Opinion
Proposed Penal Code amendment and threat of promotion of sexual abuse of children – VIII
by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development
(Part VII of this article appeared in The Island of 20 June 2023)
Although there is no public annoyance, under S. 63 (j) of the Police Ordinance any Police officer has the power to arrest without a warrant ‘any person who wilfully and indecently exposes his person or any offensive deformity or disease’ in any street or road, thoroughfare or passage within the limits of any town, if the offence was committed within his view.
However, if S. 365 and S. 365A are repealed as proposed in the Bill, there will be no legal bar whatsoever for any groups to display their sexual orientation in public without directly engaging in a sexual act.
S. 365A of the Penal Code dealt not only with persons committing acts of gross indecency, but also with any person who procures or attempts to precure the commission by any person, of an act of gross indecency with another person. With the repeal of S. 365A, procuration of a child above 16 years of age to another person for commission of an act of carnal intercourse against the order nature or gross indecency or grave sexual abuse will no longer be an offence.
Tourism can be promoted with children, both male and female, above the age of 16 years procured for engaging in sexual acts with foreign tourists, without any fear of being prosecuted.
LGBT persons will be able to openly display their sexual orientation by engaging in acts preliminary to having carnal intercourse. For instance, two men or two women can publicly embrace each other intimately, touching their bodies and kissing each other. It may not cause any public annoyance, according to the proposed law. Other than the LGBT groups, there may be others who are dreaming of western moral values on Sri Lankan society appreciating.
Though there is no legal bar, it will certainly have a pernicious influence on children on the younger generation causing, an irreparable harm.
Inevitable Consequences of the Passage of the Bill – Promotion of Sexual Abuse of Children and Youth
Let us see what will be the plight of children and youth of this country if this Bill is passed by Parliament:
When S. 365 of the Penal Code dealing with the offence of carnal intercourse against the order of nature (anal sex and oral sex) with any man or woman and S. 365A dealing with the offence of gross indecency (acts of same-sex of men and women both) are repealed, making these sexual activities no longer offences punishable under the law, it will result in the removal of protection afforded to children by these two Sections against sexual abuse in respect of these offences.
The ASG had submitted to Court that no lacuna in law will be caused by the amendments proposed in the Bill, as S. 365B of the Penal Code dealing with the offence of grave sexual abuse will provide adequate protection to the children against sexual abuse.
On an analysis of S. 365B, it clearly shows that S. 365B will not provide any protection to children in the most vulnerable age group against sexual abuse.
Grave sexual abuse dealt with by S. 365B is an act committed by any person, for sexual gratification, using his genitals or any other part of the human body or any instrument on any orifice or part of the body of any other person, being an act which does not amount to rape under S. 363 of the Penal Code.
Unlike in the case of carnal intercourse against the order of nature and gross indecency, in grave sexual abuse the act itself is not an offence.
It becomes an offence only where it is committed (a) with or without consent on a person under 16 years of age; or (b) without consent of the person; or (c) with the consent of the person obtained while such other person was (i) in lawful or unlawful detention, or (ii) by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt; (iii) with the consent obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.
This section provides protection against sexual abuse only to children under 16 years of age. What is the protection available for children in the age group of 16 – 18? Any person can commit any of the sexual acts mentioned in S. 365B – anal sex, oral sex, fingering, homosexual acts – with any child over 16 years of age with the consent of the child.
Under the Convention of the Rights of the Child (CRC) ratified by Sri Lanka in 1991, every person under 18 years of age is a child entitled to all the rights guaranteed by the Convention including the right to protection from sexual abuse. The Penal Code (Amendment) Act No. 22 of 1995 and the Penal Code (Amendment) Act No. 16 of 2006 provide protection to all children under 18 years of age against abuse sexual or otherwise in respect of most of the offences dealt with by them: – S. 286A – Using children for obscene or indecent publications or shows; S. 286B – Duty of a person providing computer services to prevent sexual abuse of a child; S. 286C – Duty to inform use of premises for child abuse; S. 308A – Cruelty to children; S. 360B – Sexual exploitation of children; S. 360C – Trafficking of children; S. 360E – Soliciting a child. In all these sections the word ‘child’ is defined to mean a person under 18 years of age.
The International Convention on Civil and Political Rights (ICCPR) Act No. 57 of 2007, while recognising a person under 18 years of age as a child, by S.5(1)© has guaranteed the rights of every such child to be protected from abuse.
If any person commits an act of grave sexual abuse with a person over 16 years of age with consent obtained by adopting any of the methods mentioned in the Section such as use of force, intimidation, or threats or while in a state of intoxication, then it becomes an offence punishable under the law.
What is the position if consent is obtained through deceit or offering some benefits or presents or some promises? There are numerous other ways to obtain the consent of children and youth, inexperienced in life, for committing sexual acts with them such as developing a close friendship, or offering some presents like a mobile phone or offer of a foreign trip or other deceitful conduct. Then it will not be an offence punishable under S. 365B.
S. 365B will not provide any protection to children belonging to the age group of 16 to 18 years and they will be left without any protection and open to abuse.
Who are these children belonging to the age group of 16 to 18 years? They are mostly children studying in O Level and Advanced Level Classes in schools. In any given year there are more than 500,000 thousand students studying in these classes. They belong to the most vulnerable age group, amenable to the influence of social and other media promoting this type of conduct. All this time these activities remained grave crimes, punishable with deterrent penalties. When this Bill becomes law, when these activities are decriminalised, as persons over 16 years of age they will be able to openly and freely discuss about these things and freely engage in any of these activities of their choice.
Within a few years of the passage of the Bill, it will be almost impossible to maintain discipline in schools and other higher education institutes. It is no secret that homosexual connections are observed to certain extent among students in hostels in schools and universities. At present it is frowned upon as conduct illegal and unacceptable. When homosexuality is legalised, one can see the number of human rights violation applications coming before the Human Rights Commission of Sri Lanka against the hostel Wardens and heads of institutions who try to maintain discipline in them.
It will certainly result in two or three-fold increase in the number of complaints of sexual abuse of children which remains continuously increasing over the years.
It will result in the destruction of moral, cultural and ethical base of our society.
Duty and Responsibility of Parliament to Protect the Rights of all Children
Even Sanjaya Jayawardana, PC, appearing for the proponent of the Bill MP Dolawatta admitted in his submissions that even if the Court was of the view that repealing S. 365A would encourage persons of whatever sexual orientation to behave in an indecent manner in public and whether such conduct is, in the view of the Court, morally repugnant and against the social and cultural ethic of this country, that would not be a matter for the Court but one that is entirely left to the Legislature.
The Supreme Court has expressed its opinion on this matter in the Determination on the Bill in these terms: ‘‘That does not mean that men or women or transgender persons can frequent public places in a manner that creates a nuisance to others using such public places, or that they can engage in any other illegal acts or behave in a manner that affects the rights, health or property of others. However, we must reiterate that it is a matter that comes within the legislative policy of the State which shall be guided by the provisions of Art. 75 and 27. It is a matter that comes within the legislative power of the people which shall be exercised by Parliament in trust for the People.’’
Under Article 75, the Parliament has the power to enact or repeal any law; In enacting laws the Parliament is exercising the legislative power of the people in trust for the People. Article 27 contains the Directive Principles of State Policy that shall guide the Parliament in the enactment of laws. In the enactment of this Bill the Parliament should be guided by the Directive Principles in Article 27 (12) and (13): 27(12) The State shall recognize and protect the family as the basic unit of society. 27(13) – The State shall promote with special care the interests of children and youth, so as to ensure their full development physical, mental, moral, religious and social and to protect them from exploitation and discrimination.
Instead of promoting with special care the interests of children and youth, this Bill has the effect of jeopardising the interests of children and youth exposing them to sexual abuse and retarding their physical, mental, moral, religious and social development.
Every Member of Parliament must understand that it is their duty and responsibility to exercise their legislative power entrusted to them by the People with due diligence in the best interests of the people and the country, protecting and promoting the rights of vulnerable groups like women and children, without carrying out foreign agendas and being moved away by slogans.
(Concluded)
Three matters concerning universities. The eminent botanist Dr. Upatissa Pethiyagoda asked (17/12) why there were Bachelor of Arts degrees and no Spinsters …. degrees. When universities were first founded in medieval times, the intelligentsia was almost entirely churchmen: priests, friars and monks. There were no women in the clergy. Churchmen held power in studium generale which about the 15th century came to be called universities.
Universities governed themselves, a common feature of many organisations in medieval Europe, where authority was fragmented. (The seeds of present claims for autonomy in universities, bolstered by new and other powerful factors, lay there.) Although graduates from the Arts Faculty comprised the overwhelming majority in universities, and the arts faculty was fons et origo ceteris (source and origin of all others), graduates of the Faculty of Theology controlled universities. For centuries to come this practice continued. The church and, more recently, laymen who governed universities, did not permit the admission of women to universities. In Dr. Pethiyagoda’s university in the UK, women were formally admitted to degrees only in 1948! In Oxford, women had been admitted in 1920-21. That explains why there are no “Spinster graduates”, even though, in some universities, women comprise the majority that graduates. However, change has been rapid since then. The present vice-chancellor of Cambridge University is a woman. The Master of Trinity Hall, one of the smaller but older colleges in that university, is a woman who was an academic in the US, previously.
Then it was asked whether LSE could offer a degree (in The Island, on the same day). LSE cannot, because it is not a university but only a School at the University of London, like the Imperial College of Science and Technology, King’s College or SOAS. Similarly, one cannot get a degree from the Harvard Business School. The model of the University of London was copied in India, when the British established universities there in 1857, the year of the mutiny. (Ramachandran Guha once remarked that two mutinies began in 1857; the other being the establishment of universities whose alumni were a force in pushing the British out of India.) As a result, Delhi University or Calcutta University has large numbers of colleges, where standards of teaching vary widely. The University of Bangalore is reputed to have hundreds of affiliated colleges.
Professor Jan-Melissa Schramm became Vice- Master of trinity hall on 1 april 2023 after filling the role of acting Vice-Master during Lent term 2023. She is Professor of Literature and Law in the english Faculty, Director of Studies in english at trinity hall, and was Deputy Director at CRaSSh between 2017 and 2020. (From Trinity Hall official website)
P. A. Samaraweera, philosophiae doctor, (20/12/24) insists on calling a university degree a title: ‘…(PD) is incorrect in his analysis of a Ph.D. as a title’. Well, of course, Alice (in Wonderland) retorted, ‘I mean what I say’ and Dr. Samaraweeera may assert that same privilege. But korala, muhandiram, maha mudali, professor, archdeacon and judge are titles, not university degrees. B.A., D.Phil., and D.Litt. are degrees and not titles. His appellation ‘Dr.’ is not a title, whereas he may hold the title ’professor’. I went back to history to explain what it is, not what the future should be. He might find it difficult to explain why he, a chemist (say) holds a degree ‘doctor of philosophy’, having never, even in school, studied philosophy. The explanation is in the history of universities. Well into the 21st century, President Emmanuel Macron, a few months ago, opened the University of Paris-Saclay and it will have deans, provosts, and other office holders whose titles derive from the University of Paris which started about 1210 CE. Robert Grosseteste, Bishop of Lincoln, Chancellor of Oxford, in the 14th century, had he miraculously been transported to the occasion, may have found the entire setup familiar as he was ‘a French poet, an agriculturist, a lawyer, a physician, and a preacher; ….’ ( Rashdall, Vol.III p.241). He may even have understood the proceedings. Modern universities follow procedures adopted in old Europe: wear your cappa (degree gown and cap) and compare those vestments with what a Catholic priest, a bishop or the pope wears. Need I say more?
Philosophiae Doctor
“The goal of education is not to increase the amount of knowledge but to create the possibilities for a child to invent and discover”
– Jean Piaget
“[They] are confined for four or five years in small cages, being kept in the dark and not allowed to set foot on the ground”. One might wonder whether the foregoing sentence is one which is meant to serve as a metaphorical description of the joyless life of most of our primary-level students, who are regimented for two to three years to face the Year 5 Scholarship exam. Well, no.
It doesn’t have the remotest connection to modern-day exams or an education system unwittingly designed to drain childhood of its inherent pleasures. It refers to a custom, a ‘persecution’ ingrained in primeval cultures, the remnants of which may still be found in many societies including ours. The quote is from a well-known book on anthropology, “The Golden Bough: A study in magic and religion” written by Sir James Frazer. The sentence describes a widespread taboo in primitive societies, which resulted in the “seclusion of girls at puberty”. However, it is a pity that today, one is likely to see in it, at least a faint reference to the otherwise happiest period of our youngest citizens, who are pressured to prepare for an exam, which is superimposed, for reasons unrelated to the goals of education, per se. Rather, it is designed to make tens of thousands of underprivileged children work harder than they reasonably can, because the successive governments have not been able to provide the required infrastructure facilities to their schools to enable them to continue studies till they enter the tertiary level. In other words, the well-known exam is an instance of making our children sacrifice their childhood till the rulers, if they ever will, set right the larger economic wrongs.
Whereas, in ancient times, young girls were made to carry the burden of superstition and patriarchy, today young children of all sexes are forced to pay the price for political and economic bungling. Ultimately, a problem resulting from lack of opportunities for many, is upgraded and embellished as ‘providing opportunities’ for the few ‘smart’. And, its grand title is Year 5 Scholarship Exam. What we conveniently forget is that this ‘exam’ is a wrong medicine produced to compensate for political quackery, which justifies the continuation of substandard education for the ‘condemned’ majority. It seems that the onward march of human progress, while doing away with cultural wrongs, is shy of getting rid of economic wrongs. A local saying seems apt here – one may say that the Year 5 scholarship exam has been serving as a metaphor for an annually produced loincloth expected to cure politically induced child-diarrhea.
The reported leaking of three questions from the Grade 5 scholarship exam held this year and the reports of such incidents in the past show its undesirable influence on the children, parents and other vested interests. At least, it has raised an unhealthy spirit of competition considerably removing the sense of joy which should be an essential part of these children’s learning experience. This is particularly relevant because the exam has drawn both students and their parents into a prolonged spell of obsession, which has severely undermined the importance of leisure and fun that should be part and parcel of a wholesome childhood. The prolonged fixation on the exam results tied to their ‘future success’ robs these fledgling scholars of the joys of ‘free learning’, which should otherwise give them that vital sense of adventure and excitement in gaining new knowledge. Bertrand Russell’s quote, “There is much pleasure to be gained from useless knowledge”, which refers to the unplanned learning pursuits that may enhance the quality of life of adults, may not be totally irrelevant in any discussion on child education.
As history and anthropology bear evidence, children have always been defenceless against many of those well-meaning programmes imposed on them by adults. It is a pity that today the parental ambitions triggered by social forces, have invaded and highjacked the childhood of our clueless kids. Particularly vulnerable are those underprivileged children who form the majority. Whereas the children of privileged families enjoy the freedom of engaging in many leisure pursuits while receiving their primary level education without undue stress, a large number of children belonging to the lower strata of society are grievously saddled with the scholarship exam to the exclusion of all fun and recreation.
As Ms. Ruth Surenthiraraj highlights in her article titled, “A case for the non-essential” (Kuppi Talk) published in The Island of December 10, “…entertainment, leisure, or the space to create is often perceived as being directly and positively correlated to being able to afford either the time or the resources to enjoy it”. This is a valid critique of a smug social attitude, which tends to give credence to the warped idea that the underprivileged in society may ‘prudently’ forget about entertainment. Reducing childhood to a strenuous struggle for future success is sad. And, any programme relating to education or otherwise, which, directly or indirectly, helps consolidate the idea that deprived children may ‘wisely’ shun any entertainment ‘for their own good’ can be nothing short of catastrophic.
Susantha Hewa
Rekindling Faith, Peace, and Love Below…!
(Practical Tips for Christmas Bliss)
by Rev. Fr. (Dr.) Eymard Fernando
Bishop’s House, Kurunegala.
In an increasingly and incredibly materialised and commercialised world today, the core meaning of Christmas often seems distorted, being overshadowed by consumerism, bustling sales, and extravagant festivities. Yet, at its heart, Christmas is a season meant for reflection, change, love, and unity – a time when people gather to celebrate gratitude and generosity centred around the Divine Baby. As we explore the roots of Christmas and what it can mean for us in today’s world, we uncover themes of faith, hope, peace, and kindness that transcend religious boundaries, reminding us of the true purpose and value of God becoming man.
Therefore, let us delve a little into the origins and deeper significance of Christmas, exploring ways to return to these roots through themes of generosity, togetherness, and humility. By rediscovering these essential values, we can certainly celebrate Christmas as a season that brings light and life to our world.
A Season of Faith and Reflection
Christmas has its origins in the Birth of Jesus Christ, a moment celebrated by Christians as the arrival of hope and salvation. However, even beyond its religious significance, Christmas season has become a time when many reflect on themes of love, hope, and renewal. The story of the Nativity conveys universal values: humility, peace, and the power of hope.
The Birth of Jesus in a humble manger represents a profound lesson about simplicity and compassion. As theologian Henri Nouwen noted, “Jesus was born in the least expected place to the least expected people in the least expected way.” This simplicity, intertwined with humility, challenges the commercialised image of Christmas today. Instead of focusing on luxury and excess, the roots of Christmas invite us to value the simple, meaningful aspects of life: faith, family, and fraternity.
In today’s world, we can return to these roots by setting aside time for personal reflection during Christmas. Practising gratitude, being mindful of those less fortunate, and reaching out to loved ones are all different ways we can honour the spiritual foundation of Christmas. Thus, we all can benefit from a moment of stillness and introspection during this busy time of the year.
The Spirit of Generosity and Compassion
Christmas has always been a season of sharing, inspired by the gifts of the Magi to the Christ- Child and later, Saint Nicholas’ acts of charity as santa claus. However, the tradition of sharing has gradually shifted from simple acts of kindness to an intense focus on material gifts. According to American sociologist Juliet Schor, “We give to show love, but in a culture that equates love with spending, our giving has been commercialized.”
However, in recent years, a shift towards alternative, meaningful sharing has gained momentum in the form of a worthy ‘retromarch’. Many individuals and families now choose to give to charity in a loved one’s name or to offer experiences rather than material goods. This form of sharing very much aligns with the true spirit of Christmas, embodying generosity without extravagance.
Likewise, local initiatives, such as community food drives and clothing and toy collections, have become popular ways to give back. Participating in these efforts allows people to connect with others in their communities, creating a shared sense of purpose and compassion. As Mother Teresa famously said, “It’s not how much we give, but how much love we put into giving.” By focusing mainly on the intention behind our gifts, we can bring the spirit of Christmas alive in our own hearts and communities. However, the magic of Christmas is not very much in presents and parties, but in His Presence!
Family and Togetherness: A Time for Connection
The Christmas season is often one of the few times in the year when families come together, setting aside time to reconnect, reflect, and celebrate. This emphasis on togetherness is deeply rooted in the season’s traditions, dating back to ancient winter solstice festivals where communities gathered to share warmth and light during the darkest days of the year.
In modern times, when families may be dispersed across cities or even continents, Christmas remains a crucial opportunity to reconnect. This communal emphasis shows how Christmas, regardless of religious affiliations, has become a unifying tradition centred on family.
Simple traditions – like sharing a meal, decorating a Christmas tree, or singing carols together – allow families to pause, connect, and create memories. These rituals not only strengthen family bonds but also convey the essence of Christmas for younger generations. As American author Richard Paul Evans, best known for his inspirational and heartfelt novels says, “The smells, tastes, and sounds of Christmas are the roots that nurture a family tree.” By focusing on togetherness, Christmas serves as a reminder of the love and connection that sustain us all throughout the New Year.
Peace on Earth: Seeking Unity in This Divided World
One of the most significant messages of Christmas is the call for ‘Peace on Earth’. Yet, today’s world is marked by political, social, cultural, economic and various other divisions, making the pursuit of peace and unity more relevant than ever before. From the hymn ‘Silent Night’ to the angels’ proclamation of peace, Christmas has long symbolized hope in times of conflict.
A poignant historical example of Christmas promoting peace is the Christmas Truce of 1914, during World War I. British and German soldiers, entrenched on the Western Front, laid down their arms on Christmas Eve to exchange greetings, sing carols, and share small gifts. This unexpected truce, though brief, reminded soldiers of their shared humanity amidst the horrors of war. It symbolised the power of Christmas to transcend differences and bring people together, even during a time of darkness and death.
Today, peace-oriented traditions continue to play an important role during Christmas season. Interfaith gatherings, community meals, and charitable events all serve as spaces for people from different backgrounds to connect and understand one another. In a world often divided by ideological and political differences, Christmas can become a season with a reason for open dialogue, compassion, and understanding. Embracing Christmas’ call for peace and unity allows us to honour its roots in ways that resonate with our global context.
Practising Simplicity and Mindfulness
While Christmas has grown as a metaphor for lavish celebrations and enchanting tamashas, the season’s roots actually encourage simplicity and mindfulness. The traditional story of Jesus’ Birth in a manger speaks to a humble beginning, one that invites us to cherish what truly matters in life. Embracing that simplicity allows us shift our focus from material abundance to the richness of shared experiences.
In recent years, minimalism and mindfulness have gained popularity as antidotes to the consumer-driven spendthrift lifestyle with a ‘shop till you drop’ psychosis. Many people now opt for simpler, handmade gifts or choose to forgo elaborate decorations in favour of natural elements. These preferred choices reflect a desire to connect more authentically with the true meaning of Christmas. Instead of flashy lights or mountains of gifts, families can create meaningful memories through acts of kindness or spending quality time together strengthening family ties. One modern example for this is the ‘Reverse Advent Calendar’ tradition. Instead of receiving a treat each day, participants place an item – such as dry rations or clothing – in a box to donate to those in need. This practice helps to instil gratitude and generosity, shifting the focus from consumption to community service. By embracing a simpler and more mindful and meaningful approach, we honour the humble roots of Christmas and foster a deeper sense of appreciation for life’s countless blessings.
A Journey of Rediscovering…
Returning to the roots of Christmas is a journey of rediscovering faith, kindness, and togetherness in a world that often moves at a very rapid pace. The true spirit of Christmas calls us to reflect on values that transcend time and culture: humility, compassion, peace, unity, and love. In embracing these themes, we transform Christmas from a season of materialism into one pregnant with meaning.
As we celebrate Christmas this year, let us remember that this event is not about what we have, but about who we are with and how we make others feel. It is a season of opening our hearts and minds to others, of putting love into action, and of finding moments of peace and tranquility in the midst of cacophony, disorder and chaos. By going back to the roots of Christmas, let us therefore invite joy, hope, and kindness into our lives, allowing Christmas grow and glow with renewed purpose and profound meaning resulting in a new birth in our own lives!
Winless in three years, Zimbabwe and Afghanistan set for rare Boxing Day Test
Fair weather except for a few showers in Northern and Eastern provinces
Most bribery cases fall through owing to CIABOC’s lapses
-
Sports6 days agoSri Lanka to mend fences with veterans
-
Sports4 days agoPathirana set to sling his way into Kiwi hearts
-
Opinion7 days agoIs AKD following LKY?
-
News2 days agoOffice of CDS likely to be scrapped; top defence changes on the cards
-
News5 days agoSL issues USD 10.4 bn macro-linked bonds
-
Opinion7 days ago‘A degree is not a title’ – a response
-
Editorial6 days agoRanil’s advice
-
Editorial7 days agoLest watchdogs should become lapdogs