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Sexual Offences

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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?

Amithirigala

– 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?

A

– 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?

Upul

– 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?

A

– 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?

A

– 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?

A

– 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?

A

– 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.

U

– 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?

A

– 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?

A

– 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?

A

– 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?

U

– 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

zeenathzakir24@gmail.com>

Pro bono Secretary 2020-2021

The complete discussion is available on our YouTube channel ‘Law Students Association of Sri Lanka’, in all three languages.



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Policy quandaries set to rise for South in the wake of AUKUS

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From the viewpoint of the global South, the recent coming into being of the tripartite security pact among the US, the UK and Australia or AUKUS, renders important the concept of VUCA; volatility, uncertainty, complexity and ambiguity. VUCA has its origins in the disciplines of Marketing and Business Studies, but it could best describe the current state of international politics from particularly the perspective of the middle income, lower middle income and poor countries of the world or the South.

With the implementation of the pact, Australia will be qualifying to join the select band of nuclear submarine-powered states, comprising the US, China, Russia, the UK, France and India. Essentially, the pact envisages the lending of their expertise and material assistance by the US and the UK to Australia for the development by the latter of nuclear-powered submarines.

While, officially, the pact has as one of its main aims the promotion of a ‘rules- based Indo-Pacific region’, it is no secret that the main thrust of the accord is to blunt and defuse the military presence and strength of China in the region concerned. In other words, the pact would be paving the way for an intensification of military tensions in the Asia-Pacific between the West and China.

The world ought to have prepared for a stepping-up of US efforts to bolster its presence in the Asia-Pacific when a couple of weeks ago US Vice President Kamala Harris made a wide-ranging tour of US allies in the ASEAN region. Coming in the wake of the complete US troop withdrawal from Afghanistan, the tour was essentially aimed at assuring US allies in the region of the US’s continued support for them, militarily and otherwise. Such assurances were necessitated by the general perception that following the US troop withdrawal from Afghanistan, China would be stepping in to fill the power vacuum in the country with the support of Pakistan.

From the West’s viewpoint, making Australia nuclear-capable is the thing to do against the backdrop of China being seen by a considerable number of Asia-Pacific states as being increasingly militarily assertive in the South China Sea and adjacent regions in particular. As is known, China is contending with a number of ASEAN region states over some resource rich islands in the sea area in question. These disputed territories could prove to be military flash points in the future. It only stands to reason for the West that its military strength and influence in the Asia-Pacific should be bolstered by developing a strong nuclear capability in English-speaking Australia.

As is known, Australia’s decision to enter into a pact with the US and the UK in its nuclear submarine building project has offended France in view of the fact that it amounts to a violation of an agreement entered into by Australia with France in 2016 that provides for the latter selling diesel-powered submarines manufactured by it to Australia. This decision by Australia which is seen as a ‘stab in the back’ by France has not only brought the latter’s relations with Australia to breaking point but also triggered some tensions in the EU’s ties with the US and the UK.

It should not come as a surprise if the EU opts from now on to increasingly beef-up its military presence in the ‘Indo-Pacific’ with the accent on it following a completely independent security policy trajectory, with little or no reference to Western concerns in this connection.

However, it is the economically vulnerable countries of the South that could face the biggest foreign policy quandaries against the backdrop of these developments. These dilemmas are bound to be accentuated by the fact that very many countries of the South are dependent on China’s financial and material assistance. A Non-aligned policy is likely to be strongly favoured by the majority of Southern countries in this situation but to what extent this policy could be sustained in view of their considerable dependence on China emerges as a prime foreign policy issue.

On the other hand, the majority of Southern countries cannot afford to be seen by the West as being out of step with what is seen as their vital interests. This applies in particular to matters of a security nature. Sri Lanka is in the grips of a policy crunch of this kind at present. Sri Lanka’s dependence on China is high in a number of areas but it cannot afford to be seen by the West as gravitating excessively towards China.

Besides, Sri Lanka and other small states of the northern Indian Ocean need to align themselves cordially with India, considering the latter’s dominance in the South and South West Asian regions from the economic and military points of view in particular. Given this background, tilting disproportionately towards China could be most unwise. In the mentioned regions in particular small Southern states will be compelled to maintain, if they could, an equidistance between India and China.

The AUKUS pact could be expected to aggravate these foreign policy questions for the smaller states of the South. The cleavages in international politics brought about by the pact would compel smaller states to fall in line with the West or risk being seen by the latter as pro-China and this could by no means be a happy state to be in.

The economic crisis brought about by the current pandemic could only make matters worse for the South. For example, as pointed out by the UN, there could be an increase in the number of extremely poor people by around 120 million globally amid the pandemic. Besides, as pointed out by the World Bank, “South Asia in particular is more exposed to the risk of ‘hidden debt ‘from state-owned Commercial Banks (SOCBs), state-owned enterprises (SOEs) and public-private partnerships (PPPs) because of its greater reliance on them compared to other regions.” Needless to say, such economic ills could compel small, struggling states to veer away from foreign policy stances that are in line with Non-alignment.

Accordingly, it is a world characterized by VUCA that would be confronting most Southern states. It is a world beyond their control but a coming together of Southern states on the lines of increasing South-South cooperation could be of some help.

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Features

Hair care mask

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LOOK GOOD – with Disna

* Aloe Vera and Olive Oil:

Aloe vera can beautify your hair when used regularly. Aloe vera is a three-in-one plant and is the best medicine for health, skincare, and hair care, too. Using products, containing aloe vera as the hair strengthening agent, is quite expensive. So,treat your hair, naturally, by trying out these natural hair care masks.

Ingredients…

Aloe Vera Gel: 4-5 tablespoons

Olive Oil: 3-4 tablespoons

Egg Yolk: 2-3 tablespoons

Method…

In a bowl, mix well the olive oil (after heating the oil for eight to 10 seconds), the aloe vera gel and the egg yolk.

Apply the mixture on your brittle and dry hair with a hair brush and leave it for four to five hours. Apply it overnight for better results.

Wash off wish a mild shampoo later on.

When applied continuously, for eight to 10 days, your hair will definitely turn healthy and shiny, within no time

* Almond Milk and Coconut Oil:

Almonds are one of the amazing products when it comes to hair care. Try this mask to experience that salon affect you probably missed out.

Ingredients…

Almond Milk: 4-5 tablespoons

Egg White: 3-4 tablespoons

Coconut Oil:1-2 tablespoons

Method…

Mix all the ingredients well, in a bowl, and gently apply it on your hair with a brush.

If applied overnight, it is the best remedy for those with dry hair.

Wash off with cold water and a mild shampoo.

Use it thrice a week and if your hair is badly damaged a daily use for eight to 10 days improves your hair condition.

You can continue using it twice or thrice a week until you get the required results.

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Features

Amazing Thailand… opening up, but slowly

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I know of several holidaymakers who are desperately seeking a vacation in Amazing Thailand, and quite a few of them keep calling me up to find out when they could zoom their way to the ‘Land of Smiles!’

Last year, they were contemplating doing their festive shopping in that part of the world and were constantly checking with me about a possible shopping vacation, in early December, 2020.

Unfortunately, the pandemic proved a disaster to most tourist destinations, and Thailand, too, felt the heat.

However, the scene is opening up, gradually, and fully vaccinated travellers are now being given the green light to visit quite a few countries.

The Maldives is one such destination…and now Thailand is gradually coming into that scene, as well.

Several provinces, in Thailand, have reopened, through the Phuket Sandbox programme, and there are plans to reopen five more areas, including Bangkok, and Chiang Mai, Hua Hin, and Pattaya.

Now, hold on! Before you rush and make plans to head for Thailand, here’s what you need to know:

The plan is to reopen to fully vaccinated tourists, and, in all probability, they would be able to visit without having to quarantine. But, that has to be officially confirmed.

Currently, travellers to the provinces that have already reopened, such as Phuket, must quarantine before travelling elsewhere in Thailand. The new reopening plans are the most significant travel policy changes the country has enacted since the start of the pandemic.

Additionally, the Thai government relaxed some restrictions on gatherings in certain areas, including Bangkok, and that’s certainly good news for Sri Lankans who love to be a part of the Bangkok scene.

Bangkok is still in the ‘dark red zone,’ however — the strictest designation — that has restricted movement in the city for months.

The government has said that activities, such as shopping malls and dine-in services, in the dark-red zone, will be allowed to reopen – but no official dates have been mentioned, as yet.

Gatherings are now capped at no more than 25 people, an increase from just five people. A curfew still remains in place, however.

This October reopening (hopefully) will be launched alongside with the country’s newly adjusted ‘universal prevention’ guidelines against COVID-19 … including accelerating vaccination for the local population and formalising tourism campaigns.

Thailand will reopen in phases, I’m told: Phuket reopened in Phase One in July, while Bangkok is scheduled to reopen in Phase Two. Phase Three will reopen 21 destinations – hopefully at some point in time, in October – while Phase Four will begin in January 2022.

The measure comes not a minute too soon for local tourism operators as tourism is one of the nation’s largest gross domestic product drivers (GDP), and preventative measures against COVID-19 resulted in a massive blow to the industry.

Yes, we are all eager for the world to open up so that we can check out some of our favourite holiday destinations.

And, after staying indoors for such a long period, the urge to break free is in all of us.

I’ve been to Thailand 24 times (on most occasions, courtesy of the Tourism Authority of Thailand) and I’m now eagerly looking forward to my 25th trip.

But…I wonder if Amazing Thailand will ever be the same – the awesome scene we all experienced, and enjoyed, before the pandemic!

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