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8-year-old grave sexual abuse victim gets justice after 18 years

28 July 2022 01:02 am - 18     - {{hitsCtrl.values.hits}}

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In Palawela Udaniriella, an 8-year-old girl became the victim of Grave Sexual Abuse committed by no stranger, but by her grandfather’s brother, a 62-year-old man. One day, she was called to his house when he was alone saying that he wanted to send her to the boutique, and was escorted to the kitchen where he abused her. The victim was left with mental trauma that was seen in the tears she shed before the trial judge 9 years later.   


The offence was initially alleged as rape, but after the victim’s evidence was led during the trial, the charge was amended to be under Section 365B (2) of the Penal Code, changing the nature of the offence to Grave Sexual Abuse. According to the evidence led by the victim, she was living with her grandparents who dwelled in close vicinity to the accused, and was abused at his home. The accused pleaded guilty to the amended charge of grave sexual abuse and was sentenced to 10 months of rigorous imprisonment and a fine of Rs. 500/- by the High Court of Rathnapura. The High Court Judge had also awarded compensation of Rs. 50,000/- and sentenced the man to imprisonment for one year if defaulted.   


The same year, the State appealed against the judgment of the High Court mainly on the ground that the sentence was illegal and inadequate. By Judgment given in 2017, the Court of Appeal enhanced the sentence to 7 years of rigorous imprisonment and a fine of Rs. 1000/-. The amount awarded as compensation by the High Court Judge of Ratnapura was affirmed.   


The accused then took the matter to the final appellate court of the country, the Supreme Court by appeal looking to challenge the decision of the Court of Appeal. Supreme Court granted leave to hear the accused on the question of whether the Court of Appeal had made an error in believing the sentence of the High Court to be illegal or inadequate.   


The Appeal was argued in April 2022 in the Supreme Court and Judgment was entered on the 31st of May 2022 written by Justice Padman Surasena where the Court of Appeal Judgment was unanimously affirmed by all Justices of the Bench.   

What is Grave Sexual Abuse?

Section 365B of the Penal Code entails the meaning of grave sexual abuse. Put simply, grave sexual abuse is the commission of any act on another person without their consent using genitals or other body parts or any other person’s body part, or any instrument. It does not amount to rape – which is defined under Section 363 of the Penal Code as sexual intercourse by a man with a woman without her consent. It falls short of rape in that the type of act imagined under grave sexual abuse is not penetration, but something less than that. The consent of a person below 16 years of age, or of unsound mind, or in a state of intoxication, or consent obtained by force is not considered real consent.   

What is the Punishment for Grave Sexual Abuse?

The point of the contest, in this case, was really the sentence imposed by the Judge of the High Court which was only 7 years rigorous imprisonment and a Rs. 500/- fine. Under Section 365B (2) of the Penal Code, the minimum punishment for an offender of grave sexual abuse is 7 years. The maximum period of imprisonment is 20 years. An offender must also be ordered to pay compensation to the victim determined by the court based on the injuries caused.   


Why the State argued that the sentence of the High Court was illegal because the sentence imposed by the High Court Judge was only 10 months, which is much lesser than the minimum term of imprisonment prescribed by law.   

Why did the High Court Judge impose a sentence of only 10 months? 

Several factors have been considered by the High Court Judge in imposing a lesser sentence. 
Among them are the old age of the accused, the fact that he was suffering from a heart ailment, the fact that he had not engaged in any violent activity, and the fact that 10 years had elapsed since the date of the commission of the offence, and the fact that prison authorities would have to bear expenses to look after the accused in prison.   

Court of Appeal Judgment 

The Court of Appeal observed that the sentence imposed by the high court was “highly inadequate”. The court observed that the tender age of the girl, the mental trauma undergone by her, and the position of trust held by the accused as an elderly relative of the girl among other considerations had not been weighed in by the High Court Judge and a substantially inadequate sentence of 10 months rigorous imprisonment has been imposed as a result. The sentence was enhanced to 7 years of rigorous imprisonment by the Court of Appeal seeking to impose the minimum punishment prescribed by law. 

Reason for Supreme Court to affirm the Judgment of the Court of Appeal

The Supreme Court discounted almost all facts taken into consideration by the High Court to impose a lesser sentence.   

Citing Basnayake A.C.J. in The Attorney-General Vs. H.N. De Silva, Surasena J quoted as follows:  
“In assessing the punishment that should be passed on an offender, a Judge should consider the matter of sentence both from the point of view of the public and the offender. Judges are too often prone to look at the question only from the angle of the offender. A Judge should, in determining the proper sentence, first consider the gravity of the offence as it appears from the nature of the act itself and should have regard to the punishment provided in the Penal Code or other statute under which the offender is charged.”


Thereby the decision of the Court of Appeal was upheld and the High Court judge was ordered to take immediate steps to implement the rest of the sentence on the accused.   

Is 7 years of rigorous imprisonment adequate under the law? 

Revisiting the punishment for Grave Sexual Abuse prescribed under the Penal Code, it is notable that in terms of section 365B(2)(b), where grave sexual abuse is committed on any person under 18 years of age, the prescribed minimum sentence is 10 years rigorous imprisonment and not 7 years. There is of course judicial precedent recognizing the imposing of sentences below the minimum mandatory sentence in exercising judicial discretion.

However, it appears that both the Court of Appeal and the Supreme Court have considered 7 years of rigorous imprisonment to be the minimum sentence in this case. Whether the minimum sentence for the offence committed on a person under 18 years has gone unnoticed by the judiciary or whether the old age of the man was considered in enhancing the punishment only up to 7 years and not 10 is therefore not clear.   

 

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  Comments - 18

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  • Zarook Cassim Friday, 29 July 2022 08:01 AM

    What worries us is not the Judgement, but why it took such a long time to try this case. Justice delayed is justice denied.

    BuffaloaCitizen Friday, 29 July 2022 05:06 PM

    and they further want to deny it by stating the perpetrator is 62y and is too old to go to prison. Therefore, if one commits a crime and can "hide" until he ages, then he can come out and a lenient sentence thereafter.

    Sangaralingham Friday, 29 July 2022 08:26 AM

    If children did not have the security within the family group what the hell going on.disgrace fear hatred rtc of bad scenes within society not to be tolerated

    Martin Milton Friday, 29 July 2022 04:08 PM

    The punishment really SHOULD have been 10 yr RI no less. Also the compensation of Rs 1000.00 is puny and most ineffectual. it should have been Rs 20,000.00 at least. It is because the sentences imposed are so very beneficial to the criminal that many of these crimes continue to be committed Hopefully Parliament WILL change this ASAP and implement far FAR more severe penalties to be imposed. MM

    Roisin Friday, 29 July 2022 04:35 PM

    This government has merged the ministry of women- and childaffairs with the ministry of education while the abuse, discrimination and hardship for them gets worse and worse. The status of children and women is very low comparing with developed countries.

    Rajan V Pillai Sunday, 31 July 2022 06:48 AM

    It is time to visit punishment for offences on Minors. Minors should be categorised into two categories 0 to 5 years infant - Death Penalty 5 to 9 years Child Life Term 9 to 12 Years Child 15 years 12 - 18 Teen 12 Years. If the age of offender is 60 years or more _ Death Penalty.

    Triple X Friday, 29 July 2022 08:50 PM

    Cut it off. No extra expenses to the tax payers.

    Dilshan Perera Sunday, 31 July 2022 12:51 AM

    Fine example of our kangaroo courts and cesspit judiciary! Shame! Lawyers, judges, magistrates and clowns..

    Dilshan Perera Sunday, 31 July 2022 12:51 AM

    Fine example of our kangaroo courts and cesspit judiciary! Shame! Lawyers, judges, magistrates and clowns..

    CITIZEN Monday, 01 August 2022 05:05 PM

    WHY NOT round up offenders at University Ragging?

    Mike Revere Tuesday, 02 August 2022 04:29 AM

    University ragging should be prohibited legally. Even country leaders being mostly male leave room for their own illegal activities

    Roisin Tuesday, 02 August 2022 09:06 PM

    To Citizen and Mike: you perfectly proof my comment. This article is NOT about ragging. It is about children- and women abuse in our everyday society. So why change the subject? Are students more important than poor helpless children and women? I know boys and male students get abused too. But for sure children and women have a very low status in this country.

    ghostlanka Thursday, 04 August 2022 11:31 AM

    They are all children of the future of this country. All deserve their right to freedom and justice.

    Veraan De Mel Thursday, 11 August 2022 08:37 PM

    He should have been hanged like in Saudi

    Cherath Friday, 19 August 2022 09:39 AM

    Rape and child abuse cases could surface many years later for many reasons. Shock, shame, fear of being further victimised and feeling of not being believed are just some. It's a crying shame the men dominated administration has pushed women's and children's affairs to a sub division. As a country with rich Buddhist heritage, every government must ensure maximum protection to all, including the majority - women with 53% of our population and the weakest- our children.

    Ranjan R was right about court system Monday, 22 August 2022 04:01 PM

    Disgusting of 62 old man to do that to eight year old relative. Shows the backwardness of our country when Ranjan R put in prison so quickly for pointing out fault of our judicial system because some fools felt insulted he spoke truly. And then others like this child goes 18 years before fairness is done. Again what Ranjan said about our judges sounds all too true, and sad he is still in prison.

    Moh Sleiman Wednesday, 24 August 2022 05:38 AM

    WHO ever trying to justify RAPE can be a very leneint sentance must go through the same with their MOTHER,SISTER ,WIFE OR DAUGHTER to realize the PAIN.

    Anne Karunaratne Sunday, 04 September 2022 01:53 PM

    Why did this case take so long in the first place??? Maximum punishment should be meted out for sexual abuse, irrespective of the gender of the victim and the age of the accused! He maybe an old man but he certainly didn't behave like one! Keep him in jail until he dies, no loss to anyone!


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