For less cumbersome and more victim-friendly laws

13 November 2017 12:15 am - 0     - {{hitsCtrl.values.hits}}

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The laws on rape in Sri Lanka were amended by the Penal Code (Amendment) Act No.22 of 1995. According to former Human Rights Commissioner Dr. Prathiba Mahanamahewa the amendment was a result of Sri Lanka ratifying the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. However, he pointed out that though the laws were in place, the procedure to prove a case was cumbersome, resulting in the denial of justice.   
He said though the intention of Parliament when drafting and amending the law was to impose the maximum punishment, fine and compensation, thereby protecting women’s rights, this intention has been subverted by the existing loopholes.   


The Loopholes

Dr. Mahanamahewa stressed that the procedure did not support the law as stated in the penal code. “It takes a longtime for the police to complete their investigation and file the B report. If a child is born being conceived by rape, by the time the case is taken up by the High Court, the victim does not want to proceed with the case,” he said and added that usually the case comes up before the High Court only after six or seven years. 
“So the woman does not proceed with the case considering the best interests of her child,” Dr. Mahanamahewa said and added that the case should be ideally taken up within six months and completed. “You can have a special court, a special high court sitting, a jury system, or a trial-at-bar, and complete the case,” he said. 
  
Dr. Mahanamahewa said when the police recorded a victim’s statement, the police had a tendency to use technical words whereas the woman uses the jargon she is familiar with. 
“After many years when the case comes up before the High Court and when you cannot remember what you have said, the cas will be against the plaintiff,” he said and pointed out that the victim is harassed further at the cross examination. “I have seen several cases where the woman has fainted. In the case of a rape of a child, the National Child Protection Authority video records the testimony of the child. But how many cases are handled in a month.”  
The Evidence (Special Provisions) Act (No. 14 of 1995) states that the party proposing to tender such evidence should give notice to the opposing party a list of such evidence not later than forty-five days before trial. Within fifteen days of the receipt of such notice the receiving party can apply to the party giving such notice, to be permitted access to the evidence. “If they request access to a device you must give it, but practically these things do not happen. If you want to prove your case through CCTV evidence you need to know who operated the machine, whether the machine has been manipulated or scenes deleted. There should be an affidavit. But in automatic devices you can’t get an affidavit,” Dr. Mahanamahewa said.   


Infrastructure

“Every police station has a desk for women and children-related matters. There is a child probationary officer, childcare officer and child welfare officer at every divisional secretary’s office. There are international NGOs. Then we have the Probation Department. Why can’t they come up with a national policy to work together and minimize rape?” he asked. “Then we have the Victims of Crime and Witnesses Protection Act.There is an Authority set up. But how many victims have gone there? Do victims have the knowledge as to what type of relief they can get? Whether it’s financial relief or shelter?”  


Contradictary evidence  

Dr. Mahanamahewa said when proving a rape case there should be a report from the government analyst and the Judicial Medical Officer. “Sometimes these don’t corroborate with each other,” he said.   


Social Concerns

He said the attitudes prevalent in society worked to the detriment of the victims. “Though there is a law in place families of victims often do not accept the victims. Society blames her and her family ignores her.”  
He said though the law allowed consensual sexual intimacy when between 16 and 18 years, the general law did not allow marriage for those under 18. “Then for two years who will look after the woman and the baby if she conceives?” he asked and pointed out that in cases where the family members were the perpetrators the cases usually did not proceed. Hence the number of rapes is much higher than the numbers reported.   
Dr. Mahanamahewa said there were ample instances where the girl’s uncle, father or a close relative committed the rape. “In case the man is the breadwinner, if he is sent to prison his family will become destitute,” he said. “This fear prevents them making a complaint as well. “So who protects these victims? You must protect them financially as well.”  
“In a case involving an underworld kingpin and drug dealer in Kelaniya, the woman was taken away forcibly and raped. When the case was filed the suspect paid a large amount of money and this resulted in the victim not giving evidence. So where is justice? If the victims do not come and give evidence you must summon them and record the evidence ex-parte,” he said.  
Dr. Mahanamahewa said in certain instances family members urged victims to come to a settlement because a court case would attract attention and lead to social disgrace.  
“Then there are silent rapes, where consent is obtained through fraud and lies. Then you can go for a seduction case before the District Court,” he said. “It is extremely rare for a rape case to proceed till the Supreme Court.”  


Social Media

Dr. Mahanamahewa said there were more than 5,000 complaints on matters related to social media and sexual abuse. “They first become friends and ask for nude photos, and then use blackmail,” he said and added that this resulted in suicide. “In one case the woman informed to the Mirihana police and the photos were released on social media as a consequence. Finally the woman did not want to proceed with the case.”  


Rights of the Accused  

There are instances when false charges are brought up. Article 13(5) of the Constitution states that every person is presumed innocent until proven guilty. “You must give the defendant a chance to defend through a fair trial, but these proceedings should not take too much time,” Dr. Mahanamahewa said.   


Recommendations  

He made two principal suggestions with regards to the Penal Code and the Criminal Procedure Code. “We must focus on compensation. There is no minimum compensation stated in the Penal Code. There must be a set of guidelines prepared by the Judicial Service Commission for judges. At the moment the amount for compensation depends on the discretion of the judge,” Dr. Mahanamahewa said.  
Secondly referring to the Criminal Procedure Code he proposed that there should be a procedure to accept the original CD, rather than the tedious procedure laid down and suggested that there could also be a separate unit at the Attorney General’s Department for matters regarding abuse of women and children so as to expedite the cases.   
“The State must look after the welfare of the victims. Sometimes they are burdened with a baby. They should be counselled. The social service department should look into their affairs. There should be awareness on sex-education,” he said.   

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