Proposed Penal Code amendment and threat of promotion of sexual abuse of children – VI

by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development
(Part V of this article appeared in The Island of 15 June 2023)

Fallacy of the Argument raised by the State in support of the Bill

The main argument raised by the petitioners against the Bill was: (a) that the amendments proposed by the Bill would result in removing the safeguards provided in Ss. 365 and 365A for the protection of children and those under 16 years of age, thereby creating space for exploitation of children and leaving a lacuna in the enforcement of the law relating to offences against children; (b) the enactment of the Bill would be contrary to the provisions in Article 27(13) which provides that ‘The state shall promote with special care the interests of children and youth, so as to ensure their full development, physical, mental, moral, religious and social, and protect them from exploitation and discrimination.’; (c) as the upper guardian of children, the Court is required to act in the best interests of the child declaring that the Bill is violative of Article 12(1).

In response to the arguments of the petitioners’ Counsel, the Additional Solicitor General Haripriya Jayasundara, PC, submitted (a) that women and children were the focus of the amendments introduced to the PC in 1995; (b) while amending Ss. 365 and 365A by increasing the punishment where one party was a person below the age of sixteen, with S. 365B it has introduced a new offence titled ‘grave sexual abuse; (c) that the amendment introduced to S, 365B by the Penal Code Amendment Act No. 29 of 1998 specifically provides that consent with regard to any sexual conduct constituting grave sexual abuse is immaterial where the offence is committed in respect of a child below the age of 16; (d) that in the event the conduct of any person does not fall within the definition contained in S. 365B, S. 345 of the PC dealing with sexual harassment could be resorted to in order to protect children against any unwelcome sexual advances.

Her position was that no lacuna in law will be caused by the amendments proposed in the Bill, as the remaining provisions – S. 365B and S. 345 – of the Penal Code will provide adequate protection to the children against sexual abuse.

In coming to any decision, any Court will act on the material placed before the Court by the parties. It appears that the Court has acted on the submissions made by the Additional Solicitor General, unchallenged by the Counsels of the petitioners, when it came to the conclusion that ‘‘the contention of the petitioners is unfounded and without any legal basis.’’

Let us examine the amendments brought to the Penal Code in 1995 for the protection of children from sexual abuse and see whether what was submitted by the Additional Solicitor General (ASG) was the true state of the law.

This is the original S. 365 of the Penal Code: ‘’ Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.’’

· This was amended in 1995 by adding the clause shown below in italics, making it explicitly clear to the Police who are enforcing the law that it covers not only sexual acts conducted with animals, but also with men and women, and enhancing the penalties where the offence is committed on a child under 16 years.

Amended S. 365 of the Penal Code: ‘’ Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be punished with fine and where the offence is committed by a person over 18 years of age in respect of a person under 16 years of age, the offender shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.’’

· Increasing the punishment where one party was a person below the age of sixteen is not the only amendment introduced into S. 365 and S. 365A by the 1995 Amendments as submitted by the ASG. Two more practically important amendments were made in the law while increasing the penalties.

· The phrase ‘having carnal intercourse against the order of nature with any man, woman, or animal’ in S. 365 is intended to deal with persons having anal sex with any man, woman, or animal. As there was no definition of the offence in the Penal Code, and as the complaints of persons having carnal intercourse against the order of nature with animals or men were very rare, the Police who were enforcing the law had no clear idea about it.

· Prior to 1995, even in cases where foreign tourists had sexually abused children having anal sexual intercourse with them, the Police had filed action against them for committing acts of gross indecency, an offence punishable under S. 365A, and not for having carnal intercourse against the order of nature with them, an offence punishable under S. 365 of the Penal Code.

· The amendment brought to S. 365 of the Penal Code had the effect not only of increasing the penalties that can be imposed on offenders but also enabling the Police to understand that persons having carnal intercourse against the order of nature not only with animals, but also with other men and women can also be dealt with deterrent penalties under the provisions of S. 365.

· While enhancing the penalties for offences committed on persons under 16 years of age, the 1995 Penal Code Amendment made a significant change in the law, by making S. 365A gender neutral. Earlier only male persons committing an act of gross indecency on another male person was liable; S. 365A was amended by deleting the word male. Now both male and female persons committing an act of gross indecency on another male or female person is liable to be punished with the penalty laid down for the offence.

· In both offences – carnal intercourse against the order of nature under S. 365 and gross indecency under S. 365A – the act itself is an offence. Consent of the person on whom the act is committed or the participants in the act is immaterial.

The original S. 365A of the Penal Code:

‘’Any male person who, in public or private, commits or is a party to the commission of, or procures or attempts to precure the commission by any male person, of any act of gross indecency with another male person shall be guilty of an offence and shall be punished with imprisonment of either description for a term which may extend up to two years or with fine or both, and shall also be liable to be punished with whipping.

Amended S. 365A

of the Penal Code : ‘’Any person who, in public or private, commits or is a party to the commission of, or procures or attempts to precure the commission by any person, of an act of gross indecency with another person is guilty of an offence punishable with imprisonment for a term which may extend up to two years or with fine or both and where the offence is committed by a person over 18 years of age in respect of any person under 16 years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.’’

· There is no definition of any of these two offences in the Penal Code. However, one can get an idea about the comparative gravity of these two offences from the penalties laid down in the law. In the eyes of the law, acts of carnal intercourse against the order of nature is a much more serious, condemnable offence punishable with imprisonment for a term extending up to ten years and a fine.

· Compared with the offence of carnal intercourse against the order of nature, gross indecency is a much less serious offence punishable with imprisonment for a term extending up to two years or with a fine. The court can release a convicted offender with a fine only, without imposing any jail sentence.

The four sections – S. 365, S. 365A, S. 365B and S. 345 – are intended to deal with four different types of acts of sexual conduct.

(a) S. 365 deals with acts of carnal intercourse against the order of nature with any man, woman, or animal. S. 365 is intended to deal with anal sex or sexual acts of similar nature.

(b) S. 365A deals with acts of gross in decency committed by a person with another person, in public or private. S.365A is intended to deal with normal male or female homosexual acts. (To be continued)