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 If these two sections in the Penal Code are repealed, then anal sex and homosexual conduct (of male or female) in public or private will no longer be an offence.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