Bill to Amend Penal Code (Section 363 and 364 – Chapter 19) issued on 13 February 2024

Violence against Women:

Statement by members of civil society

We the undersigned individuals from civil society, including women’s rights activists, scholars and professionals, who have worked extensively on violence against women and girls from the 1990s to date, voice our strong opposition to the proposed amendments to the law on rape and sexual offences in the Penal Code (as amended extensively in 1995). We call for the immediate withdrawal of the proposed Bill.

The Bill must be withdrawn for the following reasons:

1. The complete misunderstanding and misinterpretation of the principle of “consent’’ of an underage girl, who is considered by the criminal law of our country, to be lacking in capacity to consent to sex.

The Penal Code as amended in 1995 gives the age of 16 years as the age threshold of capacity of a minor under 18 years to give consent to sex. The offence of “Statutory Rape” is defined in most legal systems as the criminal offence of having sex with an underage minor girl, who has no capacity to consent because she is BELOW that defined age threshold. This Bill is wrong therefore to propose a policy change that suggests that a girl under that age can “consent” to sex with an ADULT male under the age that the

Bill specifies arbitrarily as 22. The Bill is also wrong to LOWER the age of capacity to consent to sex from 16 years to 14 years.

We do not know how this policy was formulated, and it clearly ignores current realities in Sri Lanka on the high incidence of sexual abuse of minor children including girls, and the abysmal failures in law enforcement. This has in fact created a culture of impunity and even legitimacy for child sexual abuse. The age threshold of 16 years for sexual consent by a minor, was accepted in the 1995 amendments, because it conforms with an age at which a minor under 18 years acquires capacity for other acts such as release from parental custody, capacity to give consent to medical treatment, and now, to be legally employed. This age has been considered relevant in legal and medical scholarship. 16 years as an appropriate age for sex with consent has been recognised globally including in many countries in Africa and Asia.

Laws on statutory rape of girls (i. e., sex with underage girls) have been introduced in many jurisdictions to protect them from sexual abuse and exploitation. Such abuse has serious impacts on their health, including reproductive rights and health, and general development. There is the risk of school drop outs due to teenage pregnancy and the risk of contracting STDs including HIV.

We all know that child sexual abuse is rife in this country. It is reprehensible that this Bill is being presented as an amendment to the Penal Code at this time, when the challenge is to strengthen enforcement of the existing law, and protect children from sexual abuse and exploitation. The manner in which impunity for such abuse is being encouraged by lowering the age of consent of girls to 14 years, and then providing for suspended sentences for male perpetrators under 22, clearly points to a growing practice of ad hoc policy formulation according to agendas. What we need is coherent consistent law and policy reform that can address and impact usefully and resolve problems relating to violence against women and girls.

2. This Bill clearly contradicts the national policy of protecting the human rights of women and girls through the much-publicized proposed Gender Empowerment Bill and the National Policy on Women. Sri Lanka has obligations under international law, to uphold women’s and children’s rights, and conform to the women’s rights convention (CEDAW) and the child rights convention (CRC). The government of Sri Lanka will have to report to the monitoring committee of CEDAW and is currently preparing its next report. How will the government of Sri Lanka explain this extraordinary change of policy and law reform that violates commitments under that Convention and CRC?

3. The Bill proposes to amend Section 363, which currently covers rape of women and girls, to include male rape. When the Penal Code was amended in 1995, the offence of rape as a sexual offence perpetrated in a specific manner by a man against a woman or girl child was retained with some modifications. The offence of male rape was included in a gender-neutral offence of “Grave Sexual Abuse” that covered all OTHER acts of sexual violence against men and women, girls and boys.

We recognize that male rape can be a distinct offence within the present law in the Penal Code. However, the proposed amendment creates ambiguity that negatively impacts on the provisions of the current Section 363 of the Penal Code, which applies strictly to women. In order to maintain the specificity of the law on a crime experienced by women in a manner different to men, we must retain the current section 363.

We demand the withdrawal of this hasty, ad hoc and deplorable Bill, which changes the law and policy on sexual offences.

We also demand a transparent and consultative process of policy formulation and law reform, with the participation of diverse and relevant professionals including in medicine and law. Civil society organisations and service providers working in this area must also be consulted. We call for an evidence based and consistent approach in this very significant area of violence against women, child abuse and sexual violence.