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sex The whole thing got out of control when the proposal was misinterpreted, Justice Minister John Seneviratne told The Sunday Times. The proposal was only put forward in response to the insistence of judicial officers and other interested parties who were concerned with the injustice brought about to the boy in such cases where there’s mutually consensual sex between two minors, he explained. All this proposal hoped to achieve was to transfer the sole power of prosecution from the hands of the police to those of the Attorney General, so that he could use his discretion in such cases, the minister said. Earlier in the week, clarifications were issued by the Justice Ministry that the proposal was not about reducing the age of sexual consent for girls but that it merely sought to broaden the scope of justice in the current law on statutory rape. But the storm did not abate. Section 363 (e) of the Penal Code states that the consent of the girl is not a defence to a charge of rape when she is below 16 years of age. Such an act is statutory rape. The age of the male party is not taken into consideration. The new proposal came about in response to petitions to the Ministry of Justice from concerned parties who pointed out that when the offender (the boy) is a minor and the act takes place with the consent of the girl, the subsequent prosecution of the boy does not always serve his best interests or that of justice. The
primary purpose Even where there has been consent of the girl, only the action of the boy attracts culpability. He alone becomes the criminal; the penalty being imprisonment for a term less than ten years, as he is a minor. The welfare of the boy should receive as much attention as the welfare of the girl. Therefore, this proposal is aimed at serving the best interests of both parties involved, Ms. Wijayatilake said. She said it had been brought to the Ministry’s notice that in many instances, minors involved in statutory rape had been forcibly married off after faking their ages (as the legal age for marriage is 18) to avoid culpability. Therefore, this proposal should help resolve such circumstances as well.“The issue is adolescent consensual sex, which cannot be condoned under any circumstances. However, the concern is whether the present remedy of criminalizing the act of the boy alone and thereby making only him liable to a criminal prosecution and punishment, is the appropriate answer,” Ms. Wijayatilake said. “Therefore, the Justice Ministry proposed that the sanction of the Attorney General should be obtained for a prosecution in a statutory rape case and that this sanction will be granted only if the AG is of the opinion that a prosecution would serve the best interest of justice. This will enable the Attorney General to use his discretion on a case by case basis,” she said adding that such a measure would “not” amount to de-criminalizing rape. Moral
problem “Just because society fails to do its job, it doesn’t become the responsibility of the legal system. We simply want to ensure that all parties are treated equally,” Ms. Wijayatilake said. While confusion prevailed among the general public about the proposal, The Sunday Times asked leading lawyers and experts in the field of child rights for their views. Giving an insight into the law itself, International Centre for Ethnic Studies (ICES) chairperson, Dr. Radhika Coomaraswamy, who is also UN Special Rapporteur for Violence Against Women said the main purpose behind the law on statutory rape was to protect the vulnerability and health of the underaged girl. “Therefore, it’s essential that the law on statutory rape be kept intact and the ages stipulated therein remain untouched,” she said. However, with regard to concerns brought up in relation to a perpetrator who is also a child, the authorities should bring in an amendment to the law, enabling the Attorney General or the magistrate to either consider lessening the sentence or even to decide on the need for prosecution, she said. Bringing in a different perspective, leading criminal and fundamental rights lawyer Saliya Peiris said he believed that the existing law regarding statutory rape took away the discretion of the judge. “Generalising the law in this way takes away the ability of the judge to make a decision on his own. So I feel that the court should be given the discretion to decide on a sentence on a case by case basis,” he said. Mr. Peiris said he felt that the age factor played a big role in statutory rape cases. “The difference between the repercussions of being over and under 18 is huge, especially when it comes to the boy. This is not fair. For instance if a girl of about 15 years and eight months and a boy of about 17 years have been in an affair and sexual intercourse takes place with consent from both parties, it is not just for only the boy to be penalized. “There
are so many instances where the boy is lured or seduced by the girl,
making it unfair for just the boy to serve the sentence. The consequences
of sexual intercourse, such as pregnancy, are indeed greater for
the girl, but this does not make it alright for a boy to be sentenced
for ten years,” he said. He said many lawyers had observed that law and judicial officers, although they knew the sexual act had taken place with mutual consent, find that their hands were tied, in the face of the partial implications of the law on statutory rape. National Child Protection Authority chairperson Dr. Hiranthi Wijemanne questioned the ability of a 13-year-old child to define “consent”. “Being of an age where both girls and boys are quite clueless on the subject of sex, they are obviously incapable of understanding and coping with the implications of the act,” she said. Dr.
Wijemanne said she believed reducing the age of consent to 13 was
“absurd” as it was impractical to apply such a regulation
in general. “Different areas of the country face varied levels
of the problem of adolescent sex.” “From a medical point of view, there is a chance that the rate of maternal mortality and morbidity may increase due to the age factor. While it’s extremely difficult for a girl below the age 18 to physically cope with pregnancy itself, it could have many more repercussions as well,” she said, adding that maternal morbidity dealt with illnesses or disability occurring as a result of or in relation to pregnancy and childbirth. Dr. Sriyani Basnayake, former director of the Family Planning Association, too agreed with the view that a 13-year-old was not mature enough to give consent to sex. “There are numerous implications and consequences of sex, obviously pregnancy being the main one, and these have to be taken into serious consideration, before such a decision is made,” she said. “With Sri Lankan culture not being so permissive, the girl child faces most of the challenges that come with the consequences of a sexual union, such as being disowned by her family and society, as well as the risk of pregnancy,” she said. Asked whether adolescent sex was on the rise, Dr. Basnayake said she had noticed an increase in interest in sexual matters, among children. “I have been conducting seminars on sex education for children in schools in Colombo over a long period of time. In the more recent ones, from the questions asked by the children, it is quite obvious that a large number of teenagers are indeed indulging in sexual intercourse,” she said. Sociology Professor S. T. Hettige also said a 13-year-old child was far too young to give consent to the sexual act. “A person is basically considered an adult based on the fact that he or she is able to make rational decisions (legally), on their own. So if a child is not allowed to make decisions regarding everything else, why is it that they are allowed to make decisions when it comes to an issue like consent for sex? There is an obvious contradiction here,” he said. The professor said the age of consent should be tied up with a lot more considerations such as pregnancy. “With the rest of the world trying to fight the problem of teenage pregnancy, we too should focus on this issue, especially coming from our socio-cultural situation,” he said. R. I. T. Alles, chairman of Gateway and founder principal of D.S. Senanayake College said the proposal could easily be misinterpreted as permission for sex. “As a principal of a school, I’m not at all in favour of it,” he said. “We could be playing with fire if this proposal becomes law.” |
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