Sri Lanka’s State Laws on Sexual Crimes

Sri Lanka’s State Laws on Sexual Crimes

Sri Lanka’s constitution is clear on the protection of all persons against all forms of violence. In article 11 of the country’s laws, the citizens are guaranteed that they will not be subjected to inhuman treatment, harassment, and mistreatment. The Penal Code bears the county’s laws on crimes such as rape, homosexuality, and sexual abuse. It has been amended for more than 30 times since 1950.  

Rape

Under the Penal Code, rape is defined as sexual misconduct with a female gender without consent, or when the consent is obtained by force, threat or intimidation. Sexual intercourse can also be classified as rape when the female is of unsound mind, is under 16 years or has been intoxicated hence cannot make a clear judgement.  Furthermore, when a woman consents to sex because she is convinced to be the man’s wife, the law enforcers classify this as rape (Wood 151).

The defence has a right to kill an assailant in Sri Lanka if assaulted with a clear intention of rape. Unless the judge orders spousal separation, a person cannot be convicted of marital rape. However, PDVA (Prevention of Domestic Violence Act) enacted in 2005 protects victims. It allows them to obtain a court order that bars the perpetrator from having contact with the victim of domestic violence.

Section 364 of the Penal Code recognizes gang rape and custodial rape as harsh forms of sexual crimes.  There are several instances of custodial rape. First is when public officers commit the act against wrongly restrained women (Niaz 176). Secondly, staff or the management of places of custody can commit custodial rape against female inmates. Lastly, custodial rape can be committed in hospitals against pregnant women, the physically/mentally disabled or underage women in the medical facility. 

In the year 1995, the president of Sri Lanka issued a directive to curb sexual violence to people in custody. The presidential directive allows children under the age of 12 and women to be accompanied by a person of their choice for questioning by police.  While instances of sexual violence rose sharply during the war, the state has prosecuted a few perpetrators for engaging in custodial rape (Wood 136).

When one or more persons commit the offence rape, the Penal Code considers it a gang rape, especially when each person in the group participates in the act, or abets the commission of the sexual violence. On the other hand, Article 365 defines grave sex abuses and unnatural offenses such as homosexuality as sexual violence (Peel 2070). It states that persons that have carnal intercourse voluntarily against the natural order with a woman, animal, or man are subject to prosecution. Hoverer, section 365 b clarifies that grave sexual abuse is classifiable as non-consensual acts for sexual gratification and is not categorized as rape (Miller 1054).

Grave sexual abuse perpetrators are subject to 5-20 years in prison and have to compensate the victims financially. The punishment is rigorous where the prisoners must participate in hard labour. In fact, the sentence is longer when the victim or grave sexual crime is a minor. In article 363, tabling of evidence of resistance is not necessary for showing the victim’s non-consent. Indeed, the Penal Code specifies that the consent is impossible when it is obtained when the victim is unlawfully detained, if the perpetrator applies force or intimidation, or when the victim is intoxicated.  By jurisprudence, the rape victims must provide evidence of struggle to show non-consent, especially if they have no demonstrable injuries. The age of consent in Sri Lanka was raised to 16 from 12 in the year 1995 though it is immaterial for statutory rape.

Sentencing

Amendments were introduced in the year 1995 that mandates jail sentences for sexual misconduct, rape, and acts of gross indecency. Decisions such as these are in violation of the country’s constitution and have increased instances of impunity as the high court issue suspended or minimized sentences (Chinkin 326). The Penal Code Article 346 in Sri Lanka allows for mitigation of defences especially for rape and sexual assault that entail sudden and grave provocation. Amendments were added in 1998 to change the forms and elements of punishment for crimes related to sex.

According to Article 12 of the Sri Lankan constitution, an individual’s fundamental right to equality is violated gravely when they are discriminated based on sexual orientation. A sexual harassment such as this is punishable as per section 345 of the amendment act number 22 in the Penal Code. The harassment can include abusive words or actions, criminal force, and assault directed towards victims. Other instances of harassment include unwelcome sexual advances by superiors in workplaces and intimidation or embarrassment through emails and over the internet. Besides, people that encourage or condone sexual harassment are punishable under the Sri Lankan law. Act number 20 on violence in learning institutions outlines that a person who sexually harass student receives 10 years sentence accompanied by hard labour. In addition, the court determines the amount to be compensated.

Grave Sexual Abuse

For persons over the age of 18 (adults), section 365 b (amendment) criminalizes grave sexual abuse as a criminal act.  The offence covers all non-consensual sexual acts not classifiable as rape. They also include oral sex, sadomasochistic sexual conduct with an instrument, and manual stimulation. People caught committing these offenses are imprisoned rigorously for a period not less than 20 years. While the victims can be compensated, the offenders are fined heavily to recover the resources.

Statutory grave sexual abuse involves minors under the age of 16 years. If the victim of sexual crime is under the age of 16, the court assumes that any sexual activity involving them is committed without their consent. In this case, the punishments include hefty fines, hard labour, and imprisonment for a period of 7-20 years.

Incest

Incest, according to Section 364A, occurs when a person participates in a sexual intercourse with a close relative. The crime occurs in several ways, for example when the victim or the offender is direct descendants of the other (a daughter and a father), when the adoptive parent is the offender, between sisters and brothers, and when the male offender is a son of victim’s sister.

Other forms of sexual abuse include exploitation of children through trafficking as covered in section 360C act number 16 (2006 amendment) of the Penal Code. Traffickers commit the criminal act by selling children for sexual purposes, or assist the offender in committing the crime (Berkman 397). Facilitators and promoters of trafficking are criminals as well, which attract a fine and a jail time of more than 25 years.

Works Cited

Berkman, Eric Thomas. "Responses to the International Child Sex Tourism Trade." BC Int'l & Comp. L. Rev. 19 (2006): 397.

Chinkin, Christine. "Rape and Sexual Abuse of Women in International Law."Eur. J. Int'l L. 5 (2014): 326.

Miller, Jody. "Violence and Coercion in Sri Lanka's Commercial Sex Industry Intersections of Gender, Sexuality, Culture, and the Law." Violence Against Women 8.9 (2012): 1044-1073.

Niaz, Unaiza. "Violence against Women in South Asian Countries." Archives of women’s mental health 6.3 (2013): 173-184.

Peel, Michael, et al. "The Sexual Abuse of Men in Detention in Sri Lanka."The Lancet 355.9220 (2011): 2069-2070.

Wood, Elisabeth Jean. "Armed Groups and Sexual Violence: When is Wartime Rape Rare?." Politics & Society 37.1 (2011): 131-161.