Sexual offences:
A strong case for enhanced punishment advocated
by Justice P.H.K. Kulatilaka
[Part 2]
Relevant ministries, National Child Care and Protection Authority,
Probation and Child Care Department should give their mind how to
organise islandwide awareness programs.
In an exhaustive 'Study on Rape’ carried out by Prof. Savitri
Gunasekera and Camena Gunaratne in 1998 recommended the setting up of a
National Level Desk at the Police Headquarters as a separate unit to
give leadership in coordinating the islandwide response of the police to
the problem.
This would entail in giving the officers preliminary training for
their work.They further suggested that the capacity of the National Desk
could be strengthened by linkage to the Attorney General’s Department,
the Police Training Institute and the university.
Statutes
The role of the media, is not merely to report the news. The people
must know what the law is all about.That is common sense. At least once
a month they should publish the relevant sections of the statutes I have
mentioned highlighting the punishments.
The State may be able to make use of the ‘revolting undergrads’ in
conducting awareness programs in its attempt at salvaging the nation
from this menace of crimes relating to sexual abuse of children. Legal
brains of the A,G’s Department will no doubt help in this process.
The perpetrators of child sex offences know that even if they are
apprehended they will be out on bail after about two weeks. They
continue to be a danger to society. A daily paper on October 4 in its
editorial reported of a case where ‘the pervert who abducted a little
girl in Ambakolawewa, Kurunegala recently had previously raped a girl
and was on bail at the time he committed the second crime’. The
journalist commented that ‘same goes for most criminals who harm
children and women while roaming freely with court cases pending against
them’. The best remedy would be to conclude their cases expeditiously.
Hence I would suggest the authorities to make a change regarding bail
to the following effect.
‘When a person suspected of child rape including incest or grave
sexual abuse of children is produced before any Magistrate, he should
remand such person until the conclusion of the trial.
Provided however, that the High Court may, in exceptional
circumstances and for reasons to be recorded release such person on bail
at any time prior to the conclusion of the trial’.
According to the definition given in the Penal Code, ‘Child means a
person under 18 years’. But in terms of the definition of rape in the
Section 363 a dichotomy has been introduced which makes the very purpose
of bringing the new law Penal Code [Amendment] Act No.22 of 1995 to curb
the rising trend in Child Rape Crime ineffective and meaningless.
Dichotomy or duality is to the following effect.
Firstly, ‘a man is said to commit rape who has sexual intercourse
with or without her consent when she is under 16’ [The qualification
given’ unless the woman is his wife who is over 12 years].
Consent
Secondly,’ a man is said to commit rape who has sexual intercourse
with a woman without her consent when she is above 16 even where she is
his wife and she is judicially separated’.
In the first category consent is no defence. The prosecution has only
to prove the identity of the accused and the act.In the second category
the prosecution has to prove that the act was committed without her
consent. In most of the cases in the latter group the prosecution fails
for the reason that the victim has to face severe cross examination
which would end up in an acquittal of the accused.
An easy way out for the rapist is to say that she asked for it.Such a
defence is simply the manifestation of blame the victim culture. This
mechanism shifts the blame to the victim herself rather than her
psychopathic tormentors. Delhi-based journalist Sunitha Vakil says this
mindset is a sad reflection of the age-old patriarchal mindset and a
male-dominated society.
In the Kandy child rape case the investigations revealed that even
though she is presently 17 the alleged rapist used to have sex with her
inside his van even when she was 12. Nevertheless the possibility is
that his case would fall under the second category. Hence the burden is
on the prosecution to prove that the alleged offender had sexual
intercourse with the child without her consent. This proof will be
beyond reasonable doubt.
Age between 16 and 18 years covers a crucial period in a woman’s
life. Most probably the girls of this age group are school going
children studying for GCE O’Level or A’Level examinations. This is the
period when childhood passes on to adolescence. It is just after a girl
had attained her puberty. That she could be easily lured to engage in
sex. She could be a victim of procuration for prostitution. The children
in this age group have easy access to explicit internet pornography. The
Police have found that there are some new developments as sharing of
explicit pornography known as ‘sexting’ in England. It is undeniable
that the girls between 16 and 18 are an extremely vulnerable group
requiring special protection of the law. Hence I strongly urge that
section 363 [e] introduced by the Penal Code [Amendment] Act, No. 22 of
1995 be amended by deleting ‘under 16 years of age’ and substituting
‘under 18 years of age’. Then it will not be easy for the alleged rapist
to get away for the reason the prosecution has only to prove the
identity and the act. Consent of the victim will no longer be a defence.
Even though the mechanism of having a mandatory minimum was
introduced by the Legislature with a view to have a deterrent effect on
the crime doer as well as the potential predators the Supreme Court did
not like the judicial discretion being taken away.
In the case of S.C. Ref.No.03/08, H.C. Anuradhapura, No. 333/o4 it
was held ‘that the minimum mandatory sentence in section 364[2] [e] is
in conflict with Articles [4][c], 11 and 12[1] of the Constitution and
the High Court is not inhibited from imposing a sentence that it deems
appropriate in the exercise of its discretion’.
Since the child rape and grave sexual abuse of children crime are
increasing, in view of the above interpretation by the apex Court I
earnestly hope that judges will act according to their conscience and
ignore the mandatory minimum prescribed by the Statute only in
exceptional cases.
An inadequate sentence adds to the anguish of the victim who feels
that society has not recognised her suffering, particularly when she had
to speak about the offending against her that she might have chosen not
to rehearse publicly.
Some points to ponder
In fact when the Tangalle gang raping of a destitute child was
reported an irate minister very much moved by the dastardly crime said,
‘Hang them twice, not once’. A similar mindset was expressed by the
grief-stricken mother of the Delhi rape victim referred to as
‘brave-heart’. Living out the rest of my life will be very hard if these
men are not hanged’ [The Telegraph Group, London 2913].
The Indian High Court heard this case expeditiously and pronounced
the sentence of death on all the accused except one who was a minor. The
same newspaper reported of a case where a Sudanese judge after
convicting child rape offenders for ravishing a girl of 14 ordered seven
men to be hanged, I would suggest that in child rape cases instead of
imposing a rigorous imprisonment for 20 years to substitute a sentence
for life with no parole.
Do away with the statutory provisions which permit remissions of the
whole or part of the punishments imposed on the convicted by Court in
all cases relating to sexual abuse of children. The readers will
remember the case of underworld criminal Gonawala Sunil who was serving
a heavy jail term for gang raping a well-known doctor’s teenage
daughter. He was let out from prison on presidential pardon. He was made
a Justice of the Peace. He was vested with powers to step into any
Police Station and dictate terms. Credit must be given to the then
President for giving presidential applause to a predator of a child rape
crime.
Whipping
Whipping as a mode of punishment will no doubt be a deterrent to any
crime doer. This mode of punishment was abolished some time back as it
was considered to be a degrading and inhuman punishment. Nevertheless in
view of the dangerous trend now prevalent in society no sane person will
object to bringing back whipping as a mode of punishment to predators of
child rape and grave sexual abuse of children.
After the Delhi rape and murder case and a whole lot of similar cases
threatening Indian society the Indian Parliament is seriously
considering introducing chemical castration to the statute book.
California, Florida and Louisiana in the United States an Poland are
some of the countries that impose chemical castration as a mode of
punishment for child molestation.
The Sri Lankan community may not object to introducing chemical
castration to predators convicted for child rape at least as a temporary
measure to combat the ever rising trend in child rape which would
destabilise the society.
These are my humble suggestions having studied the ongoing trends
that pose a dangerous menacing problem to the Sri Lankan community as a
whole.It may be your child tomorrow. You will never know when and where
a predator would strike. ‘Prevention is better than cure,’ they say. The
danger here is that there is no cure once the damage is done. The poor
child suffers physically and mentally for the rest of her life. Who is
at fault? The answer is yours.
The writer is former Director of the Sri Lanka Judges Institute.
Concluded |