Sexual offences:

A strong case for enhanced punishment advocated

by Justice P.H.K. Kulatilaka

It would be worthwhile to quote from a front page editorial of Johannesburg’s Star Newspaper making an urgent call to the nation regarding an alarming trend in the incidence of women and child rape crime in South Africa. It read ‘Stand up. Speak out. Help us turn this evil around once and for all’.

In the first week of September people were shocked to hear from the television channels and daily papers an unwholesome news item of rape and murder of a child of seven years. The incident happened in the Akmeemana Police Division in Galle. The predator was an unemployed frustrated youth. He belonged to ‘Don’t care a damn’ category of crime doers. The child was alone in her house at the time of attack.

The suspect was promptly apprehended but according to the police reports he drowned while attempting to escape from custody. It is unimaginable that this sort of gruesome and blood curdling crimes are happening in a country blessed by the great religions, Buddhism, Christianity, Hinduism and Islam. This is bleak and an appalling situation indeed.

On September 7 Wattala Police reported to Wattala Magistrate’s Court a horrific and sickening case of grave sexual abuse of a child of 12, a grade 6 student by her paternal grandfather. Her father was dead. Her mother had gone abroad seeking employment to run the household leaving the child with her paternal grandparents.

She had no qualms about the child’s safety. It was in the dead of the night the grandmother heard the cry of the child calling her. She found the suspect in the act of sexually assaulting the child in a brutal manner. [In fact the complaint filed by the police described the brutal acts he had committed on the hapless girl who was in his care and custody].

Calamitous

On October 1 as the morning sun rose above the golden pinnacle of the most sacred Dalada Maligawa, Kandy town was perturbed by the news of an act of suspected child rape crime committed in a school van parked on the other side of the Kandy Lake facing the Maligawa.

I verified the veracity of the news from the Kandy Chief Magistrate’s Court. The news was accurate. On information the officers of the Child and Women Protection Division of Kandy Police had apprehended the suspect and took the girl into custody. She is a grade 12 student of 17. The suspect is a married man of 27 with two children.

Investigations have revealed that she had been going to school in that van since 2011 and the suspect used to sexually abuse her from the age of 14. The police found that the van windows were covered with black curtains.They were produced before the Chief Magistrate of Kandy. The suspect was remanded.

Child and Women Protection Division of the Kalutara South Police are highly perturbed by the occurrence of a spate of child rape crime incidents in the Kalutara Police Division. Two of them are gang rape cases. In the first incident a 13-year-old girl had been raped in a three wheeler on November 1.

Already three suspects were produced before the Magistrate’s Court of Matugama. Four more suspects are evading arrest.In the other case a 14-year-old girl had been accosted by her lover and she was forced to have sexual intercourse with his friends. Apparently, these acts had been videoed to blackmail the victim.

Another case was filed on November 4 in the Kalutara Magistrate’s Court where the main predator was her father. After ravishing his daughter he had sold her to a chilli powder seller. Police had arrested the latter but the father is absconding. The readers will remember the Kalutara High Court case of the Republic vs Ajantha Silva where the facts were very much similar. It was a case where the father after ravishing his daughter of 12 had offered her to a stranger who had seen the incident. Both were indicted.

The stranger died in prison while the father was convicted and the trial Judge had imposed the maximum sentence of 20 years rigorous imprisonment on the convicted father. The sentence was passed on July 10, 2012.

The judge said it is sad to see this type of brutal crimes happening in a Buddhist country. Recurrence of a similar incident in the same Kalutara Police Division indicates that even deterrent punishment is no answer to curb child rape and grave sexual abuse of children.

Readers will remember that at the commencement of my series of articles on Grave Child Abuse and Child Rape I said that if these anti-social happenings are ignored with a cynical sneer we are evading a menace which would destroy the entire social strata. I am reminded of an interesting quote from Shakespeare, Come what come may.

Time and the hour runs through the roughest day’. [Macbeth].

How to contain such brutal crimes is a million dollar question. High Court Judges with whom I discussed this topic told me that in almost every case where the accused were found guilty of committing the crimes they were punished with the maximum jail terms and heavy fines and sizeable compensation. Nonetheless, they don’t see any decrease in the number of new indictments coming to court.

I am not preaching a kind of puritanism. Nevertheless all civic minded Sri Lankans irrespective of their religion if they do genuinely love their children who are innocent but helpless and expect them to live in peace and tranquillity enjoying their childhood must concur with me when I say that this dastardly crime against humanity should be countered in the strongest possible terms. A lacklustre campaign will be useless. It must be eliminated root and branch. Otherwise in the alternative close your sense bases and wait as Shakespeare said ‘Come what come may’.

Already the Penal Code as amended in 1995 has introduced rigorous jail terms for child rape crime and grave sexual abuse of children. In terms of Section 363 [e] as amended by the Penal Code [Amendment] Act No.22 of 1995 read with Section 364[e] the convict ‘shall be punished with rigorous imprisonment for a term not less than 10 years and not exceeding 20 years’. In addition, court will impose a fine and payment of compensation.

Predators who are public officers or who are in a position of authority, or being on the management or staff of a remand home or children’s homes or of a hospital as enumerated in the aforesaid section are caught up in this classification. So are predators convicted of gang raping.

Still more stringent terms are imposed on a convict who has committed rape on a woman who is under 16 and the victim stands towards the man in any of the degrees of relationship enumerated in section 364A of the Act [incest]. Here the mandatory minimum has been raised to 15 years.To prosecute a person for incest it is necessary to have the written sanction of the Attorney General.

Grave sexual abuse crime is dealt with in the section 365B. This provision covers both the definition and the punishment aspect of the crime, ‘Grave sexual abuse is committed by any person who, for sexual gratification, does any act, by the use of his genitals or any other part of the body of another person, being an act which does not amount to rape’.

The punishment is heavy. Where the victim is under 18 shall be punished with rigorous imprisonment to a term not less than 10 years and not exceeding 20 years and with fine and payment of compensation’. The victim’s grandfather in the Wattala case referred to above is alleged to have committed an offence punishable under this section. There are many grave child abuse cases filed under this section pending in courts.

No doubt the above punishments are very heavy, just short of death sentence. It is trite law that ignorance of the law is no excuse. A wrongdoer cannot get away by saying that he did not know the law or the gravity of the sentence.

On the other hand had he known what the law is all about no sane person even though he may be a potential rapist would opt to take the risk of facing the dire consequences. Therefore, awareness programs islandwide need to be organised immediately.

The entire community must be made aware of what these crimes are and the severe punishments that are in the offing to catch the perpetrators of sexual abuse of children.

The villagers, the slum dwellers and those living in the coolie lines, city dwellers must be told about the gravity of it. We need to be positive if we are to get rid of the potential crime doer living in the community unseen and unnoticed.

To be continued