. Therefore, Sri Lanka should adopt a sex offender registration process that takes into account the complexities and nuances of this issue. A possible yet imperfect example of such a solution is only informing the presence of a convicted paedophile who has served their time, to families with children in the neighbourhood.
Do you think the Penal Code should be amended?
The Penal Code, inclusive of the provisions of sex-related offences, needs to be amended to cater to the contemporary needs of society and evolutions in the sociocultural behaviour of the population of Sri Lanka. Penal Code Amendment No. 9 of 2024 is a needed step that can be strengthened through the incorporation of valid inputs by civil society, advocates and legal professionals. This hints at the need for making the overall legal amendment process more inclusive of legal development stakeholders.