the Stark reality of statutory rape

6 November 2013 08:00 pm

Seat­ed on a bench in the far end of one of the busy hos­pi­tal cor­ri­dors, Ka­su­ni* seems to be ea­ger­ly await­ing some­one’s ar­riv­al as she nurses her two-week old in­fant. To a by­stand­er it would have seemed as if the in­fant was wig­gling in the warmth of her old­er sis­ter, if not for the ba­by-blue ma­ter­ni­ty jack­et and flo­ral-pat­terned cloth Ka­su­ni was wear­ing.

“The ba­by’s fa­ther is late to­day, won­der why…,” this 15 year-old moth­er tells me as she cocks her head through the crowd to get a bet­ter view.  Her ba­by’s fa­ther – a 21 year-old who cur­rent­ly works two jobs to sup­port his fam­i­ly, is sup­posed to bring her lunch dur­ing the af­ter­noon vis­it­ing hours.

Ka­su­ni had elop­ed with him at the age of 14.

“My rel­a­tives and even the doc­tors and nurses ask me why I put my­self in a sit­ua­tion that led me to hold a ba­by in­stead of books and dolls. . . It was be­cause I had no choice,” she tells me, as she ex­plains the ser­ies of events that led to her plight to­day.

Hav­ing brought up by her ma­ter­nal aunt since she was just three months, Ka­su­ni had nev­er known her pa­rents’ warmth ex­cept for the oc­ca­sion­al vis­its by her fa­ther – an ar­my sol­dier and a few ran­dom vis­its by her moth­er, who had mi­gra­ted for work. “When my pa­rents sep­a­ra­ted, they had hand­ed over my guard­i­an­ship to my aunt. When I was 13 my aunt of­fered ac­com­mo­da­tion to a 32 year-old man who they claim­ed was their fam­i­ly friend. Few months af­ter his ar­riv­al he star­ted mak­ing sex­u­al ad­van­ces to­wards me and sub­se­quent­ly, my aunt said I should con­sid­er mar­ry­ing him. . .”

When she re­fused, her aunt had con­tac­ted her moth­er to rea­son with Ka­su­ni to agree to the pro­pos­al. “I re­fused to agree be­cause he seemed like a per­vert. But my con­tin­u­ous re­jec­tions did not dis­cour­age either my aunt or that man . . . When their nag­ging be­came un­bear­a­ble I con­fi­ded in my ba­by’s fa­ther who was my neigh­bour at the time. He sug­ges­ted we elope; since it seemed like the on­ly es­cape and I agreed. . .”

In fear of be­ing dis­cov­ered by the Po­lice, they had hid­den at a friend’s hous­e lo­ca­ted out of Co­lom­bo. “We heard that my aunt had lodged a miss­ing-per­sons com­plaint with the Po­lice. So we feared of be­ing dis­cov­ered and handed over to the Po­lice. We star­ted liv­ing to­geth­er. . . I was well aware that I was not in love with him. But it was bet­ter than be­ing forced in­to a mar­riage with an old man. How­ev­er, the se­ri­ous­ness of my ac­tions did not oc­cur to me un­til I found out I had con­ceived,” Ka­su­ni con­fess­es.

The cou­ple had then moved to his an­ces­tral home. “I wan­ted to tell my moth­er about how scared I was, but since the day I re­fused to agree to my aunt’s pro­pos­al, she ig­nor­ed to answer my calls. I phon­ed my fa­ther and in­formed him. He blamed me for not in­form­ing him ear­li­er but what could he have done? Af­ter all, I saw him on­ly once a year, maybe two/ three times if I was lucky. . .” she says as tears welled un in her big eyes.

“I don’t re­gret hav­ing this ba­by but at the same time I will not ad­mit that I don’t re­gret be­ing dis­rup­ted of my ed­u­ca­tion and my dreams. . .” she says, as she wipes away her tears that had fall­en on the lit­tle pink cheeks of her daugh­ter, fast asleep in her arms.  

Ka­su­ni says now her life’s big­gest pri­or­i­ty is to get mar­ried and le­gal­ize her re­la­tion­ship with her daugh­ter’s fa­ther. “My big­gest fear is be­ing turned over to the Po­lice, par­tic­u­lar­ly since my aunt has al­ready made a com­plaint with the Po­lice claim­ing I am miss­ing. I re­al­ize that in my sit­ua­tion, all it takes for this fam­i­ly to break apart is just one com­plaint . . . I fear for the fu­ture of my child be­cause I don’t want this ba­by to go through the same trau­ma of los­ing her pa­rents and har­ass­ments as I wet through,” says this young moth­er heav­ing a sigh while add­ing, “I just wish there was a way for us to mar­ry with­out hav­ing to wait un­til I reach the mar­riage­a­ble age. . .”
Ka­su­ni has lit­tle choice but to wait since the Mar­riages (Gen­er­al) Or­di­nance law dic­tates both par­ties (un­less they are Mus­lims) should com­plete 18 years in or­der to reg­is­ter a their mar­riage. Her story al­so in­volves many oth­er le­gal im­pli­ca­tions if per­ceived strict­ly on le­gal terms as her part­ner could be charg­ed not on­ly with stat­u­to­ry rape but al­so kid­nap­ping, as she was be­low 14 years when she elop­ed. In ca­ses such as Ka­su­ni’s that in­volves young cou­ples is it fair for the law to be strict­ly ap­plied and the fam­i­ly al­lowed to be bro­ken apart? Or would mak­ing ex­cep­tions for such cou­ples to en­ter a mar­riage rec­og­nized by law or the im­po­si­tion of le­ni­ent pun­ish­ments, open flood­gates to a ple­thora of oth­er so­cial is­sues that would be det­ri­men­tal for the well­be­ing of young girls?






‘Ob­jec­tiv­i­ty of ex­ist­ing stat­u­to­ry rape laws, lost’ – le­gal prac­ti­tion­er
Pres­i­dent’s Coun­sel and crim­i­nal law ex­pert, Pra­san­tha­lal de Al­wis ex­press­ing his views to Dai­ly Mir­ror on ex­ist­ing stat­u­to­ry rape laws said he be­lieves they are eco­nom­i­cal­ly and eth­ni­cal­ly un­equal and nei­ther is its ob­jec­tiv­i­ty met.

“The ob­jec­tive of im­pos­ing a mar­riage­a­ble age and strength­en­ing stat­u­to­ry rape laws was to pre­vent young girls be­ing preyed upon by eld­er­ly men. How­ev­er, in the proc­ess the law­mak­ers had not an­tici­pa­ted sce­nar­ios that in­volve a young­er cou­ple who have been in a re­la­tion­ship,” he ex­plained.  

 “I can say with cer­tain­ty that ca­ses of stat­u­to­ry rape in­volv­ing up­per-mid­dle class/af­flu­ent fam­i­lies are al­most un­heard of. That does not mean it doesn’t oc­cur in such lay­ers of the so­ci­ety – just that they re­sort to meth­ods out­side the le­gal sys­tem to reach a sol­u­tion. The in­con­ven­ient truth is such set­tle­ments not on­ly lead to the non-im­ple­men­ta­tion of the stat­u­to­ry rape law among high­er stra­ta of the so­ci­ety but al­so leads to an in­crease in il­le­gal ac­tiv­i­ties such as abor­tions to be car­ried out with­out any age re­stric­tion what­so­ev­er,” he said.  

Speak­ing of oth­er harm­ful im­pacts on youth due to the law be­ing im­ple­men­ted with­out con­sid­er­a­tion of the cir­cum­stan­ces, he poin­ted out young boys who are sen­tenced of­ten get in­volved with crime rack­ets due to be­ing ex­posed to hard­core crim­i­nals while be­ing de­tained in re­mand pris­on. “As for the girls, most do not wish to re­turn to their pa­rents in fear of the stig­ma and be­ing rep­ri­man­ded. As a re­sult, they are put in homes or de­ten­tion cen­ters where there is no coun­sel­ing and lit­tle ef­forts are made to re­in­te­grate them in­to the so­ci­ety. Hence, in such ca­ses the ob­jec­tiv­i­ty of the law is not met.”

Com­ment­ing fur­ther he said, “The law is al­so eth­ni­cal­ly un­equal be­cause the mar­riage­a­ble age re­fer­red in the Gen­er­al Mar­riage Or­di­nance ap­plies on­ly to non-Mus­lims. There­fore, stat­u­to­ry rape law has al­so vio­la­ted con­sti­tu­tion­al pro­vi­sions which dic­tate that one can­not be dis­cri­mi­na­ted on the ba­sis of their eth­nic­i­ty.”  
How­ev­er based on a Su­preme Court rul­ing which sta­ted that ‘the High Court is not in­hibi­ted from im­pos­ing a sen­tence that it deems ap­pro­pri­ate in the ex­er­cise of its ju­di­cial dis­cre­tion not­with­stand­ing the min­i­mum man­da­to­ry sen­tence’ the Anu­rad­ha­pura High Court sought an in­ter­pre­ta­tion on the man­da­to­ry min­i­mum sen­tence un­der the 1995 Amend­ment to the Pe­nal Code with ref­er­ence to a case of stat­u­to­ry rape. Sub­se­quent­ly, many oth­er High Courts fol­lowed suit with con­cern to sim­i­lar ca­ses and a cer­tain frac­tion of le­gal prac­ti­tion­ers claim it has led to le­ni­ent pun­ish­ments.

“If the cir­cum­stan­ces of the cou­ple are con­sid­ered, im­pos­ing a min­i­mum man­da­to­ry sen­tence would serve in their best in­ter­ests. Even so, it is still not le­gal­ly bind­ing since it was not passed as a law in the par­lia­ment, but is on­ly an in­ter­pre­ta­tion of a SC rul­ing. There­fore, it is vi­tal that amend­ments are made to the pres­ent stat­u­to­ry rape laws in or­der to per­mit young cou­ples to en­ter a le­gal mar­riage, at least in ca­ses where their pa­rents have con­sen­ted and the sex­u­al re­la­tions were con­sen­su­al,” he add­ed.




‘Ex­cep­tions will make lit­tle
dif­fer­ence to the wel­fare of the youth’ – So­ci­ol­o­gist

How­ev­er, Se­nior Lec­tur­er at the Open Uni­ver­si­ty So­cial Sci­en­ces De­part­ment holds a different view as she states mak­ing ex­cep­tions would make lit­tle dif­fer­ence with con­cern to the wel­fare of the youth.

“In stat­u­to­ry rape ca­ses it is the girls who most suf­fer the so­cial con­se­quen­ces. She is treated as a bad or ‘loose’ char­ac­ter and in most ca­ses; the girl is forced to turn the re­la­tion­ship in­to a per­ma­nent ar­range­ment sole­ly to ap­pear re­spect­a­ble to the so­ci­ety. De­ci­sions on sex­ual­i­ty/mar­riage are tough a choice even for adults to make . . . It is al­so why it has become quite tough to de­ter­mine the lev­el of con­sent gran­ted by the vic­ti­mized girls,” she said.

Dr. Amar­a­sur­iya al­so adds that by mak­ing ex­cep­tions in ca­ses in­volv­ing young­er men, it could al­so send out the wrong mes­sage to the so­ci­ety. “Even old­er men have got­ten away with stat­u­to­ry rape as a re­sult of be­ing le­ni­ent on the pun­ish­ment. Prov­ing rape it­self is quite tough in Sri Lan­ka and mak­ing ex­cep­tions would on­ly pro­vide fur­ther lee­way for per­pe­tra­tors to es­cape scot-free.”

Speak­ing fur­ther she said, “There is plen­ty of evi­dence glob­al­ly to safe­ly de­ter­mine that ear­ly mar­riage leads to neg­a­tive con­se­quen­ces, par­tic­u­lar­ly for young wom­en. Even with con­cern to the study we car­ried out lo­cal­ly in­volv­ing some 81 ca­ses of teen­age mar­riages/co­hab­it­ing, none of the girls were bet­ter off – they were pov­er­ty-strick­en, ed­u­ca­tion dis­rup­ted and some were even sub­jec­ted to do­mes­tic vi­o­lence. There­fore, what is re­quired is a de­vel­op­ment in child pro­tec­tion serv­ices as well as en­sure that the lives of youth in­volved are not dis­rup­ted.”





*Name has been changed to protect identity

The law should not be changed to al­low ex­cep­tions Na­tion­al Child Pro­tec­tion Au­thor­i­ty (NCPA) Chair­man, Anoma Dis­snayake speak­ing to Dai­ly Mir­ror said she will not ad­vo­cate any changes to the ex­ist­ing stat­u­to­ry rape laws to make ex­cep­tions to any ca­ses, ir­rel­e­vant of the cir­cum­stan­ces of the cou­ple in­volved. “If we al­low young girls and boys to take sex­u­al ac­tiv­i­ty and sex­ual­i­ty so light­ly by al­low­ing such cou­ples to mar­ry through mak­ing an ex­cep­tion, so many oth­er so­cial is­sues would arise. They would not be aware of how to lead a mar­riage life, which would in turn lead to se­vere com­pli­ca­tions in their lives and that would on­ly be the tip of the ice­berg,” she said add­ing, “Chang­ing laws is not the an­swer to young cou­ples who put them­selves in such sit­ua­tions. What should in­stead be done is to as­pire for much more in life, cre­ate at­ti­tude changes in the minds of the youth as well as the so­ci­ety.”