BY FAIZER SHAHEID ([email protected])
Last week, a Malaysian Member of Parliament by the name of Datuk Shabudin Yahya made some inflammatory remarks that caused quite a stir when he said, 'Rape victims can have an opportunity to lead a healthy and good life if they marry their rapists'. The World left no stone unturned in labelling his statement as abhorrent and distasteful on social media. It takes us back to the times when the then Minister for Child Development and Women's Affairs, Tissa Karaliyadda proposed that a rapist should be bound by law to marry their victim.
The statement of Tissa Karaliyadda was received with severe criticism from civil society and even those from the ranks of government, and rightly so. Datuk Shabudin Yahya was on similar footing when he made his speech during the debate in Parliament on the Sexual Offences against Children 2017 draft Bill. Yet, a little more extensive study of his statements and the issue he was addressing reveal an alarming issue buried six feet under, with nobody vying for reform, even in Sri Lanka.
Rape in Lankan Law
Rape is no trivial crime by any standards of law or morality, and any statement to the contrary shall raise serious questions as to his or her mental health. However, what does constitute rape? This is a question that many have answered with a feminist perspective over the years.
In Sri Lanka, the present law on rape is found in Section 363 of the Penal Code of Sri Lanka 1883. It was introduced through Amending Act No. 22 of 1995 and it begins:
"A man is said to commit 'rape' that has sexual intercourse with a woman under these circumstances..."
The provision goes on to state five different milieus to which the above description must fit:
Without her consent, even if she is only judicially separated while being his wife.
Sexual intercourse with consent whilst she is in unlawful detention and consent is drawn through intimidation, threat or use of force.
Sexual intercourse with consent that is obtained while the woman is of unsound mind or in a state of intoxication administered to her.
Sexual intercourse with consent where the woman believes that the perpetrator is the husband when he is not.
Sexual intercourse, with or without her consent, if she is under 16 years of age.
The explanation below Section 363 claims that penetration is sufficient to constitute sexual intercourse necessary to prove rape.
It further states that there need not be evidence of physical resistance to prove that rape occurred without her consent.
The punishment for rape is stated in Section 364 of the Penal Code. The punishment, if found guilty, shall be not less than seven years and not more than 20 years and the perpetrator will also be fined. If the perpetrator happens to be a public officer on duty or a member of the management or staff of a remand home or hospital, the punishment cannot be less than 10 years. Further to that, if the victim of rape is a woman who is pregnant, below 18 years of age, mentally or physically disabled or a victim of gang rape, the punishment is also between 10 years and 20 years together with a fine. In addition, the perpetrators will also have to compensate for the injuries suffered.
Unnatural Offences under Lankan Law
Amending Act No. 22 of 1995 also made an offence any act of carnal intercourse against the order of nature with a man, woman or animal. This offence is found in Section 365 of the Penal Code. Although it is very ambiguous in the law as to the interpretation of 'against the order of nature', it is presumed to include homosexual intercourse, necrophilia, bestiality and paedophilia. Sadomasochism is also presumably included under this law. The punishment if found guilty, is incarceration between 10 - 20 years, in addition to a fine.
Gross indecency under Section 365A is another provision that is used to criminalize certain acts of sexual nature which may not amount to rape. The term, 'gross indecency', is interpreted by some to mean homosexual actions that do not necessarily involve penetration. However, this is not expressly stated in the provision, making it very difficult for judicial officers to apply the law in any context.
Strangely enough however, no person has been convicted for offences under Sections 365 or 365A in over half a century. This is most likely due to the extremely ambiguous wording in both provisions which the Judiciary tends to neglect. The offences itself are archaic and outdated. They exist only because the British criminalized such actions during their period of rule in Sri Lanka. However, the Police and homophobes have found good interpretation in the law to take into Police custody any person/s engaging in homosexual activities.
The Male Rapist and the Female Rape Victim
It is understood from this sentence alone that only a man can perpetrate the crime of rape and only a woman can be a victim in Sri Lankan law. It is no different from the language used in the Penal Code of India and other countries and there does not appear to be a change in the attitude towards the law on rape.
The law appears to blame men for the act of rape and only empathize with women. It stubbornly refuses to acknowledge that men can be raped too. This is due to a limitation in the definition of rape. While retaining its very feminazi type outlook, the law does however address the broader issues faced by male victims in an act of rape. This is covered in an offence titled grave sexual abuse.
Grave sexual abuse is found in Section 365B of the Penal Code. It contains all other kinds of activity that may conform to the standards of rape, but does not satisfy the law on rape. It includes the use of any genitals or any other part of the human body or even instruments that can be used to penetrate any orifice in a person's body. This would include the use of pens, bottles or any type of sex toys that can be penetrated into a person's mouth, nostrils, anus or vagina.
Although mentioned in the law, it has been poorly advocated by lawmakers and anti-rape activists and rarely used in practice.
This is a failure on the part of the lawmakers to recognize the propensity of males to be victims of rape and females to be perpetrators of rape.
The law in England is only slightly better. It identifies that the act of rape can only be perpetrated by a person using his penis, or in other words, by a man. However, it does acknowledge that any person, either man or woman, can be a victim through penetration orally, anally or vaginally.
There was however a change in thinking patterns when the FBI in the United States of America (USA) decided to redefine rape wholly. The old definition of rape read, "The carnal knowledge of a female forcibly and against her will". The definition was criticized for its limited scope in addressing the issues of rape victims, and its exclusion severally of crimes associated with rape. Black's Law Dictionary defines carnal knowledge as being, "the act of a man having sexual bodily connections with a woman; sexual intercourse".
The definition conformed to the standard as set in Sri Lankan anti-rape law, where oral or anal penetration, penetration using sexual objects and even the idea of a male victim is excluded. In 2012, the FBI Department of Justice announced a change in the definition of rape. The new definition is,
"Penetration, of the vagina or anus with any body part or object, no matter how slight, or even oral penetration by a sex organ of another person, without the consent of the victim".
This definition is complete and addresses all of the shortcomings of the old definition. Under this definition, males are seen as potential victims and penetration can oral, anal or vaginal while objects can also be used in addition to human body parts. It is time, Sri Lanka, Malaysia, India and all other countries followed suit and expanded its definition to approach and combat the problem of rape better.
Statutory Rape and the Rapist
Statutory rape is by far the most tacit yet most fragile and sensitive part of the law on rape. It involves underage victims of rape. Datuk Shabudin Yahya was addressing this part of the law when he made his very inflammatory remarks, which meant, those who were too quick to jump to their feet failed to grasp the idea behind the statement.
To understand in a Sri Lankan context, it is quintessential to observe that under Section 363 (e) of the Penal Code criminalizes any act of sexual intercourse involving females under the age of 16 years. It does not matter whether or not the female has consented. It falls under the purview of Section 363 on rape, and therefore, the definition is the same. Only a man can perpetrate statutory rape, and there is no age specified for a man.
Therefore, when a situation does arise where two young people below the age of 16 years are in a relationship and engage in sexual activity, the boy is seen as a rapist and the girl as a victim. Furthermore, many situations have arisen in the past where a young girl below the age of 16 years has voluntarily commenced the act of sexual intercourse with a man whom she is in a relationship with.
In occasional circumstances, the girl has even fled her home, and complaints have been lodged against the male in the relationship.
In any case, statutory rape is very unlike other rape related offences. It is a strict liability offence. It requires only the culpable act and intention is ignored wholly. The law does not care that the duo are in a relationship. The law does not care if the duo had consensual sex, or even whether the female initiated carnal activity. The law does not even care if the male lay still after his drinks were laced with drugs and the female made a penetration. All the matters is that there was penetration to convict the male.
When Datuk Shabudin Yahya stated that the rape victim should be permitted to marry the rapist, he was referring to those in a relationship as children below 16 years. He was defending the flexibility in the law that permits child marriage by stating that when children have attained a state of puberty and are in a relationship, they should be permitted to get married even as children. This is the mildest form of interpretation of his statements.
To put it more boldly, Datuk Shabudin Yahya was justifying child marriage by identifying the loophole in the law on statutory rape. To make it clear, the law on statutory rape is flawed, but this does not serve as adequate justification for child marriage.
The flaw in the law on statutory rape must be seen as a flaw and not a loophole to justify child marriage, which is likely the root cause of most economic problems.
Sadly, this is also the mentality of the law makers in Sri Lanka who permit an exception on statutory rape only for females above the age of 12 years who are married under the Muslim Marriage and Divorce Act.
While it is clear that the law on rape has many identifiable flaws, the politicians have been groping in the dark, sometimes recommending atrocious ideas such as to marry the rapist. Others have even blamed the victim for the act of rape. This article tends to highlight only the issues pertaining to the limited definition of rape and statutory rape, while the very law on rape involves many other issues, such as, marital rape and custodial rape.
The fact that the law requires no evidence of resistance such as physical injuries or marks in the body makes it extremely difficult for the accused to prove his innocence. The case of Kamal Addarachchi v Inoka Gallage is evidence of this technical difficulty in the application of the law. The standard of proof relies heavily on the claims and testimonies of witnesses and the alleged victim herself. It is mandatory to study the areas of concern and introduce a more apt legal framework to quell the issues relating to rape as promptly as possible.
(The writer is a law tutor and an independent researcher of laws. He holds a postgraduate degree in the field of human rights and democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom.)
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