28th March 2024
Yakalla, Ibbagamuwa
Last week the team at The Grassrooted Trust put together a petition to be brought forward before the Supreme Court to challenge the apparent reduction of the age of sexual consent to 14 from 16 in section 364 relating to statutory rape. Grassrooted didn’t go to court. The Minister of Justice withdrew the proposed amendments.
There were also series of amendments to section 363 of the penal code which deals with rape of those over 16, of which the move to replace the language of “woman” with “victim” was welcome and suggested that law makers were listening to those activists and organizations working in the field of sexual violence that had called on the state to recognize male rape as rape. While the existing grave sexual abuse law did cover instances of when men and boys were raped in Sri Lanka, to finally have the state explicitly state that men and boys, and also those who are Trans could also be victims of rape was significant.
For this to work another welcome amendment to 363 was that the definition of rape was necessarily expanded to include anal and oral rape, where hitherto only vaginal rape was recognized as rape. Caveat: This still involves a penis at play i.e., the new rape definition was not expanded to include the insertion of objects. That said, the amendments to 363 are definitely a step in the right direction.
So, amidst these seemingly sensible reforms, we had the jarring suggestion that with section 364 on statutory rape the age of 16 could be reduced to 14 in certain instances, and that leniency could apply even when the age-gap widened, and the perpetrator was around 22 years of age.
As reported on earlier this year, the Sri Lankan Police Grave Crimes Abstract 11a reads – Statuary Rape (women under 16 years of age) with consent of the victim. The police claim this oxymoronic data point refers to those couples who elope, i.e. the girl consents to leave with the boy/man.
The current penalty for section 364 reads as follows:
“[The offender] shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with a fine and shall in addition be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.”
Then, leniency comes into play as suggested by the 11A data point on the grave crimes abstract, especially if the perpetrator is still a child too. [Everyone under the age of 18 is deemed a child according to Child Rights Convention to which Sri Lanka is a signatory].
“Provided however, that where the offence is committed in respect of a person under sixteen years of age, the court may, where the offender is a person under eighteen years of age and the intercourse has been with the consent of the person, impose a sentence of imprisonment for a term less than ten years.”
So, if the court feels that the boy [under 18] and girl [under16] have had consensual sex, then, the penalty will reflect that reality. The welfare of the child appears to be at the centre of this decision.
The amendment to leniency that the government tried to pass was this:
“Provided however, where an offence under section 363 is committed in respect of a victim of or above FOURTEEN years but under sixteen years of age, by an offender who is under twenty two years of age at the time of the commission of such offence, –
- Where it appears to the satisfaction of the court that the sexual penetration had been with the consent of the victim, the court upon conviction may impose sentence of imprisonment for a term less than ten years:
Provided however, the court may, in appropriate circumstances suspend the term of imprisonment imposed under this paragraph, subject to the provisions of section 303 of the Code of Criminal Procedure Act, No.15 of 1979; or
- Where there is no sufficient evidence to prove to the satisfaction of the court that the sexual penetration had been with the consent of the victim, the court shall impose a sentence of imprisonment for a term not less than ten years and not exceeding twenty years and a fine and shall in addition order the offender to pay compensation of an amount determined by court to the victim for the injuries caused to such victim.”
So not only are we saying that a fourteen-year-old is in a position to consent to have sex, we’re also saying that the male perpetrator can be handed down a suspended sentence. To many this appeared to further bolster the entitlement and impunity that male perpetrators of sexual violence enjoyed in Sri Lanka.
What emerged as the push backs from various quarters grew louder, including women groups here in Ibbgamuwa, was that the Ministry of Justice had not consulted on these amendments with stakeholders such as the Women Parliamentarians’ Caucus, the National Child Protection Authority, the Ministry of Health including the Family Health Bureau, or with Civil Society actors working in the field of sexual and gender-based violence.
“The Women Parliamentarians’ Caucus has requested Justice Minister Wijeyadasa Rajapakshe to take steps to withdraw the bill gazetted to amend Chapter 19 of the Penal Code which seeks to reduce the consent age for sex to 14.
“According to the amendments made to the Penal Code in 1995, even if a girl under 16 years of age has sexual relations of her own free will, it is considered rape and the proposed amendment to the Penal Code by the Minister of Justice will lower the age limit to 14 years,” the Caucus said.
The Chair of the Women Parliamentarians’ Caucus Sudarshini Fernandopulle said that she requested on behalf of the Women Parliamentarians’ Caucus to withdraw the proposed bill to amend Section 364 of the Penal Code.” – Daily Mirror, 22nd March 2024
Finally, the proposed amendments to both sections 363 and 364 were withdrawn at the end of last week with promises to consult more widely.
“The Justice Ministry has withdrawn its draft bill to amend the Penal Code’s Sections 363 and 364, which deal with statutory rape, Justice Minister Wijeyadasa Rajapakshe said yesterday.
The draft amendment says that where a girl child is over 14 but under the age of 16, a man is below 22 years old, and sexual penetration has occurred with the consent of the victim, the court can impose a sentence of less than 10 years or suspend the term of imprisonment. Among other matters, child and women’s rights activists said they believed it was wrong to lower the age of capacity to consent to sex from 16 to 14 years. Minister Rajapakshe said the amendment was drafted “some time ago” by the Attorney General’s Department, some Supreme Court judges and senior lawyers and forwarded to him. The intention had been to grant some discretion to judges in cases, especially where there has been a romantic relationship.
“Now it appears there are so many aspects to be considered, and when it came up in the Supreme Court on the last day, we informed the judges we are not proceeding with this,” – Sunday Times, 24th March 2024
There are some within Sri Lanka that have argued that 14 is an acceptable global standard. Germany is often cited as an example. Yet, in Germany the age of consent is qualified:
“The age of consent in Germany is 14 years old. Prosecution for statutory rape (or the local equivalent) can result in prison time ranging from 6 months to 10 years. The age of consent in Germany is 14 if both partners are under 18. Sexual activity with a person under 18 is punishable if the adult is a person of authority over the minor in upbringing, education, care, or employment.
A person who is over 21 may engage in sexual activity with someone who is 14 or older, but not yet 16, so long as the younger individual’s lack of capacity for sexual self-determination is not exploited. If it is, the younger individual would need to file a complaint against the person who is over 21 for legal action to begin. Sexual activity performed without consent or by force in any situation is illegal.” – World Population Review
Add to this the ready access to comprehensive age-appropriate sexuality education in countries like Germany, including a focus on social emotional learning principles beginning in pre and primary schools focusing on respect for self and others, trust, consent, kindness, empathy, and it becomes apparent that Sri Lanka has a long road ahead to prepare our young people to be physically and emotionally prepared for sexual intercourse.
We have reported repeatedly on the lack of any cogent approach to education around sex and relationships in Sri Lanka. add to this the near impunity with which perpetrators of sexual violence in Sri Lanka operate. While we have the laws and statutes that prosecute rape and other forms of sexual violence, including online sexual and gender-based violence, our track record on implementation is extremely poor.
The average time it takes for rape conviction in Sri Lanka is between 8 and 14 years depending on which research you access. Neither timeline is ideal, and women and children who are survivors of sexual violence tire of the procedural nightmare and all too often perpetrators walk free as a result of this fatigue. So then, our laws don’t act as the deterrent we hope they will be…
So, we welcome the Justice Minister’s readiness for wider consultation of sections 363 and 364, and we hope that he and the powers that be are ready to listen. We also hope that the amendments will bring with it a commitment to ensure that our courts speed up procedurally and send out the signal loud and clear to perpetrators of sexual violence that the age of impunity is at and end.