4th January 2024
Yakalla, Ibbagamuwa
At the end of 2023 Dr. Palitha Bandara Subasinghe of the Kandy National Hospital claimed that over 5000 girls have been raped with their consent between 2018 and 2021.
“6307 complaints on rape of girls under 16 years of age had been received by police stations all over the country from 2018 to 2021 and 5055 of them had been raped with their consent.” Daily Mirror, 20th December 2023
This news report in the daily mirror elicited a response from the presidential secretariat.
“President Ranil Wickremesinghe has decided to appoint a special presidential investigation team to look into the matter.” Daily Mirror, 22nd December 2023
In actual fact, Dr. Subasinghe was referring to a specific data point in the Grave Crime Abstract of the Sri Lanka Police, i.e. since 2015, Rape data with the Sri Lankan Police have been recorded under three categories in the Grave Crime Abstract.
10. Rape of women over 16 years of age,
11a. Statuary Rape (women under 16 years of age) with consent of the victim
11b. Statuary rape (women under 16 years of age) without consent of the victim.
According to the Grave Crime Abstract 2022 – the latest available data, the number of rapes of women over 16 was 257, with 1391 cases of statutory rape with consent, and 338 cases of statutory rape without consent.
So, any special presidential investigation team needs to first understand why the Sri Lanka Police has chosen to collate data in this oxymoronic manner. When The Grassrooted Trust has previously asked colleagues within the Sri Lanka Police Force as to why this data point [statutory rape with the consent of the victim] exists, the response has been that this reflects those girls who have eloped [panala yanawa] of their own free will. This distinction is apparently crucial to how the police decide to prosecute the case.
Anecdotal evidence from the Athwela Sahana Piyasa team that responds to instances of sexual violence in the Ibbagamuwa Division indicate that in the event a young girl has willingly eloped, the girl’s family is encouraged to reconcile with the perpetrator, wait an appropriate period until the girl is of marriageable age [18] and then get married.
The statement by Dr. Subasinghe, and the resulting furor in mainstream, electronic and social media is another example of our country’s struggle with articulating and comprehending consent.
Our laws are relatively clear, for example under Article 363 the Penal Code, rape is defined as sexual intercourse with a woman in five specific scenarios:
(1) sexual intercourse without consent;
(2) sexual intercourse even with consent where the woman is in lawful or unlawful detention or where consent is obtained through intimidation, threat, or force;
(3) sexual intercourse where consent has been obtained when the woman is of unsound mind or in a state of intoxication administered to her by the man or some other person;
(4) sexual intercourse where the woman has consented because she believes she is married to the man;
(5) sexual intercourse with or without consent if the woman is under 16 years of age unless the woman is the accused man’s wife, she is over 12 years of age, and she is not judicially separated from the accused.
In addition, we have relative specificity around rape of women within custodial settings.
The rape law being enforced because a woman believes she is married at the time is indicative of our struggle to comprehend consent within marriage. Our marital rape law is limited and enforced only if the husband and wife are legally/judicially separated at the time of rape. If wives are legally raped within marriage in Sri Lanka, then statutory rape with consent shouldn’t really shock or surprise us.
“The idea that non-consensual sexual intercourse between a man and his wife does not amount to rape has its origins in outdated cultural rationale. This includes ideas such as a woman being merely an extension of her husband under law and therefore martial rape amounts to him illogically accusing himself of a crime; that a woman is the property of the husband and thus marital rape cannot constitute property damage; that the contract of marriage includes consent to the obligation of sex; and that allowing a woman to accuse her husband of rape would damage the marriage relationship beyond the chance of reconciliation.” – Legal Reform to Combat Sexual and Gender-Based Violence, Centre fort Policy Alternatives, 2020
At the end of 2023 the Foundation for Innovative Social Development [FISD] released an Advocacy Brief on Sexual Abuse of Boys in Sri Lanka, which called for the expansion of the definition of rape to include boys.
“Expand the definition of “Rape” by amending section 363 of the penal code to ensure equal protection for boys.
- Expand the definition of “sexual intercourse” section 363 to include penetration of the vagina, anus, or mouth of another person.
- Replace the word woman in all occurrences in the section with person. This will ensure equal protection for boys and girls under all circumstances identified in the section.
- Remove the double standard on age of sexual consent by removing gender biased pronouns and ensure protection of all children by increasing the age to 18 years in Statutory rape provision in 363(e)”
This advocacy brief is yet another example of the need to relook at how we understand rape and consent in Sri Lanka, and the president’s proposed investigative team would be well-placed in convening a meeting of all government and civil society agencies tasked with the wellbeing of our children to address this issue in meaningful ways beyond the news soundbite.
Demonizing Daily Mirror for their reporting around the issue of rape with consent is not what we require. They reported the facts. They reported on an example of the systematic disregard for women and girls in our country. Moving beyond the sensationalism and clickbait isn’t difficult though, both for the reporter and the reader. What remains difficult is the implementation of any comprehensive approach to education and legal reform that will meaningfully address these issues in the long-term.
We cannot hide from the facts. For example, in 2015 when the Sri Lanka Police first listed their disaggregated data on rape, including statutory rape with the consent of the victim, they replaced the more general data point – rape/incest. And, as a result, since 2015 identifying data on incestuous rape proves a challenge. Also, if statutory rape with the consent of the victim was reflective of the Sri Lanka Police’s rational to include those young girls who elope, what was their rational for rape/incest? Is it echoed in the efforts to restrict the travel of mothers for employment overseas? What does that say about our fathers?
We need a government that is serious about affecting real change. Dismantling patriarchal constructs that perpetuate sexual violence is viewed with disdain by those who reduce any such efforts to wokeism/wokery. Ensuring justice for those who are most vulnerable isn’t wokeism and wokery, it is integral to any society that claims to value human dignity.