Rape is no trivial crime, in the eyes of the law or morals. Whereas penal law clearly defines each aspect of the crime of rape, it has also specified certain offences as punishable by law, which fall within the ambit of this crime. Statutory rape, as specified by law, is inter alia, one such offence. Statutory rape refers to sexual relations involving someone below the ‘age of consent.’ People below the age of consent cannot legally consent to having sex. This means, sex with them, by definition, violates the law. The Age of Consent in Sri Lanka is 16. It is the minimum age at which an individual is considered legally old enough to consent to participation in sexual activity. Individuals aged 15 or younger in Sri Lanka are not legally able to consent to sexual activity, and in such cases, the consent of the victim is considered to be irrelevant.
The legal background
In terms of section 363(e) of the Penal Code, sexual intercourse with a woman under 16 years of age is rape whether committed with or without the consent of the woman. The provision is based on the legal principle that a girl below 16 years has no legal capacity to grant consent to sexual intercourse. Section 364(2) (e) provides for the imposition of a minimum sentence of 10 years imprisonment for those convicted of rape where the woman is under 18 years of age.
The proviso to that section vests discretion in court to impose a lesser sentence where the offence is committed in respect of a person less than 16 years of age if the offender is under 18 years of age and the intercourse is with the consent of the person. Here, the proviso refers to consent of a girl under 16 years, although section 363(e) recognizes that a girl under 16 years has no capacity to grant her consent to sexual intercourse. This is where the law contradicts itself.
Where a young boy engages in sexual intercourse with a girl less than 16 years, and is convicted of rape, the court has no discretion to impose a sentence which is less than the minimum mandatory sentence even if there are circumstances that may justify the imposition of a lesser sentence.
The imposition of a minimum mandatory sentence on the young offender, in such circumstances, may not meet the ends of justice.
Therefore, the question that arises is whether the court should have a discretion to impose a lesser sentence in cases of statutory rape, in circumstances such as, where the persons engaging in sexual intercourse are young, and there is evidence of an intention to continue the relationship.
The social background
Adolescent sex in Sri Lanka sometimes, combined with cohabitation and pregnancy is a social reality. The concept of a “customary marriage” is being developed to justify the recognition of underage cohabitation or marriage. In a recent unreported case in the Court of Appeal, a man of the Adivasi community was acquitted of statutory rape on appeal on the ground that he had married the girl according to community values.
Often seen in rural areas than in urbanized areas, children entering adolescence seem to choose a life partner at relatively early ages. Their parents also approve of this, as they think it is convenient for them to have a son-in-law sooner to take care of their paddy fields or other harvests of crops.
These young couples are seen together engaging in work on the family paddy fields, and sometimes they attend school together, once the harvesting seasons are over.
These couples live together with mutual consent until both of them arrive at the minimum age of marriage, which is 18 years, to legalize their union.
A major loophole seen in the law is where a girl can consent to sex after she attains the age of 16, but has to wait two more years to get married.
Girls from rural areas might get pregnant due to family pressure or lack of family planning knowledge before they become 18 and register their marriage. These women are cornered and laughed at, when they go to maternity clinics or hospitals, and are named as shameless girls or girls with a bad character. The gap between the attitudes of the so called civilized and uncivilized parts of society is clearly reflected here.
When the legal framework does not complement the social setting or vice versa, it tragically affects the lives of such innocent women.
Is age just a number?
It is evident that the legal prohibition on child marriage and statutory rape in the penal law reforms do not appear to be understood by the authorities concerned, or at times, the judiciary.
Even after the changes made in the law in the 1995 Penal Code Amendments, the use of force is not a necessary requirement to prove rape, as rape is defined as having sexual intercourse with a girl over 16 years, without her consent, and statutory rape is a criminal offence, as well as the abuse of a girl under 16 years.
When she is below 16 years she is considered lacking in capacity to consent to sex.
Hence, it can be identified that a clear disparity between the laws and the actual practice does not go hand in hand.
The judiciary also seems to tend to give opinions that are not in line with the aspirations of society. This cannot be justified on the norm that the people of the state should be met with justice through the judiciary and the laws enacted.
Guided discretion
The truth is that law should be the means to an end, rather than an end in itself.
The aim of any law is to identify the requirements which are crucial to the development of a society and to nurture the interests identified in such a manner as to ensure the improvement of social conditions across the spectrum.
However, given the status-quo within Sri Lanka regarding the matter of statutory rape, it is evident that the legal background does not cover society and all its layers as a whole.
The recent incident in Anuradhapura regarding the Adivasi who was charged in court for statutory rape can be an example where a society cannot be structured in a manner that all of its spheres can be put into one framework.
This is where committing statutory offences can be contradictory with personal laws and minority cultures.
The imposition of a minimum mandatory sentence of 10 years on a young offender between 18 and 21 years, convicted of the rape of a girl under 16 years, in circumstances where the parties have engaged in sexual intercourse, and who have subsequently demonstrated their intention to sustain their relationship does not meet the ends of justice.
In such circumstances, the imposition of a lesser sentence can be justified and the court should therefore be vested with guided discretion to impose a lesser sentence. Also, other institutional reforms are necessary. They should also be made gender sensitive.
Such matters many people say, are things easily said than done. This is the reason why we should pay attention to such matters. Making laws without looking at the societal spheres comes with a cost. It may not seem as an imminent threat, but would arrive at its brink sooner than we think.
Gender-sensitivity is a trait of ample importance for our law reformers, for the time has arrived to see that age should not just be interpreted as a mere digit in the black letter law.