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Rape Convictions and Sri Lanka: The Judicial Wall People Need to Climb

24 July 2018 Posted by No Comment

Tuesday, 24th July 2018

By Sajani Ramanayake

In 2001, Jesudasan Rita a 17-year-old schoolchild was abducted by two men and raped in Sri Lanka’s Central Province. The rapists held Rita for four hours in their vehicle and then dumped her in an isolated area.

The case was heard by nine High Court judges while the prosecution was led by 10 state counsels and more than 20 lawyers, from Caritas Kandy (SETIK) and also from the Kandy Diocese’s human rights office, who appeared on behalf of the victim,” said Father Manatunga, who heads the Kandy Human Rights office, in a piece done by UCA News.

This article looks at the fact that this case took 14 years to get a conviction, and explores why there are so many delays and why so many women choose not to report incidents of rape.

RAPE IN SRI LANKA: LAWS AND STATISTICS 

Rape is defined by the WHO as “physically forced or otherwise coerced penetration – even if slight – of the vulva or anus, using a penis, other body parts or an object”. Legally however, this definition may vary from country to country.

The laws surrounding rape in Sri Lanka are governed by the Penal Code of Sri Lanka as it is a criminal offence.

Article 363 of the Penal Code of Sri Lanka defines rape as sexual intercourse with a woman in five specific scenarios:

(1) Sexual intercourse without consent;

(2) Sexual intercourse even with consent where the woman is in lawful or unlawful detention or where consent is obtained through intimidation, threat, or force;

(3) Sexual intercourse where consent has been obtained when the woman is of unsound mind or in a state of intoxication administered to her by the man or some other person;

(4) Sexual intercourse where the woman has consented because she believes she is married to the man;

(5) sexual intercourse with or without consent if the woman is under 16 years of age unless the woman is the accused man’s wife, she is over 12 years of age, and she is not judicially separated from the accused.

There have been gaps identified and critiques made of the law in this regard. For example, as bakamoono.lk explains:

  • The law limits the definition of rape to penile-vaginal penetration (penis entering the vagina). This excludes anal rape, digital penetration (with a finger), penetration with any other part of the body (i.e. – tongue), forced oral sex, or even when foreign objects (such as steel rods like in the 2012 Delhi Gang Rape) or dildos are used.
  • If a man is raped (anally or otherwise) is not considered rape under the Penal Code. The provisions of statutory rape do not apply to boys under the Age of 16.
  • Same sex rape does not fall within the legal definition.
  • Marital rape is not considered a crime in Sri Lanka, unless a judge has ordered spousal separation.
  • Third party threats are not considered(When the victim is threatened with harm to a third party, such as a child or loved one)
  • The provision on intoxication does not apply if the woman took the alcohol herself.(For the law to apply it must be administered to her by the perpetrator or a third party)

However, it must also be noted that apart from marital rape – all other forms mentioned above are classified as Grave Sexual Offences that carry the same punishment as is given for rape – i.e. it may vary depending on each case with the minimum sentence being 7 years and the maximum being 20 years.

The statistics of recorded cases in 2017 can been seen below – as reported by police.lk in their Grave Crimes Abstract report

CONVICTION: ARE DELAYS IN TAKING CASES FORWARD THE NORM?

So, we have the law, statistics tell us cases are reported – this must mean convictions. Perhaps one could argue that case referred to earlier that took 14 years is an anomaly? It seems not.

Often it can take up to 14 years to convict rapists in Sri Lanka.  The two stage process (summary and non-summary procedure) and long delays at the inquiry stage mean that victims have to wait several years before obtaining justice. Often by the time the matter is taken up in appeal, several years (often over a decade) has past. These delays while common to most aspects of the justice system, have a particularly harsh impact on the lives of rape and sexual violence survivors.

We spoke to an Attorney-at-Law working extensively on the area who stated that the treatment of victims/survivors, by all actors in the justice system, from police investigators, to medical personnel, prosecutors, defense lawyers, judiciary, and court staff, often lacks even a rudimentary nod towards victim centeredness and ensuring that victims are treated with fairness and dignity.

Many victims have complained of difficulties in getting their complaints recorded by the police. There are lengthy delays in obtaining the most basic forensic records including DNA, government analyst reports, and analysis of electronic data such as CCTV footage where relevant.

In Court, victims are often forced to recount their stories in open court and subjected to lengthy cross-examination by defense counsel, often for several hours at a stretch. Prosecutors (the Attorney General’ Department), have on several occasions, failed to protect victims in Court. The AG’s department is also responsible for a critical bottle-neck in the criminal justice system, where there is often a gap/backlog of several years between a case being referred to the AG (after the Magistrate’s Court stage is over) and charges being framed in the High Court. While the AG routinely cites the lack of resources and staff for this delay, the gap of several years without any information on the fate or outcome of their case has a devastating impact on individual victims. The situation is exacerbated by an unwritten policy followed by the AG’s dept., not to consult or deal directly with the victim at any stage of the judicial proceeding.

Systemic delays and the failure to treat victims with humanity and dignity coupled with a lack of family or other support are some of the main reasons victims fail to report crimes of rape and sexual violence. Stigma, shame and the fear of reprisals also plays a key role in determining victim’s access to justice and redress.

While delays are systemic in the justice system, the issue is exacerbated by a lack of resources.    Elaborating on this, Gehan Gunatilleke (Attorney at Law, and Research Director at Verité Research) explained that the Attorney General’s Department not only acts as the chief prosecutorial institution in the country, but also as the chief legal adviser to the government, and the main representative of the state. These multiple roles limit its capacity and resources in terms of expeditiously prosecuting cases. This problem is worsened by the fact that other actors involved in prosecution, such as the Police Department and Judicial Medical Officers also face resource constraints. For instance until very recently Gene Tech, a private company, was responsible for all DNA analysis including for rape and sexual violence. This predicament results in a large backlog, and most cases tend to fall behind unless they are high profile, or if there is political pressure pushing for the conclusion of the case.

Another problem noted by Gunatilleke is that there is a lack of systematic coordination and communication between the institutions involved, and the victims. In most cases, the victims tend to be uninformed about the status of their cases until it goes to court or until there are major developments. The lack of systematic coordination between the institutions, for example between the Police, Government Analyst and the Judicial Medical Officer can also cause delays, as there is no central repository of information that can be accessed by these institutions to obtain information about each other’s progress.

GATHERING OF EVIDENCE: GAPS

Issues in evidence collection was also highlighted  with  UCA news describing incidents of police failing to correctly collect and store evidence, such as not sealing the clothes of either the victim or the accused. This weakens the victim’s case as this evidence very easily dismissed in a court of law.

Many victims do not report their experiences immediately (due to fear, trauma, lack of information etc.), and this can prove to be a problem because while it is not specifically asked for in the law, physical evidence is often considered by the judges as a key factor. This is also compounded by the fact that the body itself is where the evidence is collected from, and we see that delays in being examined can cause evidence to deteriorate and become unusable in a court of law.

THE VICTIMIZATION OF VICTIMS BY THE SYSTEM

While delays through the system and poor handling and gathering of evidence and large stumbling blocks in ensuring that rapists are convicted, one of the largest and most pressing issues that must be addressed is the re-victimization of victims and their unwillingness to report the crime.

The reasons for this is many – with one of the most pressing being the delays discussed previously that cause cases to be dragged on for many years with much emotional trauma for the victim.

Many women choose not to report when they are raped, and this is for many reasons, one of which is due to the many delays these delays mean that these women have to drag this experience on for several years which can take a toll on them emotionally.

Another reason that women choose not to report is due to the social stigma that exists within society regarding rape.  The culture of victim blaming discourages women from reporting because it to an extent invalidates their experience because it boils down to ‘It’s your fault, it’s because of how you were behaving/dressed’. A clear example of this is when Minister Amaratunga said Women should be careful when walking alone.

The lawyer also spoke about the concept of consent existing in a “bubble”, meaning that it is always expected to be neat and straightforward issue, but that isn’t always the case. The focus on consent places the victim (as opposed to the perpetrator) as the central figure in the trial. Victim’s narratives are traditionally disbelieved often due to the presence of dangerous rape myths and stereotypes. While corroboration is not technically necessary to obtain a conviction for rape, the justice system is replete with examples of appellate court judges who have overturned high court convictions on the basis that the woman’s account of the rape was improbable or highly unlikely. Bear in mind these are convictions being overturned by the court of appeal, roughly a decade after the incident of rape.

The issue of suspended sentences for rape is also an issue, with many accused getting their sentences reduced or suspended even in cases where the courts accept that the crime was a heinous one.

WHAT NEEDS TO CHANGE?

In terms of incentivizing women to report rape we see that two main things need to be addressed:

1. Social stigma and rape culture: The main ways in which this can be done as is by teaching children the concept of consent. Thus must be done at a grass root level in order to tackle the problem at its root.  It can also be done by being mindful of, and avoiding victim blaming. It is important to understand that just because a women consented to some sexual acts does not mean that she consented to them all, and she does reserve the right to withdraw her consent. Don’t be a bystander, don’t hesitate to call out sexist jokes or language that perpetuates rape culture.

2. The functionality of the institutions involved: In terms of the functionality of state institutions, Gunatilleke argues that one of the ways to solve the problem of the diversion of attention from rape cases is a structural reform within the AG’s Department. The roles of prosecutor, government advisor, and state representative should be allocated to different institutions, instead of handled by one institution, This, along with creating and implementing ways to improve systematic coordination between institutions, may help to reduce delays in the legal system, which may prove to be an incentive for women to report.

This can be overcome by making the situation more victim friendly, by making female JMOs more accessible when needed.

WHY IS REPORTING IMPORTANT?

While most women, particularly adolescents, believe that what happened was just a one off experience that the rapist will not do again, we see that that if most often not the case, we see that this behavior is likely to be continued if not punished accordingly. Therefore we see that we must do everything possible to make the process of reporting and going through a court case as easy as possible for this women that have already gone through so much trauma and deserve justice.

Read more about the rights you have as a victim of a crime: Section 3 of the Victims and Witness Protection Act

For more information on rape, rape statistics, facts, myths and more please go here

(Sajani Ramanayake is an intern at bakamoono.lk, planning to sit her A-Levels next June. She also works with ‘Project Voice+’ which is a feminist, youth run NGO, focusing primarily on gender and sexuality)

Courtesy bakamoono.lk

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