Law is Light
is a series of trilingual legal discussions to shed light on the law. The Latin maxim “ignorantia legis neminem excusat” translates to ignorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In its fourth discussion, the programme focused on “Sexual Offences”.
The discussion featured Attorneys-at- Law: Seevali Amithirigala PC is active in criminal and civil law practice, and a senior lecturer at Sri Lanka Law College and Royal Institute, Mr Asthika Upul Devendra, a senior lawyer who lectured for Law entrance exams and was a senior lecturer at CfPS Law School. Prof. Dr. Shanthi Segarajasingham, a senior lecturer at the Faculty of Law, University of Colombo.
What does consent mean in the offence of rape? And what type of consent will not be accepted in the court of law?
– Sexual offences in the Penal code are, rape (s.363), incest (s.364A), unnatural offences (s.365), acts of gross indecency (s.356A), grave sexual abuse (365B) and sexual harassment (s.344). The section that defines the offence of rape states that the very act of rape will be, a man having sexual intercourse with a woman without the consent of that woman.
The absence of consent is a vital element in the offence of rape. Consent can be obtained, but it would not qualify as consent for various reasons. For example, if a person is under lawful or unlawful detention and you use force to obtain consent, such a consent would not be consent in terms of the law. If you obtained consent by intimidation, threat of force or by putting the person in the fear of death and hurt would amount to consent obtained by fear or duress. Those consent will not qualify as consent for sexual intercourse. On the other hand there is consent obtained from a person who is intoxicated and the person has been intoxicated by the perpetrator, also if the person is unable to give consent because the victim is of unsound mind. In such a situation, such consent would not qualify as legal consent under the law. We have instances where sexual intercourse is indulged by people who are unable to consent for sexual activities by reason of being underage. The age of consenting for sexual activity under the Sri Lankan law is the age of 16. If you are below 16 and even if you consented, it would not qualify as a valid consent.
In other words, consent should be by free will of the individual?
A – Absolutely right. It should be free willed, genuine consent, understanding, appreciating what kind of activity she is getting into is contemplated prior to granting that consent.
Can you explain what is passive submission and consent is, and the difference between the two?
– In Inoka Gallage and Kamal Addarrachchi and others, the honourable justice Asoka de Silva quoted from Rao Harinarian v State,” a mere act of resignation in the face of inevitable compulsion, non-resistance or passive giving in when volitional faculty is either coloured by fear or vitiated by duress cannot be deemed to be consent as understood in law. Consent on the part of a woman as a defence to an allegation of rape requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of moral quality of the choice between resistance and assent, submission of her body under the influence of fear or terror is no consent” The question of consent is defined as express and implied consent. Passive giving in is clearly distinguished from express or implied consent.
What is the punishment for rape?
– The minimum sentence is between 7 and 20 years. The punishment would be more than 10 years and less than 20, if the act was done by a government officer utilising his authority over the individual, on a pregnant woman, a girl under the age of 18, a female who is mentally unstable or gang rape. The punishment will be more than 15 years and less than 20 years, if the rape occurred between individuals of prohibited degrees of relationship.
According to Sri Lankan law, is there a possibility where a woman can be held accountable for committing rape on a man?
– S. 363 of the Penal Code, it is clear that the offence has been perpetrated by a man on a woman. So in the context of that definition I don’t think it envisages rape by a woman of a man.
Is rape within marriage a crime in Sri lanka?
– According to the contemporary criminal law, marital rape, as a concept is criminalised only in the event of judicial separation under s.363A Penal Code.
But the concept of marital rape is recognised internationally isn’t it?
– It is a concept recognised in many jurisdictions. With time the stereotypification might also change and I think certain elements of this offence would have to be explained to our law makers.
Could we enlighten the public on the punishment for the crime of rape?
– S.364 Penal Code states, ‘whoever commits rape shall except in the cases provided for in sub s.2 &3, be punished with rigorous imprisonment for a term not less than seven years and not exceeding 20 year and with a fine and shall in addition be ordered to pay compensation of an amount determined by court to a person in respect of whom the offence was committed for the injuries caused to such persons.
Can you explain what “institutional rape” means?
A – Where a person is in a position of authority in an institution and the victim is institutionalised and a person rapes such a victim in such an institution, would qualify as an institutional rape.
– Even when this person of authority does obtain the consent, it will not be valid consent
Can you educate the public on what grave sexual abuse means?
– S.365B defines it as, grave sexual abuse is committed by a 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 or any other person being an act which does not amount to rape in circumstances falling under the following : without the consent of the person or, with or without the consent of the other person when the other person is below the age of 16, with the consent of the other person while the other person was under lawful custody or unlawful detention when the consent has been obtained by the use of force or intimidation or threat or detention or by putting such person in fear of death or hurt, with the consent of the other person where such consent has been obtained at the time when the other person is of unsound mind or in a state of intoxication induced by alcohol or drugs.
In the event of a gang rape, how does the law punish everyone involved in it?
– If all the participants who are adduced of gang rape have, according to the evidence, participated in the act of gang rape, then they will be charged if evidence has been established. If one or few of the accused who have merely been present and who have not actively participated then such a person will not be found guilty of gang rape.
What is gross indecency?
– S.365A, any person who in public or private commits or is a party to a commission or procures or attempts to procure the commission by any person of any act of gross indecency with another person shall be guilty of an offence.
Gross indecency can be committed in public and in private. If a person misbehaves grossly indecently, example acting against the norms of decency.
What is incest? And what is the punishment attached to it?
A – Incest is where sexual intercourse is between parties which have been defined to be related, descendants or adoptive parents, grand children or having a relationship of siblings being a half-brother or half-sister, this is laid down in S.364A of the Penal Code. Sexual relations between these parties will be found guilty of incest where they would be punished under the law with rigorous imprisonment not less than seven years and not exceeding 20 years with a fine.
How is the victim protected by the law?
– We have police stations that have special divisions for women and children. The victim will feel a sense of relief for being able to speak to a female officer. When the case is heard, it is possible to produce a video testimony of the child. The proceedings can take place “in camera”, that is, with only those individuals concerned in the case.
We need be aware of false allegations by women against men. This is a very difficult situation as the act involved just the man and woman.
The Victim Protection act provides for compensation and assistance if the victim is facing experiencing psychological trauma.
A woman can be threatened to not file a case or not give evidence, in such an instance the punishment is very severe and bail can be obtained only upon special reasons from the Court of Appeal.
Compiled by Zeenath Zakir
Pro bono Secretary 2020-2021
The complete discussion is available on our YouTube channel ‘Law Students Association of Sri Lanka’, in all three languages.
Selective targeting not law’s purpose
By Jehan Perera
The re-emergence of Donald Trump in the United States is a reminder that change is not permanent. Former President Trump is currently utilising the grievances of the white population in the United States with regard to the economic difficulties that many of them face to make the case that they need to be united to maintain their position in society. He is coming forward as their champion. The saying “Eternal vigilance is the price of liberty” is often attributed to the founders of the United States, Thomas Jefferson, Thomas Paine, Abraham Lincoln, among many others, though Lord Denning in The Road to Justice (1988) stated that the phrase originated in a statement of Irish orator John Philpot Curran in 1790. The phrase is often used to emphasise the importance of being vigilant in protecting one’s rights and freedoms.
Ethnic and religious identity are two powerful concepts by which people may be mobilised the world over. This is a phenomenon that seemed to have subsided in Western Europe due to centuries of secular practices in which the state was made secular and neutral between ethnicities and religions. For a short while last year during the Aragalaya, it seemed that Sri Lanka was transcending its ethnic and religious cleavages in the face of the unexpected economic calamity that plunged large sections of the population back into poverty. There was unprecedented unity especially at the street level to demonstrate publicly that the government that had brought the country to this sorry pass had to go. The mighty force of people’s power succeeded in driving the leaders of that government out of power. Hopefully, there will be a government in the future that will bring the unity and mutual respect within the people, especially the younger generations, to the fore and the sooner the better as the price is growing higher by the day.
But like the irrepressible Donald Trump the old order is fighting to stage its comeback. The rhetoric of ethnicity and religion being in danger is surfacing once more. President Ranil Wickremesinghe who proclaimed late last year that the 13th Amendment to the constitution would be implemented in full, as it was meant to be, and enable the devolution of power to be enjoyed by the people of the provinces, including those dominated by Tamils and Muslims, has gone silent on this promise. The old order to which he is providing a new economic vision is clearly recalcitrant on ethno-religious matters. As a result, the government’s bold plan to set up a Truth and Reconciliation Commission as promised to the international community in 2015 to address the unresolved human rights issues of the war, is reportedly on the rocks. The main Tamil political parties have made statements that they will not legitimise or accept such a mechanism in the absence of a genuine devolution of power. Politics must not override policies.
The sense of threat to ethnicity and religion looms too large once again for forward movement in conflict resolution between the different communities that constitute the Sri Lankan nation which is diverse and plural. Two unlikely persons now find themselves at the centre of an emotion-heavy ethno-religious storm. One is a comedian, the other is a religious preacher. Both of them have offended the religious sensibilities of many in the ethno-religious Sinhala Buddhist majority community. Both of their statements were originally made to small audiences of their own persuasion, but were then projected through social media to reach much larger audiences. The question is whether they made these statements to rouse religious hatred and violence. There have been numerous statements from all sides of the divide, whether ethnic, religious or political, denouncing them for their utterances.
Both comedian Nathasha Edirisooriya and pastor Jerome Fernando have apologised for offending and hurting the religious sentiments of the Buddhist population. They made an attempt to remedy the situation when they realised the hurt, the anger and the opposition they had generated. This is not the first time that such hurtful and offensive comments have been made by members of one ethno-religious community against members of another ethnic-religious community. Taking advantage of this fact the government is arguing the case for the control of social media and also the mainstream media. It is preparing to bring forward legislation for a Broadcasting Regulatory Commission that would also pave the way to imprison journalists for their reporting, impose fines, and also revoke the licences issued to electronic media institutions if they impact negatively on national security, national economy, and public order or create any conflict among races and religions.
In a free society, opportunities are provided for people to be able to air their thoughts and dissents openly, be it at Hyde Park or through their representatives in Parliament. The threat to freedom of speech and to the media that can arise from this new law can be seen in the way that the International Covenant on Civil and Political Rights (ICCPR) which is the world’s standard bearer on civil and political rights has been used and is being abused in Sri Lanka. It was incorporated into Sri Lankan law in a manner that has permitted successive governments to misuse it. It is very likely that the Broadcast Regulatory Commission bill will yield a similar result if passed into law. The arrest and detention of comedian Natasha Edirisooriya under the ICCPR Act has become yet another unfortunate example of the misuse of a law meant to protect human rights by the government. Pastor Jerome Fernando is out of prison as he is currently abroad having left the country a short while before a travel ban was delivered to him.
The state media reported that a “Police officer said that since there is information that she was a person who was in the Aragalaya protest, they are looking into the matter with special attention.” This gives rise to the inference that the reason for her arrest was politically motivated. Comedian Edirisooriya was accused of having violated the provisions in the ICCPR in Section 3(1) that forbids hate speech. Section 3(1) of the ICCPR Act prohibits advocacy of hatred that constitutes incitement to discrimination, violence or hostility. The international human rights watchdog, Amnesty International, has pointed out that in the case of Edirisooriya that for speech to be illegal on the grounds of being hate speech it requires “a clear showing of intent to incite others to discriminate, be hostile towards or commit violence against the group in question.” Amnesty International also notes that “When the expression fails to meet the test, even if it is shocking, offensive or disturbing, it should be protected by the state.”
Ironically, in the past there have been many instances of ethnic and religious minorities being targeted in a hateful manner that even led to riots against them, but successive governments have been inactive in protecting them or arresting their persecutors. Such targeting has taken place, often for political purposes in the context of elections, in blatant bids to mobilise sections of the population through appeals to narrow nationalism and fear of the other. The country’s political and governmental leaders need to desist from utilising the ICCPR Act against those who make social and political critiques that are outside the domain of hate speech. The arrest of Bruno Divakara, the owner of SL-Vlogs, under the ICCPR Act is an indication of this larger and more concerning phenomenon which is being brought to the fore by the Broadcasting Regulatory Commission bill.
The crackdown on the space for free expression and critical comment is unacceptable in a democratic polity, especially one as troubled as Sri Lanka, in which the economy has collapsed and caused much suffering to the people and the call to hold elections has been growing. The intervention of the Human Rights Commission which has called on the Inspector General of Police to submit a report on the arrest and its rationale is a hopeful sign that the independence of institutions intended to provide a check and balance will finally prevail. The Sri Lankan state will hopefully evolve to be a neutral arbiter in the disputes between competing ethnic, religious and partisan political visions of what the state should be and what constitutes acceptable behaviour within it. Taking on undemocratic powers in a variety of ways and within a short space of time is unlikely to deliver economic resurgence and a stable and democratic governance the country longs for. Without freedom, justice and fair play within, there can be no hope of economic development that President Wickremesinghe would be wanting to see.
Have Humanities and Social Sciences muddied water enough?
By Maduranga Kalugampitiya
The domain of the humanities and social sciences is under attack more than ever before. The relevance, as well as usefulness of the degrees earned in those fields, is being questioned left, right, and centre. The question of whether it is meaningful at all to be spending, if not wasting, the limited financial resources available in the coffers to produce graduates in those fields is raised constantly, at multiple levels. Attempts are being made to introduce a little bit of soft skills into the curricula in order to add ‘value’ to the degree programmes in the field. The assumption here is that either such degree programmes do not impart any skills or the skills that they impart are of no value. We often see this widely-shared profoundly negative attitude towards the humanities and the social sciences (more towards the former than towards the latter) being projected on the practitioners (students, teachers, and researchers) in those areas. At a top-level meeting, which was held one to two years ago, with the participation of policy-makers in higher education and academics and educationists representing the humanities and social sciences departments, at state universities, a key figure in the higher education establishment claimed that the students who come to the humanities and social sciences faculties were ‘late-developers’. What better (or should I say worse?) indication of the official attitude towards those of us in the humanities and the social sciences!
While acknowledging that many of the key factors that have resulted in downgrading the humanities and social sciences disciplines are global by nature and are very much part of the neoliberal world order, which dominates the day, I wish to ask if we, the practitioners in the said fields, have done our part to counter the attack.
What the humanities and the social sciences engage with is essentially and self-consciously social. What these disciplines have to say has a direct bearing on the social dimension of human existence. It is near impossible to discuss phenomena in economics, political science, or sociology without having to reflect upon and use examples from what happens in our lives and around us. One cannot even begin to talk about teaching English as a second language without taking a look at her/his own experience learning English and the struggles that many people go through at different levels doing the same. One cannot talk about successful ways of teaching foreign languages without recognizing the need to incorporate an engagement with the cultural life of those languages at some level. No reading of an artwork—be it a novel, a movie, a painting, a sculpture, a poem, whatever—is possible without the reader at least subconsciously reflecting upon the broader context in which those artworks are set and also relating her own context or experience to what is being read. A legal scholar cannot read a legislation without paying attention to the social implications of the legislation and the dynamics of the community at whom that legislation is directed. The point is our own existence as social beings is right in the middle of what we engage with in such disciplines. To steal (and do so self-consciously) a term from the hard/natural sciences, society is essentially the ‘laboratory’ in which those in the humanities and social sciences conduct their work. There may be some areas of study within the humanities and social sciences which do not require an explicit engagement with our social existence, but I would say that such areas, if any, are limited in number.
Needless to say that every social intervention is political in nature. It involves unsettling what appears to be normal about our social existence in some way. One cannot make interventions that have a lasting impact without muddying the water which we have been made to believe is clear. How much of muddying do we as practitioners in the field of humanities and social sciences do is a question that needs to be asked.
Unfortunately, we do not see much work in the humanities and social sciences which unsettles the dominant order. What we often see is work that reinforces and reaffirms the dominant structures, systems, and lines of thought. Lack of rigorous academic training and exposure to critical theory is clearly one of the factors which prevents some scholars in the field from being able to make interventions that are capable of muddying the water, but the fact that we sometimes do not see much muddying even on the part of the more adept scholars shows that lack of rigorous training is not the sole reason.
Muddying the water is no simple matter. To use a problematic, yet in my view useful, analogy, a scholar in the said field trying to make an intervention that results in unsettling the order is like a hydrogen atom in H2O, ‘water’ in layperson’s language, trying to make an intervention which results in a re-evaluation of the oxygen atom. Such an intervention invariably entails a re-evaluation of the hydrogen atom as well, for the reason that the two atoms are part of an organic whole. One cannot be purely objective in its reading of the other. Such an intervention is bound to be as unsettling for the hydrogen atom as it is for the oxygen atom. Similarly, in a majority of contexts, a scholar in the area of the humanities and social sciences cannot make an intervention, the kind that pushes the boundaries of knowledge, without unsettling the dominant structures and value systems, which they themselves are part of, live by, and also benefit from. For instance, the norms, values, and practices which define the idea of marriage in contexts like ours are things that a male scholar would have to deal with as a member of our society, and any intervention on his part which raises questions about gender-based inequalities embodied in such norms, values, and practices would be to question his own privilege. Needless to say that such an intervention could result in an existential crisis for the scholar, at least temporarily. Such interventions also entail the possibility of backlash from society. One needs thorough training to withstand that pressure.
In place of interventions that unsettle the existing order, what we often see is work, which re-presents commonsensical knowledge garbed in jargon. To give an example from an area that I am a bit familiar with, much of the work that takes place in the field of English as a Second Language (ESL) identifies lack of motivation on the part of the students and also teachers and also lack of proper training for teachers as the primary reasons for the plight of English education in the country. This reading is not very different from a layperson’s understanding of the problem, and what we often see as research findings in the field of ESL is the same understanding, albeit dressed up in technical-sounding language. Such readings do not unsettle the existing order. They put the blame on the powerless. Very limited is the work that sees the present plight of English education as a systemic or structural problem. Reading that plight as a systemic problem requires us to re-evaluate the fundamental structures which govern our society, and such re-evaluation is unsettling is many ways. I argue that that is what is expected of scholarship in the ESL field, but unfortunately that is not what we see as coming out of the field.
If what gets produced as knowledge in the humanities and social sciences is jargonized commonsense, then the claim that such fields have nothing important to say is valid. If what a scholar in those fields has to say is not different to a layperson’s understanding of a given reality, the question whether there is any point in producing such scholars becomes valid.
In my view, the humanities and social sciences are in need of fundamental restructuring. This restructuring is not the kind which calls for the incorporation of a bit of soft skills here and a bit of soft skills there so that those who come out of those fields easily fit into predefined slots in society but the kind that results in the enhancement of the critical thinking capacity of the scholars. It is the kind of restructuring that would produce scholars who are capable of engaging in a political reading of the realities that define our existence in society and raise difficult questions about such existence, in other words, scholars who are capable of muddying the water.
(Maduranga Kalugampitiya is attached to Department of English, University of Peradeniya)
Kuppi is a politics and pedagogy happening on the margins of the lecture hall thatparodies, subverts, and simultaneously reaffirms social hierarchies.
Girl power… to light up our scene
We have never had any outstanding all-girl bands, in the local scene, except, perhaps…yes The Planets, and that was decades ago!
The Planets did make a name for themselves, and they did create quite a lot of excitement, when they went into action.
Of course, abroad, we had several top all-girl bands – outfits like the Spice Girls, Bangles, Destiny’s Child, and The Supremes.
It’s happening even now, in the K-pop scene.
Let’s hope we would have something to shout about…with the band Mantra – an all-girl outfit that came together last year (2022).
Mantra is made up of Hiruni Fernando (leader/bass guitar), Gayathma Liyanage (lead guitar), Amaya Jayarathne (drums), Imeshini Piyumika (keyboards), and Arundathi Hewawitharana (vocals).
Amaya Arundathi and Imeshini are studying at the University of Visual and Performing Arts, while Gayathma is studying Architecture at NIMB, and Hiruni is the Western Music teacher at St. Lawrence’s Convent, and the pianist at Galadari Hotel, having studied piano and classical guitar at West London University.
They have already displayed their talents at various venues, events, weddings, and on TV, as well (Vanithabimana Sirasa TV and Charna TV Art Beat).
Additionally, the band showcased their talent at the talent show held at the Esoft Metro Campus.
The plus factor, where this all-girl outfit is concerned, is that their repertoire is made up rock, pop, and Sinhala songs.
Explaining as to how they came up with the name Mantra, founder member Hiruni said that Mantra means a word, or sound, repeated to aid concentration in meditation, and that the name was suggested by one of the band members.
She also went on to say that putting together a female band is not an easy task, in the scene here.
“We faced many difficulties in finding members. Some joined and then left, after a short while. Unlike a male band, where there are many male musicians in Sri Lanka, there are only a few female musicians. And then, there are some parents who don’t like their daughters getting involved in music.”
With talented musicians in their line-up, the future certainly looks bright for Mantra who are now keen to project themselves, in an awesome way, in the scene here, and abroad, as well.
“We are keen to do stage shows and we are also planning to create our own songs,” said Hiruni.
Yes, we need an all-girl group to add variety to our scene that is now turning out to be a kind of ‘repeating groove,’ where we see, and hear, almost the same thing…over and over again!
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