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Proposed Penal Code amendment and threat of promotion of sexual abuse of children – VII

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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 If these two sections in the Penal Code are repealed, then anal sex and homosexual conduct (of male or female) in public or private will no longer be an offence.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)



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Opinion

SL CRICKET SAVED BY THE PRESIDENT

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The President has taken the bold decision to get rid of the office bearers of Sri Lanka Cricket (SLC) and appoint an interim committee till such time suitable persons are elected to run the SLC. All Sri Lankan cricket lovers will applaud and endorse President Anura Kumara Dissanayake’s action as the SLC was one of the most corrupt sports organizations in Sri Lanka for a long time.

The office bearers had organized it in such a manner that no other persons could get elected to this den of thieves. They increased the number of clubs as members to collect their votes. Large amounts of funds were doled out to the clubs to which the office bearers belonged.

All cricket lovers would remember how when a previous Minister holding the Cabinet portfolio pertaining to sports tried to get rid of the corrupt officials which the then Parliament endorsed unanimously and how they manipulated to remain in power and get the President at that time to get rid of the Minister instead of the corrupt officials of the SLC.

They were able to get round the ICC too to get what they wanted. The Minister who was appointed in place of the ousted Minister fell into the pockets of the SLC officials and they continued happily thereafter. The Minister was happy and the corrupt officials were happy!

It is not only the elected officials who have to be removed. There are executive employees and other permanent employees who have to be relieved of their duties as otherwise they could get round the incoming officials, and the activities of the bandwagon could go on.

We would appreciate if the President and the Minister in charge would go the whole hog and relieve the SLC of all corrupt personnel so that Sri Lanka’s cricket could get back to its halcyon days again.

HM NISSANKA WARAKAULLE

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Has Malimawa govt. become Yahapalanaya II ?

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Malimawa government and Yahapalanaya are dissimilar in many respects, the most important being whilst Yahapalanaya had to manage with a balancing act in the parliament, Malimawa has the luxury of a massive parliamentary majority. However, they share one thing in common; the main plank for the election of both presidents Dissanayake and Sirisena was their solemn pledge for the eradication of corruption. It looks as if both have failed miserably, on that count!

It did not take very long for Yahapalanaya’s first act of corruption; the bond scam. COPE, headed by the veteran politician D E W Gunasekara, picked on this but to prevent the presentation of the report, Sirisena dissolved the parliament which was done at the request of the Prime Minister Ranil, to whom Sirisena was obliged for the unexpected bonanza of becoming president. This enabled the second bond scam to take place, also masterminded by Ranil’s friend Mahendran, imported from Singapore!

Malimawa convinced the voters that they are the only group that could get rid of the 76-year curse of corruption and made a multitude of promises, most of which are already broken! What is inexcusable is that, in a short space of time, they seem to have become as corrupt as any previous government and they seem to excel their predecessors in doling out excuses. Of course, they have a band of devoted social media influencers who are very adept at throwing mud at their opponents which they hope would help to cover up their sins. How long this strategy is going to work is anybody’s guess!

Some of these issues were addressed in an article, “Squeaky clean image of JVP in tatters” by Shamindra Ferdinando (The Island, 22 April). I hasten to add that, though some of his supporters are still trying to paint an honest image of AKD, he should be held responsible for many of these misdeeds and irresponsible acts.

One of the first acts of the newly elected president AKD was to appoint two retired police officers, who openly worked for the NPP through the Retired Police Collective, to top posts; Ravi Seneviratne as Secretary to the Ministry of Public Security and Shani Abeysekara as the Director of CID. Both of them held top jobs in the CID when the Easter Sunday attack took place and were blamed, by some, that they too failed to prevent this horrendous act of terrorism. In addition, there was a case against Seneviratne for causing accidents whilst under the influence and Abeysekara was exposed as a ’fixer’ by the infamous Ranjan Ramanayaka tapes. No one would have objected had they been appointed after their names were cleared but AKD’s rash decision to appoint them, disregarding all norms, clearly showed what his long-term strategy was. Was this not political corruption?

Now these two tainted officers are heading the search for the mastermind of the Easter Sunday attacks! Are they being used to divert attention away from Ibrahim’s family that was supposed to have funded the project? After all, Mohamed Ibrahim, the father, was on the national list of the JVP, and the two sons were the leading suicide bombers. It is a matter of great surprise that the Catholic church led by Cardinal Ranjith is not demanding the removal of these two officers from the investigation, who obviously have a conflict of interest. It becomes even more surprising when the demand is made for the Deputy Minister of Defence Aruna Jayasekara to resign, for the same reason; as well stated in the editorial, “Of masterminds” (The Island, 21 April).

The first act of the new parliament was to elect ‘Dr’ Ranwala as the speaker and pretty soon his doctorate was challenged. He stepped down to look for the certificate, which he is still looking for! Though some of the ministers too have admitted that Ranwala may not have a PhD, AKD seems silent. When Ranwala was involved in an RTA, police had run out of breathalyser tubes and blood was taken after a safe period had elapsed. Why has AKD no guts to sack him?

Episode of the release of 323 containers, without the mandatory inspections, seems to be receding to the past and the long-awaited report may be gathering dust in the president’s office! It is very likely due to political intervention and we probably will never know who benefitted.

A minister, who claimed that he is living on his wife’s salary and on the generosity of the party faithfuls, seems to have been able to build a three-storey house in a suburb of Colombo. He claims that when he made that statement, his father was alive but has since died and he has inherited everything as he is the only son! What a shame that Marxists do not believe in sharing the family wealth with sisters? Though the opposite may be true, his explanation that he was able to build a house in Colombo by selling the land in Anuradhapura rings hollow!

The worst of all was the coal scam which would have long lasting consequences on our economy. I do not have to go into details as much has been written about this but wish to point out AKD’s role. In spite of ex-minister Kumara Jayakody being indicted by CIABOC, AKD continued to give unstinted support till it became pretty obvious that he had to go. In fact, he is being charged with an offence which was committed whilst he was serving the Ceylon Fertilizer Company which was under the purview of, guess who? AKD when he was the Minister of Agriculture.

Devastating report from the Auditor General,before Jayakody’s resignation, would not have happened if AKD had his way. He attempted a number of times to get one of his henchmen appointed to this coveted post, overlooking those experienced officers in the department. AKD’s political machinations were thwarted thanks to the integrity of some members of the Constitution Council. If not for them, AKD’s nominee would have been in post and, perhaps, his friend Jayakody would still be the minister.

Malimawa seems to have beaten Yahapalanaya rather than being the second!

By Dr Upul Wijayawardhana

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Opinion

Pot calling the kettle black?

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Doctor Upul Wijayawardhana (eminent physician), posed a riddle for us. He wrote about that island Sri Lanka as ‘ this little dot in the ocean’ when deriding the remark of President Dissanayake who had said that Sri Lanka was a hunduva , a term that indicated a small volume: me hunduve inna puluvan da? (Can you live in this restricted space?) Most sensible people, even uneducated, judge that the volume of a little drop (of whatever) is smaller than that of a hunduva; so is weight. When the learned doctor emphatically maintains ‘….we are not a hunduva’ but ‘… a little dot in the ocean…’, is the pot calling the kettle black or worse?

Physically and population wise, Sri Lanka is neither ‘a little dot’ nor ‘a hunduva. This is all in the rich imaginations of Dissanayake and Wijayawardhana. I once counted that there were more than 50 members of the UN who were smaller than Sri Lanka in physical and population size. England was a sizeable island with a small population in the northwest corner of Europe in late 18th century when it began to become what China, with 1.3 billion people and jutting out to the Pacific, is now. From about 1850, when the population of Great Britain was about 20 million, less than that of Sri Lanka in 2026, it ruled more than half the world. Besides, do not forget Vanuatu, Kiribati, Cook Islands, Antigua and Barbuda, Barbados, Lesotho and New Zealand (who habitually beats us at cricket). New Zealand with 5 million population played against 1.5 billion population India (1:300) for the T20 cricket championship a few weeks ago. I quietly wished New Zealand would win; so much for crap about dots in the Indian Ocean or the south Pacific.

Dr. Wijayawardhana also wrote about history and about ‘The achievements of Hunduwa’. The massive reservoirs and extensive irrigation systems in rajarata and ruhuna as well as the stupa are indeed tremendous works of irrigation and bear witness to superior ingenuity and organising ability, for the time they were built. They compare very well among structures elsewhere in the ancient world. Terms like ‘granary of the East’ must be taken with more than a grain of salt. Facile use of such terms does not take account of whatever shreds of evidence there is of adversity in those times. Monsoon Asia over the ages has more or less regularly suffered from floods, droughts and consequent famines. The last dire famine was in Bengal in 1944. The irrigation works in Lanka were a magnificent response to those phenomena. The modern response has been scientific agriculture making India a major grain exporter, from near famine conditions in 1973-74. Recall Indira Gandhi’s garibi hatao (eliminate poverty) speech to the General Assembly of the UN, that year.

The bhikkhu who wrote down the tripitaka in aluvihara did so because there was the threat of a severe famine in the course of which learned bhikkhu might have come to harm. Buddhist thought over centuries had been passed from generation to generation vocally (saamici patipanno bhagavato savaka (listener) sangho) and the departure from that tradition must have required a major threat of famine. There are stories of bhikkhu from Lanka fleeing from dire straits. In the same vein, while the mahavamsa speaks of kings and their valiant deeds, there is little account of the large mass of little people who lived then. Sensible teaching of the history of a people must include the history of as much of the people as possible and some idea of the history of other peoples in comparable times to avoid feeling dangerously smug and arrogant, which we have seen many times over.

Usvatte-aratchi

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