Innocent children and vicious abusers

by Justice P.H.K. Kulatilaka

Innocence of a child is an inborn quality of the childhood. It is a gift given to them by nature. This quality distinguishes a child from an adult. Ironically the perpetrator of child abuse crime exploits the same to satisfy his greed for sex. He is a slithery and venomous creature living on innocent human flesh.

The crime story unfolded in the Kalutara High Court recently in the case of Republic of Sri Lanka vs. Arsha Marakkalage Milton, Case No. 373/04 was a case in point. At the crime date the prosecutrix was 12 years, a year 5 student. The accused was 60 years of age, a married man with grandchildren. As testified to by the victim, on the crime date in the evening as usual she set off to the well, little away from home to fetch a pot of water. She saw the accused who she addressed as muttha seated on a parapet wall in the backyard of his son's house. He stopped her saying 'daughter, come, I'll show you something'. [Quote - duwa, enna baduwak pennanna].

Quite unsuspectingly she went to him. The predator dragged the child to the backyard of his son's house and mercilessly ravished her. She had screamed but there was no one to save her. The trial judge found him guilty of statutory rape and condemned him to a jail term of 20 years rigorous imprisonment. In addition he was ordered to pay Rs. 70,000 as compensation and Rs. 20,000 as a fine with default terms.

This case portrays how the innocence of a child could easily be exploited by giving false promises.

A judge's dilemma

My memory takes me back to a child rape case that came up before me in the High Court of Colombo [Court No.3] some years back. Child rape cases were almost unheard of then. At the crime date she was a child of five years. When her case came up for trial she was about seven years. The accused was in his early twenties, a neighbour. He had accosted the child he knew to a vacant house promising to give her some chocolates and ravished her.

The prosecutor, a lady state counsel called the victim to the witness box. She was quite an innocent looking beautiful child, nicely dressed. She appeared to be very much amused in seeing what was happening around her. A big question cropped up in my mind. 'Am I to get this child to relate to court the agonising experience she underwent in the hands of the accused?

Am I to allow her to be cross examined?

Is it not going to be another ordeal for the poor child?'

Judicial mind

It was not the judicial mind that I looked to for an answer, but to my human conscience. I adjourned Court for a while and summoned both the state counsel and the defence counsel [counsel for the accused] to my chambers. I explained to them the danger of getting this poor child to speak about the ordeal that she had faced. I told the latter that I will give a reasonable reduction in the sentence if he pleads to the charge.

The defence counsel succeeded in getting his client to agree to plead to the charge. When I resumed sitting the accused pleaded guilty to the charge. I after convicting him imposed a reasonable jail term and ordered a reasonable compensation to the victim. I was happy because I saved the poor child from another predicament.

It is awful and dreadful to know that in some cases the offender was in the family itself. Media have often reported of instances where the alleged offender was her father, step father adoptive father, grandfather, a sibling or any person who stands towards the victim in any of the prohibitive degree of relationship as is specified in the definition of the offence of incest. [see section 363A of the Penal Code].

If the community is seriously and genuinely conscious of eradicating this menace of child rape, grave sexual abuse and abuse of children it should be well acquainted with the gravity of this crime and more watchful. I recapitulate for the benefit of the civic minded readers the contents of a placard carried by the protesters against the famous gang rape and murder of a physiotherapy student in New Delhi. It read 'You can get raped but not protest against rape'. [Telegraph Group London, 2012].

Statistics

An analysis carried out at random relating to 300 child abuse cases for the period 2001 to 2004 by the then state counsel Kalhari Liyanage, presently an additional District Judge in her presentation at the Medico Legal Society of Sri Lanka Scientific Sessions 2004 revealed inter alia the following startling facts. Of the victims, eight percent were below five years of age. Twenty-one percent were six to 10 years of age. Seventy-one percent were 11 to 16 years of age.

Her analysis further showed that in 40 percent of the cases crime scene was the victim's home, in 26 percent it was the crime doer's house, four percent way side, three percent inside school premises and 26 percent in other places. The above data reveals how vulnerable and helpless the children are.

Studies have revealed that poor children from broken homes become easy prey for these human vultures. In fact the child rape victim in the Tangalla gang rape came from a family of a troubled background.

The State has a binding obligation to protect and safeguard children from any form of sexual harassment, sexual abuse and other forms of violence both at home and outside. It does not mean that the community can shirk their responsibility and put the entire blame on the government.

Behind the curtain

An incredible crime story was unfolded in the High Court of Kurunegala in Case No. 76 /10. The virtual complainant was the mother of the child who was just 11 months. The perpetrator was her father. On the crime date when the child was alone inside the bedroom the child started crying in pain. Smelling a danger the mother rushed to the room. She saw her husband [the accused] in an unusual behaviour holding the child and the child was bleeding.

Mother raised cries. The neighbours had apprehended him and handed him to the police. He was charged with grave child abuse. When the case was called on the trial date the police reported to court that the accused was absconding.

The crime episode in the High Court of Kalutara, Case No. 847/07 too was vicious and frightening. Here too the victim was an infant of 11 months. The accused was a coconut plucker from the neighbourhood and was 40 years old. He had befriended the mother of the child. On the crime date he had intruded into the house while the mother was washing her clothes in the well. The child was with her disabled aunt.

The brute had grabbed the infant child from her and sexually assaulted the child. At the trial the judicial medical officer who had examined the child victim expressed the opinion that if prompt medical attention was not given the child would have succumbed to her injuries. In his judgement pronounced on March 20, 2013 the Judge observed that no man living in a civilised society will ever commit a grave sexual abuse on a child of such tender years still living on mother's milk.

'Even a wild animal wouldn't do such dastardly acts to its offspring', the Judge observed. The accused was convicted of grave sexual abuse and sentenced to 20 years rigorous imprisonment. He was ordered to pay a heavy compensation and fine with default terms. Incidentally these are not isolated cases. A number of such dastardly offences committed on toddlers by married men are pending in our courts. Truth is hurting and painful. Nevertheless it should never be ignored. These crimes are really intriguing, bizarre and dangerous. They are an indictment against the entire community.

Prophetic announcement

I recall what President Mahinda Rajapaksa had said at a public gathering when he heard of the gang raping of a child in Tangalle - '... a section of the society is ill. If this state of affairs continues all the development work will come to nought'. This wise and prophetic pronouncement underscores the urgent need to call for a national soul searching.

I quote here from a speech made by US first lady Michelle Obama at a symposium on 'Investing in Our Future' at the Kennedy Center in Washington which is to the following effect - '... But it's going to take leadership like us, women like us, speaking in our countries and making sure that young girls are not subject to abuse and are loved and valued'.- Washington, August 6 2014 .

To be continued