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Sri Lanka’s legal definition of Rape is too narrow – Here’s a way to fix it

The central elements of Rape cannot be captured in a mechanical description of objects and body parts, according to the International Criminal Tribunal for Rwanda (ICTR). Accordingly, rape is defined as a “physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” However interestingly, according to the Penal Code (PC) of Sri Lanka (SL), a man commits the crime of rape, only by having sexual intercourse with a woman without her consent, or against her will, where vaginal penetration by a natural penis is an essentiality.2 Comparing the two, given the extensive definition employed by International law, it is apparent that the definition of rape in SL is quite narrow in scope. The past few years have witnessed its dangerous consequences which renders improving the Laws of Rape not just a legal, but also a social necessity. Improvement, in this regard requires tri-parte changes in substantive, procedural and structural aspects in order to build an efficient justice system. Firstly, the fundamental problem of gender specificity, the narrowly defined act of rape and the lacuna in marital rape within the legal definition of rape requires substantive improvements. Secondly, the pragmatic aspects of law enforcement should be reformed. Finally a socio-humanistic approach to the Laws of Rape should be brought forth in order to facilitate structural reforms.

The legal definition of rape in Sri Lanka is widely criticized for its gender specificity, overemphasis on “consent” and the narrow interpretation of rape excluding marital rape. The PC explicitly stipulates that only a man can rape a woman, and only a woman can be raped.3  “A man” is an individual with a natural penis and “a woman” is an individual with a natural vagina. Quite alarmingly this implies that males, individuals with lesbian, gay, bisexual, and transgendered sexual orientations cannot be raped, unless there is evidence of vaginal penetration. On one hand, this makes it clear that law of rape in Sri Lanka is limited to heterosexual relationships. And on the other, it’s also apparent that forced anal intercourse or oral sex does not account for rape. However, conversely in the Elements of Crimes for the International Criminal Court (ICC), rape is defined as the “invasion the body of a person by conducts resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.”4 Here the term “invasion” used to define rape is intended to be broad enough to be gender-neutral and account for any invasion on the human body using sexual organs or any object by the perpetrator. Thus, in terms of streamlining the law of rape in SL, it is essential to substantively develop the definition of rape parallel to that of the ICC. Far from being ambiguously gender specific, the bedrock of the rape law should defend a human being. Praiseworthily, the 1995 amendment to the penal code has codified grave sexual offences under section 365B which is gender neutral and account for a vast array of sexual abuse using sexual organs or any other object. However, the Laws of Rape remain obsolete.

Similarly, the ambiguous overemphasis on consent should be discouraged. Instead it is far more important to allow circumstantial interpretation, such as in Inoka Gallage V K. Addaraarachchi5 where consent was held as defense to a rape charge, and consent for oral sex was debated whether to be implied consent for penetration.

Moreover, the lacuna found in the marital rape law of Sri Lanka, encourages domestic sexual violence, as the Penal Code only criminalizes marital rape if the wife is judicially separated from her husband.6 According to the UN led multi-country Survey study, 15 per cent of men in Sri Lanka admitted to have committed rape, with 12.7 per cent having physically forced the wife to have sex against her will. 7 Thus, un-arguably the Laws of Rape should be improved substantially in the aforementioned aspects to ensure inclusiveness, conduciveness and responsiveness to prevailing legal and social conditions. Enforcement is another procedural aspect which ensures the proper adjudication of existing laws.

From restraining suspended sentences, to expediting the process of hearing rape/sexual abuse cases, the pragmatic issues of law enforcement are in a dire need of improvement. Alarmingly, the aforementioned UN survey notes that, 97 per cent of men convicted for rape have not faced any legal consequences in Sri Lanka. Since the minimum sentence for a rape crime varies, circumstantially, from 7 to 14 years under the 1995 Amendment to the Penal Code, allowing a suspended sentence, seriousness of a crime can be lessened. Consequently this can also discourage victims seeking justice due to their lack of faith and trust in finding redress in the law. Moreover, the numbers of convictions remain very low due to delays in law enforcement. Furthermore, the existing backlog in court proceedings can re-victimize women discouraging them in seeking justice. Setting an example, India implemented a fast track process of ligation after the gang rape of a medical student in 2013 which should be idealized by the Sri Lankan legal system. Additionally, the Laws of Rape also require structural improvements within society, apart from the aforesaid procedural facets.

In this light, a socio-humanistic approach is vital in improving the Justice system. Investment on a more nuanced education of sexual behavior and sexual offences; enabling the civil society and the media to play a pivotal role in raising a voice to expedite legal processes against perpetrators in Sri Lanka are essential in this regard. Like in India, a fast track litigation process should be prompted by local/international activists and media personal in the local scene. It goes without saying that in Sri Lanka it is the women who face graver injustice due to the obsolete rape laws that prevail. The lack of female participation in enacting legislation should be considered a potential drawback for the lack of progression in the archaic Sri Lankan Rape law. Thus, it is vital to bring forth a voice representing the majority of victims in the country which is the most practical solution in reforming the law, so that it emerges conducive to the social setting.

Since the law and the society are mutually constitutive elements, quintessentially the laws should go hand-in-hand with timely social changes. In Australia, statutory extensions and modifications to the crime of rape were legislated in order to make penetrative sexual offence, gender neutral and inclusive; so that penetration of the genitalia by a penis, object, and part of a body or mouth would be considered a rape.8 As the Sunday Leader notes, perpetrators are often politically influential or someone in or known to the family.9 Thus, it is important to create a framework to protect rape victims in terms of recovering from the psychological trauma and avoiding further stigmatization or discrimination having faced rape or sexual assault. Formulating legislative and public support to legalize abortions of rape victims furbish an example in this regard. Social institutions ranging from family, school to religious institutions and administrative bodies should play a symbolic, educative and practical role in ensuring the legal awareness on sexual violence.

Thus in sum, it is apparent that improving the Laws of Rape in Sri Lanka requires substantive, procedural as well as structural reforms in terms of the definition and interpretation of rape; enforcement of prevalent laws and awareness of rape as a crime against humanity. In line with the substantive reforms it is vital to extend the premise defining the act of rape to ensure gender neutrality and include the criminalization of marital rape and forced sexual conduct without the use of sexual organs. The procedural reforms require the systematic enforcement of prevailing rules alongside a strong institutional framework of litigation. Finally, the socio-humanistic perspective highlights the importance of social awareness of sexual crimes and the potential influence that the society can exert in voicing out sexual violence in order to supplement the debate on reforming the Laws of Rape. It also highlighted the importance of female law makers as a representative body in voicing out agonies of the victims and contributing to the progression of the prevailing laws of rape.

Notes:-

[1] The Prosecutor V Jean-Paul Akayesu Case No ICTR-96-4-T (International Criminal Tribunal for Rwanda)

2 The Penal Code Amendments Act (Replacement of section 363 of the principal enactment)1995, s 363

3 Ibid, ss 363 (a)(b),(c),(d),(e)

4 Elements of crimes, ICC (2011)

5 2012 1 SLR 307

6 s.363 (a)

7 UN Multi-country Study on Men and Violence in Asia and the Pacific (September 2013).

8 Thomson Reuters, The Laws of Australia, vol 10, Criminal Offences, 10.3, [140].

9 Waruni Karunarathne “Legal Gaps Prevent Action Against RapeThe Sunday Leader (Colombo, 01 Dec 2013).

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