By Chamathka Ratnayake and Tarangee Mutucumarana (Yeheliya Foundation)

Note: This is a two-part article. Please click here to read Part I

A VICTIM CENTRIC COMPLAINTS AND INVESTIGATION PROCESS 

If we are to see effective enforcement of the law a trained specialized online sexual violence unit within the Sri Lankan Police Cybercrime unit must be established. The unit must be given sensitivity training, with an understanding of the psychological impact sexual violence can have on a victim, provided with the capacity to investigate offenses regardless of specific geographical location and be easily accessible to victims who can lodge complaints in any of the three languages without fear of their privacy being violated.

Much training is being conducted for the Sri Lankan Police so that each station has the knowledge to deal with these cases instead of sending them to the CID cyber-crimes division. The Police personnel investigating and prosecuting offenses must be geared to meet the evolving challenges of cyber violence and to deal with complainants in a manner that builds greater trust and confidence in the Sri Lanka Police.

It must be noted that a victim can make a complaint at any police station and that she may not choose to go to the nearest police station if she has no confidence in it or she does not want people of her community to be aware of the harassment etc. Thus, the police personnel should not refuse to take down her complaint on the grounds of ‘incorrect’ jurisdiction. A complaint must be lodged even if there is no evidence, details of the perpetrator, or no probability of being able to prove the allegation in Court, etc. A child can be accompanied by a parent or guardian and all victims should be able to make their complaint in a private setting where there are no other persons who can overhear the victim. It is important to refer the complainant for physical or mental medical care if the police officer feels that such is necessary before taking down the complaint. The complainant can be advised that it would be helpful if a report from a mental health professional can be obtained to prove ‘injury’ under Section 345 of the Penal Code.

A female Police constable at the Women’s and Children’s desk must take down the complaint if the victim is a woman or child. It is most apt if the police personnel can be in civil clothing when taking down a complaint of a minor. Every complaint must be taken with respect and dignity and the principles of legality, necessity, non-discrimination, proportionality, and humanity upheld. It must be taken without undue delay in chronological order, adhering to the procedure laid down in Section 110(1) of the CCPA, in a language that the victim is comfortable in. In the case of a minor, child-friendly, simple language to fit the age and maturity of the child, should be used, while continuously checking that the child correctly understands the questions.

The Police, the National Child Protection Authority (NCPA), and other technical experts, should exercise due diligence and follow a victim-centred approach that is effective, sensitive, and non-judgmental when taking down complaints, where the victim is never blamed for her actions through phrases such as “it’s your fault, you should have known better, why did you send the pictures, is this how you behave, aren’t you ashamed of yourself” etc. Such comments are disrespectful and inhumane and will no doubt lead to further trauma. Under no circumstance, should the victim have to make the same complaint multiple times as that would lead to secondary victimization which must at all times be avoided?

It is of utmost importance that the material submitted as evidence by the victim is dealt with in a manner that protects the privacy and dignity of the victim and if necessary to store, infrastructure to store such material confidentially is provided by every police station. The complainant must be informed that these documents/videos may be accessed by investigating officers and may become part of the evidence in Court, to help prosecute the offender. Having informed the complainant on what to do if further developments to the crime occur and the process that will follow after the complaint is lodged, the police personnel must produce a receipt acknowledging that the complaint was lodged to the complainant.

The investigating officer must without delay, liaise with the Computer Emergency Readiness Team (CERT) or the NCPA in the case of a minor to take steps to have the content removed, after having made copies of such pictures/ videos, with the consent of the complainant, for evidence purposes. The officer must also request CERT to provide information relating to the website or person who uploaded the offensive information and keeps the complainant aware of the developments of her case throughout and after the investigation, Under Section 3(f) of the Assistance to Victims and Witnesses Act, the victim can request the police station for information regarding the progress of the investigation. Such an investigation must be concluded as expeditiously as possible.

Under the Assistance to and Protection of Victims of Crime and Witnesses Act, all steps must be taken by the investigating officer to safeguard the victim, especially if there has been a threat or incident of offline violence and support should be provided to remain in a location of their choice.

Due to the prevalence of cyber violence cases being settled by the police, reoffending is possible. To prevent such an incident, the police personnel must always record the complaint and the statement from the suspect, the complainant must be informed about her right to redress and a settlement must only be reached with the consent of the complainant, and if the complainant does not want to pursue an inquiry. Settlements must always be in the best interest of the complainant after they have clear information on the matter.

Alternative complaints procedures implemented in the Commonwealth 

The United Kingdom also initiated a national stalking helpline and national revenge pornography helpline to assist victims of such abuse and guide them through instances of online abuse. The helplines provide victims confidential advice from helpline practitioners, help with reporting and removing content online, provide advice on the social media platform’s community guidelines and policies and how to report and remove content to which they should respond promptly, provide advice on how and what evidence you need to gather and when you should approach the authorities and free, accessible, client-centered legal consultations. Similarly, although Sri Lanka’s Women Help Line – 1938 s has been established with the objectives of providing assistance and relief for complaints related to all forms of discrimination against women, defilement of the rights of women, harassment, and all kinds of abusive circumstances, having a dedicated helpline victim of cyber abuse where expertise and guidance can be provided to the victim at the first point of contact may be critical in providing speedy and efficient redress to the victim.

In New Zealand, individuals can complain to a government-approved independent agency about communications that breach these principles, and online content hosts must take certain steps to resolve complaints about information published on their sites to benefit from provisions that protect them from criminal or civil liability. What is distinctive about the implementation of laws in New Zealand is they function not only to prevent, and mitigate the harm caused to individuals by digital communications, but to also provide victims of harmful digital communications with a quick and efficient means of redress – which is crucial to mitigate further emotional damage or distress to the victim. The empowered Independent Agency in this case is even empowered to file a complaint with the authorities on behalf of the victim if the content isn’t taken down within a certain period. Similarly, a broader,  and specialized mandate could be given to the Computer Emergency Readiness Team (CERT) by the government of Sri Lanka to oversee cases regarding victims of personalized cyber-crimes.

A VICTIM CENTRIC COURT

Victims can wait a long time for their case to go to trial and trials can be lengthy. Going to court can have practical challenges for victims too, such as managing childcare, transport, and employment. Judges must balance the needs of all parties in the case to ensure a fair trial and may not always be able to work around victims’ requirements. The court environment in Sri Lanka is particularly challenging for young witnesses and victims with specialist needs. Therefore, giving solutions to general, but pertinent practical problems is necessary to improve the court process.

There is a need for not just law that criminalizes these acts, but also procedural provisions necessary to investigate, prosecute and prevent these offenses the Criminal Procedure Code must be amended to protect a victim’s privacy during investigation and trial, to allow for evidence of such sexually explicit images or videos to be led in-camera, and for the same not to be stored in the court record except where necessary, and even then, with privacy guaranteed. Further, Section 7 of the Evidence Special Provisions Act, requires one party to give the other a copy of the evidence that they propose to tender at the trial. This would inevitably give access to the defense to see intimate pictures which will discourage victims from making a complaint. A proviso to this section in necessary circumstances will make the court system more favorable to the victim.

The inadequacies in the current victim and witness protection scheme, particularly as relating to the National Authority for the Protection of Victims of Crime and Witnesses, must be addressed and the victim and witness protection scheme as a whole must be properly enforced.

Further, developing and integrating specialist training programs for justices, advocates, and other Court actors will also be beneficial in making the Court procedure more victim-friendly to ensure justice, protection, and support to all victims. This is important when the court deals with vulnerable adults and children. The course must cover a range of skills that judges and advocates need to adopt to ensure a vulnerable witness does not feel overwhelmed or under pressure so that they can give their best evidence to the court.

Advocates must be trained to develop appropriate language when they are cross-examining witnesses and ensure advocates have a broad understanding of current case law and procedure so vulnerable witnesses can participate fully in the trial process.

Special measures can help reduce the stress of attending court for vulnerable and intimidated witnesses and help them give their best evidence. These measures include live video links, video-recorded evidence-in-chief, and screens around the witness box. Witnesses can also give evidence with the aid of an intermediary (a communications expert), give evidence in private, and have judges and barristers remove their wigs and gowns. Special measures apply to both the defense and prosecution witnesses but not the defendant, and they are subject to the discretion of the court. If the quality of evidence given by a vulnerable adult witness may be diminished by fear or distress at the possibility of public identification, the criminal courts should be able to impose a reporting restriction. This provides the witness with lifetime protection from being identified in the media, prohibiting the publication of identifying details such as names, addresses, or photos. The court must be satisfied that the restriction is likely to improve witness cooperation and evidence quality. Automatic reporting restrictions apply to victims of sexual offenses.

Video links can be used to allow vulnerable victims to provide evidence away from the defendant allowing victims to give evidence at a time and place convenient for them, away from the defendant, and increasingly away from the courtroom altogether.

The Courts must raise awareness of the ability to apply for reporting restrictions for witnesses requiring anonymity or protection.  A court could be empowered to ban the publication of material identifying adult witnesses in criminal proceedings if the court believes the quality of the witness’s evidence or cooperation with the case could be diminished by fear of public identification. This may help encourage vulnerable victims to take their case forward especially in cases where the reputation and emotional wellbeing of the witness may be compromised.

Victims can be victimized twice, by the harm of the crimes and by institutional neglect – this is known as victimization. A victim mustn’t be re-victimized due to institutional neglect, especially within the court system. Sentencing could be carried out in a rehabilitative fashion before incarceration and helps to move away from punishment as the only option. The offender becomes an active participant within this process, fostering responsibility and accountability for his criminal actions, rather than using a solely punitive approach. As an expert in crime analysis, the Criminologist could be involved in the court process to effectively analyze cyber-crime behavior. This collaboration with the Criminologist will strengthen the investigative ability of the team, making detecting cybercrime easier. The goal of this collaboration is to motivate the offender to undertake treatment to reduce the risk of future recidivism. Forensic Psychologists could also assess offenders’ personality risk factors that may impact their offending behavior. The Criminologist will also be involved in establishing the offender treatment plan including identifying relevant treatment targets. It is the responsibility of the offender to achieve the treatment targets outlined by the Criminologist and provides adequate evidence of risk reduction. At the end of this procedure, the Court makes a decision on sentencing based on whether or not the offender’s rehabilitation plan is realistic and achievable.

EFFICIENT DATA COLLECTION 

Within 24 hours, the First Information Report and a record of the investigation must be sent by the OIC to the Information Room of the Police Headquarters, DIG Crimes, Director Women and Children’s Bureau, and where appropriate NCPA for data collection and monitoring. The report must include: the name of the Police Station, date and time of the complaint, name, and address of the complainant, findings of the investigation, date, time and place where the crime was committed, the suspect’s and victim’s name, gender, age and address, a summary of the investigation, the investigation officer’s details and any other important information.

The current state of legislation makes it difficult to prove a case of Cyber Harassment and Cyber Stalking beyond a reasonable doubt. Therefore, the cyber forensic units should be well equipped and armed to combat cyber warfare to prove the victim’s case beyond reasonable doubt to help hold perpetrators accountable for Cyberbullying.

OTHER PRAGMATIC SOLUTIONS

The first step to increasing public sensitivity to cyberbullying is to promote awareness on the subject. Thus, more and more workshops on cyberbullying must be conducted to school children under the leadership of The Ministry of Education as well as The Sri Lanka Police Cyber Crime Unit where the positive use of social media and other online platforms are included in the curriculum. They must also be taught what action to take if they do become a victim of cyber violence, such as saving all evidence, in chronological order, through screenshots and links. Furthermore, the consequences of victim-blaming must be entrenched in these young minds. Finally, introduce comprehensive sex education which covers online risks and dangers and protecting privacy online. This could go a long way in allowing younger citizens, particularly girls, to identify and address unhealthy and criminal behaviors such as being pressured or coerced into sharing intimate images and videos by their partners or other persons; and how to navigate their sexuality safely in the digital world.

Provide counseling services for persons who have been victims of online sexual violence The expansion of counseling and mental health services through public healthcare or State-facilitated must accommodate persons who have been victims of online sexual violence, through adequate training and assistance from private organizations.  Persons who have been victimized must also be able to easily access counseling services if and when they engage the Police and the judicial system.

Hold bullies accountable. Let them know that their behavior is unacceptable and that they will face consequences if they continue to resort to cyber-bullying. Further, hold those who blame victims accountable, help and support victims open up, and empower those around the victim to support the victim.

A multi-sectoral holistic approach with equal participation of all stakeholders would be necessary to successfully combat the issue.

CONCLUDING THOUGHTS 

There are obvious hardships associated with investigating and prosecuting Cyber Stalking (CS) and Cyber Harassment (CH) such as anonymity and the fact that third parties are offered as bait. There is a need for well-written legislation that details the protections and penalties for CS and CH in Sri Lanka as lack of adequate legal protections and lack of knowledge may unintentionally help a Cyber Criminal to trap a victim in a state of terror and to cause a victim to feel defenseless.

A standard operating procedure has been introduced to the Sri Lanka Police to be used when policing cyber violence, which emphasizes the need for a victim-centered approach in their response to complainants of cyber violence. The police are every civilian’s go-to institution when they are made a victim of any offense, thus it is of utmost importance that the police officer lodging the complaint is efficient, sensitive, and non-judgmental and becomes a person who the complainant can trust and have confidence in. It is only if the police officer can build this rapport with each complainant that civilians will feel incentivized to make complaints. If we as a society are determined to reduce the crime around us, we must encourage complaints to be made, as it is only then do we even have a chance at bringing the perpetrator to a court of law and providing the victim with a form of redress.

Seeking justice through the court system can be daunting for a victim of a cyber-crime. Trials can be complex, and they may be heard months or even years after a crime has taken place. Many victims will be vulnerable or intimidated and need extra assistance. Therefore a victim-centered approach must be taken during the court process to minimize the impact of going to court on victims by making improvements to the support available, through having better-trained court officials, implementing special measures, strengthening witness protection, preventing re-victimization, as well as responding to their practical needs.

It is apparent from this analysis that there must be extensive changes made to both the substantive and procedural aspects of the law, the complaints mechanisms, and the court process as well as other aspects that go beyond the legal system for the victim to be able to seek justice efficiently and steadfastly. In an age where cyber exploitation and violence are ever-increasing and rampant, any further lethargy in making these much-needed reforms could not only result in a failure in the system of justice but also lead to detrimental and irreversible harm to those affected by such crimes.

 

About Yeheliya Foundation

The Yeheliya Foundation is a registered Charitable Foundation under the Companies Act of 2007. Since its inception in 2018, Yeheliya has been relentlessly working to create a safe space and an equal platform for young girls and women from different walks of life. Hence, the primary focus of Yeheliya’s policy advocacy is on identifying and bridging legal and policy gaps within the Sri Lankan legal, economic, social and political systems, which are identified to be inherently discriminatory towards women.

About the Writers 

Chamathka Ratnayake is an Attorney-at-Law and Director of the Yeheliya Foundation which has been  striving to create a safe space and an equal platform for young girls and women from different walks of life, with its advocacy focused on identifying and bridging legal and policy gaps within the Sri Lankan legal, economic, social and political systems, identified to be inherently discriminatory towards women. 

Tarangee Mutucumarana is an Attorney at Law and a Barrister at Law of England and Wales. She holds a Bachelor of Laws and a Master of Laws from the University of London and has completed her studies at the University of Colombo in the field of Forensic Medicine and Science. While working as a Junior Defence Counsel in the Chambers of a President’s Counsel she volunteers with Civil Society Organizations in the fields of Human Rights and empowerment of women and youth. She is passionate about lobbying to reform laws that are inherently discriminatory towards women and girls, to create safe spaces and an equal platform to all women, and to this effect has worked with women in the grassroots in areas of menstrual hygiene and political representation and had the honour of meeting the Government leaders to discuss reforms to the law, in an effort to bring tangible change