Rape is forced, unwelcome sexual intercourse. It is a grave and inhumane act perpetrated against women and girls, which can have serious physical, psychological, emotional and economic repercussions. The experience is devastating not only because of the level of violence to her body, integrity, personal security and her self esteem and dignity but also the social stigma that surrounds the experience.
According to Section 363 (e) of the Penal Code as amended by Act, No. 22 of 1995, in cases where the girl is below the age of 16, sexual intercourse with consent also constitutes rape. Proof of the act of intercourse is sufficient to prove rape.
In the case of Muslims, the law on statutory rape is not applicable to a person legally married under the age of 16 years who engages in sexual intercourse with her husband. Since the legal age of marriage is now 18 years for all Sri Lankans except Muslims, this exception is only applicable to Muslims.
According to Section 364 (2) (a) of the Penal Code as amended by Act, No. 22 of 1995, custodial rape can occur under the following instances:
- Where a public officer or a person in a position of authority ‘takes advantage of his official position’ and commits rape.
- Where a person on the management of a custodial home, or women’s or children’s institution, or hospital, ‘takes advantage of his position’ and commits rape.
The Penal Code does not use the term custodial rape, but the serious nature of this offence is recognized in the minimum mandatory sentence of ten (10) years imprisonment not exceeding twenty (20) years imposed along with a fine and compensation to be paid to the victim-survivor.
Things You Need to Know about Consent
- Consent is a process – it must be asked for every step of the way, if you want to move to the next level of sexual intimacy. Consent maybe given to a certain level of sexual activity but at any point you have the right to say no.
- Consent is never implied and cannot be assumed – just because you are in a relationship does not mean you have consented to have sex.
- Consent is sober – a person who is intoxicated cannot legally give consent. If you are too drunk to make decisions and communicate with your partner, you are too drunk to consent.
- Consent is verbal – the absence of a “no” doesn’t mean “yes”.
- Consent is mutual – both people should be involved in the decision to have sex. Even if one partner does not wish to have sex, then there is no consent.
- Communication, respect, and honesty make sex and relationships better.
Why is Consent Important?
- Asking for and obtaining consent shows that you have respect for both yourself and your partner.
- It questions traditional views about gender and sexuality.
- It eliminates the entitlement that one partner feels over the other. Neither your body nor your sexuality belongs to someone else.
- It is normal and healthy for women to expect to be included in the consent process.
Names have been changed to protect the identity of the individuals.
A man known to Surangi’s family, Dixon, came to her house one day and asked her for some water to drink. She was alone at the time. As she bent to pour the water from the pot that was on the floor of the kitchen Dixon, who had followed her to the house held her by her hands, pushed her into a room, and had forcible sexual intercourse for about 20 minutes. She took another 30 minutes to regain her composure. She was just 14 years old.
When her younger brother returned home she sent him to fetch her mother who plucks tea in a nearby estate. The mother came with her father who was working as a casual labourer.
By the time her parents came she had washed herself thoroughly, as if to clean away the shame she felt. When the parents were told of the incident they went to the Ingiriya police station in a three wheel taxi. On the way Surangi showed Dixon to her parents but he ran away when Surangi’s father got down to confront him.
The police recorded Surangi’s statement and told her to go to hospital where she stayed for two and a half days. After coming home she refused to go to school.
The police went to the suspect’s house twice or thrice and informed his sister to send him to the police station. He never came and up to now he has not been apprehended. The police do not appear to be pursing the matter.
Sri Lanka Law Reports 393, Vol. of 2000The accused in this case was indicted in the High Court of Colombo under two counts. In the first count he was indicted with the abduction of a girl, in order that she may be forced or seduced to have illicit intercourse, an offence punishable under Section 357 of the Penal Code. In the second count he was indicted with having committed rape on the girl, on the said date, an offence punishable under Section 364 of the Penal Code. The learned High Court Judge after trial convicted the accused on both counts and sentenced him to a term of two years rigorous imprisonment on the first count and to a term of 10 years rigorous imprisonment on the second count, both sentences to run concurrently. In addition the accused-appellant was ordered to pay a fine of rupees one million with a default term of two years rigorous imprisonment. It was further ordered that out of the said fine of rupees one million a sum of Rs. 900,000 be paid to the prosecutrix as compensation. The Court of Appeal later acquitted the accused on the ground that absence of consent to intercourse has not been proved.
Court of Appeal Minutes of 23rd January 1996, pp. 11-12 (Shyamala & Mario Gomez, Gender Violence in Sri Lanka; From Rights and Shame to Remedies and Change, CIDA: Colombo, 1999)In this case, a four year old child was raped, in the afternoon, by someone known to the child. The accused was identified solely by the evidence of the child. Because the child was only four years old, the trial judge had instructed the jury that it was unsafe to convict the accused on the uncorroborated or unconfirmed evidence of the victim-survivor. The Court of Appeal held that since the incident took place in the afternoon, and the accused was known to the child previously, it was sufficient opportunity for identification. The Court of Appeal affirmed the conviction.
Frequently Asked Questions
CAN I REPORT THE INCIDENT TO THE POLICE EVEN IF I HAVE NO PHYSICAL INJURIES?
- Yes! Sometimes cases of sexual violence do not result in physical injuries. The lack of such injuries should not deter you from reporting.
- In cases of rape injuries can be internal and not visible. Many hospitals have special equipment that can detect such hidden injuries.
- It is important to get medical care and to be tested for sexually transmitted infections and pregnancy, even if you think you aren’t injured.
WHAT IF I NEED TIME TO THINK ABOUT WHETHER I WANT TO PURSUE PROSECUTION?
Understandably, many people aren’t ready to make the decision about prosecution immediately after the crime takes place. It is normal to want time to think about the decision and talk it over with friends and family. If you think you might want to pursue prosecution, but have not decided for sure, we recommend that you make the police report right away, while the evidence is still present and your memory is still detailed. The Attorney General will decide whether or not to pursue prosecution. It is unusual for cases to proceed without the cooperation of the girl/woman alleging rape.
THE OFFENDER GOT SCARED AWAY BEFORE FINISHING THE ACT. CAN I STILL REPORT IT?
Yes. An attempt to commit sexual violence is still a serious crime and should be reported. Violence can be violence that is actually inflicted or even an attempt at causing physical, sexual, emotional/psychological violence.
I KNEW THE OFFENDER PERSONALLY AND INVITED HIM/HER IN. CAN I STILL REPORT IT?
Yes. In most cases the victim-survivors know their attacker. And the fact that you were voluntarily together, or even invited him/her home with you, does not change anything.
- It is very important to confide as soon as possible in a close friend or family member who can support you. Women who have been raped should always report the incident, and receive health and psychological support.
- Obtain a medical examination as soon as possible from an authorized medical officer. The medical officer has a duty to collect hair, body fluids, fibers and other evidence, if any. Medical officers have a duty to report any incident of suspected rape to the Judicial Medical Officer (JMO) and Police.
- Make a complaint to the nearest police station.
- Inquire whether the police station has a Women and Children’s Desk (Service Providers) or ask for a woman police officer if you prefer speaking to a woman instead of a male constable. Make sure all details of the incident are covered.
- Ensure that you read the statement before signing it.
- In addition to taking a statement, police will collect physical evidence and take statements from witnesses if there are any.
- The police interview may take several hours, depending on the circumstances of your case. Some questions may be intrusive, and the officer may go over the details of your attack several times. The extensive questioning is often justified by the need to get every detail down precisely, to make the strongest possible case against the perpetrator.
- It helps to write down every detail you can remember, as soon as possible, so you can communicate the details to the police.
Time limit to report to the police
- In the case of sexual violence, the sooner the crime is reported and evidence gathered, the stronger the case.
- Always report the crime as soon as possible. If you are unsure of what happened to you constitutes a crime, report it first and clarify the matter with the police or any support organization. Click for Service Providers.
- In the case of a crime, twenty (20) years is the maximum legal limit given to report a crime.
Law on Rape
The law on rape is found in Section 363 of the Penal Code as amended by Act, No. 22 of 1995.
- A man who has sexual intercourse with a woman without her consent is guilty of rape.
- Penetration is the only requirement to establish sexual intercourse. Ejaculation is not necessary.
- Physical injuries and evidence of a struggle is not essential to prove that sexual intercourse took place without consent.
- A husband is only guilty of rape if the wife is judicially separated from him. However a husband may be held liable under the Prevention of Domestic Violence Act for such sexual violence against his wife. Read the Prevention of Domestic Violence Act.
- It is rape if a man has sexual intercourse with a woman of unsound mind.
- Where a man engages in sexual intercourse with a female under the age of 16 years he is guilty of rape, regardless of consent. This is referred to as statutory rape.
- This law is not applicable to a woman married below 16 years and above the age of 12 years and engages in sexual intercourse with her husband while not separated legally. This applies to Muslims only since 18 is the minimum age of marriage applicable to all other Sri Lankans.
- Even in cases where it appears that sexual intercourse with a woman or girl over 16 years took place with consent, it still amounts to rape if:
- A man obtains consent by use of force or threat or intimidation, or by putting her in fear of death or hurt.
- A man obtains consent while she is in detention i.e. custodial rape.
- A woman is given alcohol or drugs by perpetrator or by some other person, and is intoxicated, even if she
- consents to sexual intercourse under such condition, such act amounts to rape.
- A man obtains consent by pretending to be the husband of the woman in question.
Proof of Rape
A woman is usually raped when others are not present and there are no witnesses to prove it. But there are other ways of proving rape. These are:
- Injuries to the genital area or other injuries if the man has used violence (need not be external)
- Torn clothes that can prove that sexual intercourse was without consent
- Victim survivor’s description of the accused made to the medical officer at the time of examination
- Any recordings (audio or visual), if taken through mobile phones etc.
- DNA evidence of the perpetrator such as semen, hair, blood found on the victim-survivor
- Previous threats by the perpetrator directed towards the victim-survivor on other occasions, and third party testimonies to support the same, if any
If a woman is raped and the offender is charged with rape, she has to prove in court:
- The identity of the man who is accused of committing the crime
- Identify all the men involved in case of gang rape. If all the men cannot be identified it may be possible to
- identify them by other evidence
- That the woman was actually raped
- That the woman did not consent to the act
Some difficulties in getting a conviction
- Gender bias in law of evidence
- Aggressive cross examination
- Discriminatory rules of evidence
- Difficulty of proving absence of consent
The law on court procedures and practice sometimes work to prevent women from obtaining justice. The absence of consent of the woman or girl is crucial to proving the crime of rape and therefore she will face aggressive cross examination on this issue. In cases of statutory rape however consent is not crucial as the prosecution only has to prove that sexual intercourse took place with a child below 16 years, except in case of married Muslims.
In a situation of custodial rape where the woman is placed under the power or authority of the alleged rapist, absence of consent becomes difficult for the prosecution to prove. Legal experts have expressed concern over this issue and propose the Indian approach to a shift in the burden of proof in cases of custodial rape where the defence is required to prove express consent to intercourse by the woman or girl. (Violence, Law & Women’s Rights in South Asia. Savitri Goonesekere (Ed). SAGE Publications: 2004) The woman’s character and the fact that she willingly had intercourse previously with other men are not relevant to the crime but bias in rules of evidence may in fact result in evidence being led on this subject.
What is the Punishment for Rape?
- Rigorous imprisonment of at least seven (7) years which may extend to a maximum of twenty (20) years with fine.
- The perpetrator will also be ordered to pay compensation of an amount determined by the court to the victim-survivor for injuries caused. Injuries do not have to be physical.
- In the following instances the minimum punishment for rape would be rigorous imprisonment for not less than ten (10) years.
- Where a public officer or a person in a position of authority takes advantage of his official position and commits rape on a woman in his officially custody or wrongfully restrains and commits rape on a woman.
- Where a member of the management or the staff of a remand home or other place of custody established by or under law, or of a women’s or children’s institution (an institution for the reception and care of women and children howsoever described), takes advantage of his position and commits rape on any woman inmate of such remand home, place or custody institution.
- Where a person on the management or staff of a hospital takes advantage of his position and commits rape on a woman in that hospital.
- Where a man commits rape on a woman he knows to be pregnant.
- Where a man commits rape on a woman who is under eighteen years of age.
- Where a man commits rape on a woman who is physically or mentally disabled.
- Where gang rape occurs. Gang rape occurs where the offence of rape is committed by one or more persons or group. Therefore, it is sufficient that only one person engaged in the actual act of sexual intercourse as long as the others in the group abetted in the commission of such offence.
- The minimum punishment for rape will be rigorous imprisonment of not less than fifteen (15) years where the rape victim is less than 16 years of age and is the perpetrator’s:
- Daughter/ granddaughter
- Adoptive daughter/ adoptive granddaughter
- Sister/ half sister/ adoptive sister
- Niece/ half niece/ adoptive niece
- Step daughter/ step granddaughter
- Failure to pay compensation as ordered by the court will result in an extension of the term of imprisonment by a maximum of two (2) years.
The Supreme Court has declared that minimum sentences are not applicable and the courts may exercise discretion in sentencing. Rape sentences against perpetrators are now sometimes suspended so the perpetrator may not go to prison. This position is considered unsatisfactory and there are arguments for seeking guidelines for courts on sentencing in rape cases.The trial process is often time consuming, with some cases being heard for many years before a verdict is given. The victim-survivor may also be required to go over the facts and details of the incident several times, particularly during cross examination, which can be intrusive, insensitive and highly distressing. Due to the serious emotional, psychological and economic repercussions to the victim-survivor, the ACT NOW website is hopeful that a more gender sensitive stance is adopted by the judiciary and legal system towards sexual offences in future.