Opinion
Proposed Penal Code amendment and threat of promotion of sexual abuse of children – VII
by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development
(Part VI of this article appeared in The Island of 19 June 2023)
The Bill proposes to repeal these two Sections. If these two sections in the Penal Code are repealed, then anal sex and homosexual conduct (of male or female) in public or private will no longer be an offence. According to the submissions of the Additional Solicitor General, the repeal of the two provisions will not result in any lacuna in the law, placing the children in a vulnerable situation without any protection against sexual abuse, as the remaining provisions – S. 365B and S. 345 – of the Penal Code will provide adequate protection to the children against sexual abuse.
Let us examine S. 365B and S. 345 – of the Penal Code and see whether they can provide adequate protection to the children against sexual abuse, as submitted by the learned ASG.
S. 365B – Grave sexual abuse:
S. 365B (1) Grave sexual abuse is committed by any person who, for sexual gratification, does any act, by the use of 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, in circumstances falling under any of the following descriptions, that is to say: – (a) without the consent of the other person;
(aa) with or without the consent of the other person when the other person is under sixteen years of age;
(b) with the consent of the other person while such other person was in lawful or unlawful detention or where that consent has been obtained by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt;
(c) with the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.
(2) Whoever –
(a) commits grave sexual abuse shall be punished with rigorous imprisonment for a term not less than seven years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person;
(b) commits grave sexual abuse on any person under 18 years of age (on a person between 16 to 18 years – only if committed without consent) shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.
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.
· It is true that, as submitted by the ASG, with regard to any sexual conduct constituting grave sexual abuse, the consent of the child is immaterial where the offence is committed in respect of a child below the age of 16.
· But what about the children in the age group of 16 – 18 years? Are they not children? Are they not entitled to protection by the law against sexual abuse?
· Any person can commit any of the sexual acts mentioned in S. 365B with the consent of any child over 16 years of age.
· S. 365B will not provide any protection to such children and they will be left without any protection and open to abuse.
· Will they get any protection from S. 345 as submitted by the learned ASG. Let us see.
S. 345 – Sexual harassment
S. 345 – Whoever by assault or use of criminal force, sexually harasses another person or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction be punished with imprisonment of either description for a term which may extend to five years or with fine or both, and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.
Explanation: 1. Unwelcome sexual advances by words or action used by a person in authority in a working place or any other place shall constitute the offence sexual harassment.
2. For the purpose of this section an assault may include any act that does not amount to rape under S. 363.
· From the words used in the Section like assault or use of criminal force, sexual annoyance or harassment, unwelcome sexual advances for describing the offence, it is crystal clear that S. 345 is not intended to deal with cases of consensual sexual conduct.
· From the explanation given it clearly appears that it is intended to deal with a different type of offence;
· Even where an offender is convicted the Court has the discretion to release the offender with only a fine imposed, without any jail sentence imposed.
· From the lenient penalty laid down in the Section it clearly appears that it cannot protect children from being subject to grave crimes like anal sex.
· Children will not get any protection from S. 345 against gross acts of sexual abuse as submitted by the learned ASG.
** While making submissions before the Court, the learned ASG had stated: ‘‘Even if S. 365A is deleted in its entirety, behaving indecently in public can still be addressed under S. 7(1)(b) of the Vagrants Ordinance as well as S. 261 of the Penal Code, without criminalising a person’s sexuality.’’
*** On an analysis of S. 7(1)(b) of the Vagrants Ordinance and S. 261 of the Penal Code, it appears that the submission of the learned ASG is far from the truth.
Vagrants Ord. S. 7(1)(b):
‘any person found committing any act of gross indecency or found behaving with gross indecency, in or about any public place – shall be guilty of an offence and shall be liable on summary conviction to imprisonment of either description for a period not exceeding six months, or to a fine not exceeding one hundred rupees, or to both.
S. 261 of the Penal Code:
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
· After S. 365A is repealed, gross indecency will no longer be an offence. There is no definition of gross indecency in any penal law. At present the Police can act under S. 7(1)(b) of the Vagrants Ordinance, arrest and prosecute a person committing any act of gross indecency in any public place because gross indecency is an offence punishable under S. 365A of the Penal Code. After S. 365A is repealed, when gross indecency is no longer an offence, how can the Police arrest and prosecute a person under S. 7(1)(b) of the Vagrants Ordinance?
· The Police may end up as respondents in Fundamental Rights Applications for committing an illegal arrest.
· Vagrants Ordinance is not a law enacted to deal with this type of issues; Vagrants Ordinance was enacted in 1841, to deal with problems created by labourers brought from South India to work temporarily in upcountry plantations, who had run away and taken shelter in various places to escape from being sent back to India after their period of work was over. This Ordinance has been amended 11 times before the Independence in 1948.
· It is an Ordinance enacted to deal with following categories of persons: (a) persons behaving riotously or disorderly in public streets; (b) persons who are deemed idle and disorderly persons; (c) persons who are deemed to be rogues and vagabonds; and (d) persons who are deemed to be incorrigible rogues.
· Having no income whatsoever, women belonging to these categories were soliciting men and engaging in prostitution to earn their living. S. 7 of the Vagrants Ordinance is intended to deal with them:
S. 7(1)(a) – any person in or about any public place soliciting any person for the purpose of the commission of any act of illicit sexual intercourse or indecency, whether with the person soliciting or with any other person, whether specified or not;
(b) any person found committing any act of gross indecency or found behaving with gross indecency, in or about any public place.
·Often these acts were committed in public toilets or other places close to bus stands or railway stations or road sides; this term ‘gross indecency’ is used here to cover all types of sexual acts – vaginal sex, anal sex, oral sex, or any other sexual act.
· Generally, it is under S. 7(1) of the Vagrants Ordinance the Police act for arresting street prostitutes and other women loitering at the bus stands and railway stations at night soliciting men for sexual activities and producing them in Courts.
** S. 261 of the Penal Code appears to be equally inapplicable to cover this situation. Only an act which causes any common injury, danger or annoyance to the public or to the people in general dwelling in the vicinity or an act which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right amounts to a public nuisance under this Section.
· Display of a person’s sexual orientation will not necessarily cause injury, obstruction, danger or annoyance to the public.
· If any person engages in sexual intercourse, anal sex, oral sex or any other sexual act or displaying their sexual organs openly in a public place that may necessarily lead to public annoyance.
· No person in his or her senses will engage in sexual intercourse, anal sex, oral sex or any other sexual act or display their sexual organs openly in a public place.
(To be concluded)
A passion for wildlife conservation and a love for dogs has led to the creation of a non-profit organisation that trains puppies to protect endangered species.
Dogs4Wildlife, based in Carmarthen, supports frontline conservation efforts across sub-Saharan Africa.
Founders Darren Priddle and Jacqui Law train and develop specialist conservation dogs to support anti-poaching rangers.
“There is no better feeling on this planet than to know that our dogs are saving lives,” said Jacqui.
Darren and Jacqui are professional dog trainers and have been developing operational working dogs for 15 years.
Darren said: “Our love for dogs and our commitment to developing them for specialist work helped us to decide ‘why not?’
“If we are able to train dogs to track people in this country, then why can we not train dogs to help protect our wildlife all across Africa and that’s where Dogs4Wildlife was born.”
The dogs are bred in-house and go through “extensive and advanced training” and a development programme that starts from as early as two days old.
“Relationship is key when deploying a dog to work with anti-poaching rangers,” Darren added.
“We do a lot of relationship building, a lot of conditioning in terms of the patterns of behaviour we want from the dog.
“Whether that be human scent tracking, specialist detection work or operating in a control base on a wildlife reserve.”
The team then “impart all of that knowledge and experience” to the rangers once the dogs have been deployed to a wildlife reserve.
The team has trained and deployed 15 operation dogs to five sub-Saharan African countries including Zimbabwe, Tanzania and Mozambique.
They also provide consultancy and specialist training to different organisations, including the Akashinga, an anti-poaching group in Zimbabwe.
In October, one of their dogs Shinga tracked a poacher 4.5 km (2.8 miles) straight to his front door after a warthog was killed in Zimbabwe.
The team’s work in Africa not only supports the anti-poaching rangers but also communities in the area.
The aim of the programme is to inspire the future generations “to love and support the natural world that surrounds them”, said Darren.
“Whether that be human scent tracking, specialist detection work or operating in a control base on a wildlife reserve.”
The team then “impart all of that knowledge and experience” to the rangers once the dogs have been deployed to a wildlife reserve.
Sunil Dharmabandhu
Carmarthenshire, Wales, UK
In an era of rapid technological advancement, one would assume that losing a mobile phone could be addressed swiftly and efficiently. However, for a close friend of mine, Anura (not his real name), a senior professional and well-connected individual, the ordeal of tracing his lost iPhone 15 exposed a web of systemic inefficiencies, poor communication, and hidden truths.
Anura lost his phone on 15 Dec., 2024, while travelling in a Colombo suburb. What followed was a grueling process that highlighted the bureaucratic labyrinth ordinary citizens must navigate. Acting on the advice of two telecommunications veterans, he embarked on a quest to retrieve his phone only to encounter roadblocks at every turn.
Ravi, a retired IT engineer with over four decades of experience, outlined a standard procedure: file a police report, present it to the mobile network provider, and let the Telecommunications Regulatory Commission (TRC) handle the rest. Siri, a board member of a prominent telecom network, confirmed that bypassing the police was not an option due to legal requirements.
Despite their expertise, neither expert was aware of a critical fact: the phone-tracking system had been compromised in 2022. Anura’s initial attempts at the police station were equally disheartening. Officers refused to provide him with a copy of his complaint, citing outdated practices, and he spent hours navigating red tape before finally obtaining a certified copy.
With the police report in hand, Anura visited the TRC in Narahenpita. The experience was no less frustrating. Initially directed back to the police by security staff, Anura had to argue his way into the premises. Inside, a polite but unhelpful officer informed him that the system for tracing lost phones had not been operational since 2018.
The officer defended the TRC’s actions, stating they had informed the Inspector General of Police of the changes, expecting the information to trickle down to individual stations. Anura, however, was unimpressed. “This top-down communication approach is ineffective,” he argued, highlighting the needless time, effort, and money wasted by citizens due to a lack of public awareness.
During his discussions, Anura uncovered an unsettling truth: the phone-tracking system was compromised.
“Your problem,” Anura told the TRC officer, “is sending people here and there without telling them the truth. If criminals know the system is down, they might exploit it—but hiding it isn’t the solution.”
Frustrated but undeterred, Anura vowed to bring the issue to light. He criticised the TRC for its lack of accountability, calling for a more proactive approach to public communication. “If I were the minister or the PM, I would prioritise making citizens’ lives easier and saving public resources,” he said.
On his way out, Anura ensured he had proof of his visit by photographing the TRC’s logbook, documenting yet another step in his relentless pursuit of accountability.
Anura’s experience serves as a cautionary tale about the consequences of poor communication and systemic inefficiencies. It underscores the urgent need for:
Transparent Communication: Regulatory bodies like the TRC must ensure critical updates reach all stakeholders, including the public, in a clear and accessible manner.
Streamlined Processes: Citizens should not have to endure unnecessary delays and expenses to resolve simple issues.
Accountability: Authorities must take responsibility for addressing systemic failures instead of deflecting blame.
As citizens, we must demand better. Until then, stories like Anura’s will remain a stark reminder of the work that still needs to be done.
The aforesaid incident highlights the need for transparent communication, streamlined processes, and greater accountability from regulatory bodies. Anura’s ordeal is a wake-up call for systemic reform to save citizens from unnecessary inconvenience and wasted resources.
Eng. P. N. D. Abeysuriya
Colombo
At this Time of the Year, the “Season of Goodwill towards men”, please spare a thought for the plight of 103 ROHINGYA Refugees including 25 children found drifting in a rickety Boat and apprehended by the Navy.
The Rohingya are an extremely persecuted minority in Burma/ Myanmar, where they are being openly murdered by the Military Government of Myanmar, For NO REASON whatsoever, except ethnicity, (they are minority Muslims), although they have lived in Myanmar for several generations.
The 12 crew members of the boat have been remanded. They can barely make themselves understood due to the language difference. They can’t speak English.
Apparently, they were apprehended by the Navy in Sri Lankan waters near Trincomalee and first reports indicate that they never intended to make Sri Lanka their destination. They were probably heading to a Muslim majority country. Of the three boats that set out, two sank, and everyone who could, clambered onto this one boat.
Reports said that many of them were suffering from acute hunger at the time of “arrest”. These people completely fit the description of REFUGEE, whom Sri Lanka is duty bound to provide safe protection under the Geneva Convention. Conventions and Legalese aside, what happened to the so-called “smiling welcome” with which we supposedly greet Foreigners? Is that fake smile dependent on the dollars that the tourist is carrying?
I appeal to the new Government of Sri Lanka to set aside the opportunistic behaviours of recent past Presidents, humanitarian attitude. Our unassuming and transparent President knows what it is to face hardship. Please sir, look at the Rohingya as fellow Humans’ in distress. Let’s recall during this Christmas Season that the Pope himself called the Rohingya “The most persecuted people on Earth! Jesus himself was a Refugee whose family fled to Bethlehem. The Muslim Community too, also have a special responsibility These people ARE NOT CRIMINALS. They need our protection.
Jayanta Kurukulasuriya
President instructs officials to curb drug trafficking and underworld activities in prisons
President’s Fund to relocate to a new office in the New Year
Implement necessary plans swiftly to make Sri Lanka an attractive tourist destination – President instructs officials
-
News7 days agoOffice of CDS likely to be scrapped; top defence changes on the cards
-
Features7 days agoAn Absurd play in Parliament: Qualifications versus education
-
Midweek Review6 days agoEx-SLN seniors focus on seabed mining and Sri Lanka’s claim for the delimitation of the Outer Continental Margin
-
Opinion5 days agoGoing easy on Year 5 Scholarship trial
-
Editorial6 days agoOf that half-open can of worms
-
News3 days agoService chiefs won’t get extensions; scrapping of CDS Office confirmed
-
Features7 days agoMinorities want govt. to solve their problems directly
-
Editorial7 days ago
Grim Reaper in overdrive