WOMEN AND CHILDREN AS VICTIMS OF CRIME :

THE SRI LANKAN PERSPECTIVE

Chandra Fernando
Deputy Inspector General of Police
Sri Lanka.

　

Introduction :

Hardly a day passes in Sri Lanka without it being heard that a crime has been committed on a woman or child. This is not a problem peculiar only to Sri Lanka but to all countries as well. Therefore, it is a global problem, which did not surface as a major issue until the last two decades of the 20th century. It is mainly due to women and children being accorded a subordinate status in their families and in the society in which they live that given rise to this problem. The subordinate status accorded to them is not only due to the age-old practices and traditional beliefs that women and children are inferior to men, but also due to the subordinate status which is recognized by the disabilities imposed upon them and the unequal treatment given to them by law. The majority of people do not seem to be aware that what affects women and children also affects the rest of the humanity and that no community can truly attain total development when a large segment of its members live in subordinate status. However, due to the growing concern for the issues affecting women and children, meaning full steps were taken by the international community in the late 1970’s in order to enhance their status.

In the preamble to the United Nations Charter equal rights to men and women are enshrined but no meaningful steps had been taken internationally, regionally and locally until a few decades ago to identify and arrest the problem of women and children being victims of crime. However, the United Nations took a significant step forward by declaring 1975 as the “International Year of the Women”. The General Assembly of the United Nations proclaimed 1985 as the “ International Decade of Women : Equality, Development and Peace”. Further, due to the growing demand for the issues affecting women to be addressed, the United Nations General Assembly in 1979 adopted the Convention on the Elimination of all forms of discrimination against women, which is commonly known as the “Women’s Bill of Rights”, and which came into force in 1981. From then onwards, violence against women emerged as one of the most pressing issues to be addressed by the International community. The issue of violence against women was again taken up in 1985 at the world conference held in Nairobi, at the world conference on human rights in 1993 which was held in Vienna and again in 1995 at the fourth conference on women held in Beijing.

At the world conference held in 1985 in Nairobi, Kenya, at which the progress during the decade was reviewed, forward-looking strategies were adopted for the advancement of women in the year 2000. At this conference the existence of gender-based violence and the situation where women became victims of crime were recognized. In 1993 at the conference on Human Rights held in Vienna once again the problem of violence against women was taken up for discussion. At this conference, due to the growing demand the setting up of international standards with regard to violence against women was discussed.

In March 1994 the General Assembly of the United Nations adopted the declaration on the elimination of violence against women. This declaration is not legally binding but it recognizes instances of violence against women in three spheres: in families and communities and violence condoned by state, including armed conflicts. The international conventions with regard to women’s issues, namely the convention on the elimination of all forms of discrimination against women (1979 CEDAW) and the convention against torture and other cruel, inhuman or degrading treatment and punishment (1984) have been ratified by the Sri Lanka Government. Furthermore, the women’s Charter (based on CEDAW) was adopted by the government of Sri Lanka in 1993 which indicates the government’s concern to protect women against violence. The Women’s Charter has declared that “the state shall take all measures to prevent the phenomenon of violence against women, children and young persons in society, in work places, in the family, as well as in custody .............” Thus it will be seen that the adoption of these conventions by the Sri Lanka Government has given the much needed impetus to enact laws and take preventive measures to combat and control/eliminate violence against women and children in Sri Lanka.

　

Violence against women:

Given below are the statistics for 1994 of the number of victims of grave crime:

1994 Grave Crime ? No. of victims :

Grave Crimes Male Female

1. Abduction 829 412

　

victims of grave crime. Of the total victims of abductions, approximately 1/3rd, grievous hurt 1/7th, hurt by knife 1/9th, homicides 1/6th, attempted homicide 1/6th and unnatural offence 1/5th were women.

　

Homicide ? No. of victims :

1994 1995 1996

Male Female Male Female Male Female

Homicide 1089 247 -- 180 1176 599

　

In 1996, of the total homicide victims, approximately above 1/3rd were women. Additionally, when considering the relationship of the victim to suspect, quite a number of them were spouses, cohabitants, parents, lovers, sons or daughters. Thus it will be seen that domestic violence has ended in homicide. The existing laws pertaining to these offences are quite sufficient to deal with them. However, convictions are rather difficult to obtain due to the relationship between victim and suspect as witnesses often do not come forward and give evidence.

Rape:

In Sri Lanka rape is considered as an offence not only against the person but also against the society, which upholds the sanctity of marriage. The police consider rape as a grave crime and according to the Penal Code rape is punishable with a maximum sentence of upto 20 years imprisonment. Rape was defined in the Penal Code before it was amended as sexual intercourse with a woman without the consent and against the will of the victim. If the consent is obtained by force or when under intoxication or of unsound mind, or if the victim is below 12 years of age, such consent will not serve as a defence.

Rape in Sri Lanka has been on the increase as will be seen from the statistics given below:

1988 1989 1990 1991 1992 1993 1994 1995 1996

291 373 369 374 371 386 518 542 716

From the statistics given above it will be seen that in 1988, 291 cases of rape were reported to the police as against 716 cases in 1996 which is a 150% increase. 100% reliance cannot be placed on the accuracy of police statistics because victims generally do not like it to be known that they had been raped due to the social stigma attaching to it, family pressure brought to bear on them and because of the mental anguish that the women have to face both at the police stations and in the courts, etc. Considering rape as a penal offence, it has a very low reportability level for the reasons stated above. Therefore the incidence of rape will be considerably higher than reflected in the Police statistics.

Furthermore, it has been noted from the cases taken to the courts that it is difficult to get a conviction as the prosecution has to prove the absence of consent on the part of the victim. In many a case it has been noted during trial that the victim, more often than not, is treated as having given her consent and she is humiliated by character-assassination by the defence. This has been one of the factors that dissuades victims of rape from coming forward and reporting to the police for action to be taken against the offenders. Before the amendments were made to the rape law the prosecution had to prove that the offence was committed against the victim’s will. Due to this reason the courts required evidence of injuries, etc. to show that force had been used. Therefore, in the absence of injuries, etc., the courts were reluctant to convict the rapists. Additionally, the courts in Sri Lanka in the majority of the cases, call for independent evidence to corroborate the victim’s version. Although the Sri Lanka Evidence Ordinance does not require a number of person to give corroborative evidence the courts insist on such evidence being produced.

Another reason for the reported increase of rape cases is the greater awareness of the law on the part of the public and the enthusiasm shown by the women’s organizations which provide free legal aid to victims and the assistance given to them at the relevant desk at police stations manned by women constables to receive complaints of rape. The recent amendment to the Penal Code has increased the statutory age of consent from 12 years to 16 years. This may be a contributory factor to the reported increase in the number of rape cases.

Criminal Force :

Assault or use of criminal force on a woman with the intent to outrage her modesty was an offence upto 1995. But this was not considered as a grave crime and it was not reflected in the statistics of the Police Department. Although it was regarded as a penal offence the police did not consider it as a serious offence and in many a case the police usually tried to mediate and bring about a settlement, where it was possible. It was only in a few case that the police prosecuted.

In Sri Lanka upto 1995 there was no offence termed sexual harassment. If there were any incidents of such a nature they were considered under the offence of criminal force. But the definition of the term sexual harassment has a wider application than criminal force. Sexual harassment of woman in public places such as railway stations, bus stands, work places, crowded environments, public transport, etc. was not considered as a penal offence before 1995. any such incidents, if reported to the police, were treated as petty complaints, some times under assault, etc.

Domestic Violence :

This is usually a hidden issue, which the police often treat as a petty complaint due to the persons involved being husband and wife, children or close relatives. If the violence is of a grave nature such as assault, then the police will proceed against the offender under the offence of simple or grievous hurt. The police do not view the incidence of domestic violence seriously because any punitive action will lead to the disruption of the family and have an unhealthy impact upon the children. Women who are being harassed also do not always report to the police because they are totally dependent on their husbands for their sustenance. Due to these reasons the police treat domestic violence as family squabbles.

Children as Victims of Crime :

In Sri Lanka it is widely accepted that parents have rights over their children and the society is concerned about protecting them. This notion gives the children a subordinate status. Due to this, there have been and there still are many instances where the children have been and are being abused by the adult members of their families as well as by the society. However, the first half of the 20th century witnessed the emergence in Sri Lanka of a child welfare policy, namely the Children and Young Persons Ordinance of 1939, the Adoption of Children’s Ordinance of 1941, the Employment of Women, Young Persons and Children’s Act of 1956, to name a few. These legal enactments were inadequate to protect the children from becoming victims of crime.

The exploitation of children through prostitution, pornography and other forms of sexual abuse could not be controlled through the legislation that had been enacted. Furthermore, although the Sri Lanka society concerns itself with the protection of children, the subordinate status given to them contributed to their exploitation. The children who are most prone to becoming victims of exploitation and crime come from families that the under-privileged and poor, where parents have been divorced/separated, where fathers have died, where mothers have to raise their illegitimate off-spring, and where parents are drug-addicts or alcoholics.

Child Prostitution :

This aspect of crime is virtually an invisible one since the Sri Lankan family is a closely-knitted unit, and sexual exploitation seldom comes to light. Statistics compiled by the police with regard to crime connected with children did not, until recently, reflect the extent of child prostitution. A research study done in 1980 on boy prostitution in Sri Lanka revealed that Sri Lanka is second only to the Phillipines for cheap child sex. According to this study, in 1980 the number of commercially-exploited boys had been around 2000. But a situation-analysis of women and children done in 1991 by UNICEF revealed that child prostitution had became a cause for alarm. It was estimated that 3000 to 30000 boys in the age group of 7 to 19 years were engaged in prostitution. In the past, prostitution by boys was unheard of in Sri Lanka. But the advent of the open economy in 1977 and the establishment of hotels and resorts for tourists mostly along the Western coastal belt gave rise to prostitution by boys. And those tourists who discovered that Sri Lanka was a paedophil’s paradise video-recorded their sex acts with boys and exhibited the cassettes in their countries. This encouraged people with paedophillic persuasions in those countries to visit Sri Lanka in large numbers. The “modus operandi” that has been adopted by paedophils in order to get a firm foothold in Sri Lanka is to help the families of the boy prostitutes to buy land and build houses, small hotels and guest houses where they could enjoy themselves without let or hindrance when they visit Sri Lanka for a holiday. With a view to attracting boy-prostitutes some of these paedophils also approach the principals and trustees of schools and provide them with sports equipments etc. This gives the impression that they are benefactors and philanthropists and assists them in engaging in their perverse sex activities, without let or hindrance from the people in the places they stay.

　

Child Pornography :

This is a recent phenomenon where both boys and girls have become victims of abuse. This was never heard of in the past. It has taken firm root in Sri Lanka after the advent of the open economy in 1977 and due to the desire of successive governments to maximize the earnings from the tourist industry. The unscrupulous tourists recruit boys and girls from poverty-stricken families through financial inducements. The blue films which are made by them are taken from Sri Lanka undetected and exhibited in their countries. This entices tourists with sexual depravities visits Sri Lanka for holidays. Besides this, pornographic literature is freely available at paper stands etc. but only to known customers.

Statistics relating to child pornography have not been available in the past because this was an unknown or little-known aspect of crime, but as child pornography has now grown into a lucrative trade, the police department has come down hard on this nefarious activity and statistics are being maintained.

Incest was known in Sri Lanka from ancient times but it did not come to light due to the fact that the family is a closely knitted unit, nor was it then treated as a penal offence, unlike under the laws today. However, incestuous marriages or incestuous cohabitation is prohibited by the General Marriage Ordinance, Kandyan Marriages and Divorce Ordinance and Muslim Marriages Ordinance.

Child Labour :

Child labour has existed since ancient times. It has been the practice particularly for the male children to help in the daily occupations of their fathers such as in agriculture, trade, etc. During those times there did not exist what we today call compulsory education. The female children of the family helped the mother in the household chores, looked after and cared for the younger children, etc. But in recent times, following the economic development of the country and the disparity between the ‘haves’ and the ‘have nots’, parents send their children for employment as domestic servants, unskilled workers to garages and small factories in order to supplement the family income. This results in the exploitation of children as the salaries given to them are meager when compared with those given to their adult counterparts. These children are not only denied the benefits given to their adult counterparts but are also subjected to torture, assault and sexual abuse, particularly where domestic workers are concerned. It is estimated that there are 100,000 child workers in Sri Lanka. In a recent study done on 700 households in the urban areas in the South by the Presidential Task Force on Prevention of Child Abuse and Protection of Children, has indicated that one in twelve houses has a child servant and one in three a domestic child labourer. In the estate area of the hill country about 44% of the estate labour force comprises child workers. Child domestic labour for the most part is employed by the professional and middle classes in Sri Lanka. According to Sri Lanka law a child below 14 years of age cannot be employed. It is a requirement under the law that employers of domestic servants should register such servants with the police of the area. This deters to some extent the employment of child workers. But as this is not stringently enforced most of the employers do not register their servants with the police. Since the 1980's’the police have come out strongly against the employment of domestic child labour. Thus the rights of the children and protection against children becoming victims of crime have not been the focus of attention of the governments of the day nor of the N.G.OO . During this period much activity was taking place in the international community. The international community is keen to protect the rights of the children and has recognized the year 1985 as the International year of the Child.

The adoption by the UN of the Convention on the Rights of the child in November 1989 contributed to a greater awareness and interest in the rights of the child the world over. Sri Lanka too ratified the convention on the Rights of the Child in 1989, and a Charter on Children’s Rights was adopted by the government of Sri Lanka in 1992. This charter re-stated the internationally-accepted norms on the rights of the child. Thus it will be seen that the interest and concern evinced by the Sri Lanka government and N.G.OO have been mainly due to the interest in the rights of the child shown by the international community. It was only thereafter that the old laws were repealed and new laws were inacted in Sri Lanka.

　

Recent amendments to the law to protect women and children:

The increasing trends in violence against women and exploitation and abuse of children in the early 1990’s gave rise to the inactment of new laws and to the amendment of the old laws. Another reason for this was the government of Sri Lanka ratifying the international conventions with regard to women’s and children’s rights. Further, the world conferences on women’s and children’s issues held in the 1980’s and the matters discussed in them influenced the N.G.OO connected with women’s and children’s issues in Sri Lanka, which made them to lobby the government for the protection of the rights of women and children. And these factors contributed to the amendment in 1995 of the old Penal Code, which was enacted over one hundred years ago.

Obscene publications and exhibition relating to children:

Following the amendments, a new section (286A) was introduced. According to this section “any person who hires employs, assists ............. in any obscene or indecent exhibition .................. who sells or distributes or publishes or possesses such photograph or film; or allows a child to appear in any absence exhibition or show; takes or assists in taking any indecent photograph of a child; distributes or shows any such photograph or publication, advertises or publishes such photograph, commits and offence and on conviction be punished with imprisonment for a term not less than two years and not exceeding ten years and may also be punished with a fine”. A child means a person under 18 years of age.

This section was further amended by Act No. 29 of 1998 which required developers of photographs and films to inform the police of the discovery of any indecent or obscene photographs or films. Non-disclosure is an offence punishable with a term of imprisonment of two years or with a fine.

　

Procuring children to beg and inducing them to engage in illicit sexual intercourse, employing children to sell restricted articles :

　

According to the amendment to the Penal Code by Act 29 of 1998 three new sections (288, 288A, 288B) have been included, making it an offence to cause children to beg or procuring children to beg, leaving children to act as procurers for sexual intercourse or to traffic in restricted articles. Under this section a child means a person under 18 years of age and restricted articles mean the same as described under the Poisons, Opium and Dangerous Drugs Ordinance.

　

Protection from cruelty, abuse and neglect :

In the Children and Young Persons Ordinance of 1939, there was provision to deal with cruelty to children. However, this section was seldom used to bring offenders to book. By Act No. 22 of 1995, amendments to the Penal Code, whoever having custody of a child under the age of 18 years treats such child cruelly, commits an offence will be punished with imprisonment of not less than two years and not exceeding 10 years together with an order to pay compensation to the victim.

　

Sexual Exploitation of Children :

　

Up to the time that the Penal Code was amended (1995) there was no law in the Penal Code to Punish a person who has sexually exploited a child. Under the new section 360 (b) whoever, knowingly permits a child to remain in any premises for the purpose of sexual abuse, to participate in any form of sexual abuse or any obscene or indecent exhibition ; to procure a child for the purpose of sexual intercourse or any form of sexual abuse; induce a person to be a client of a child for sexual intercourse; to take advantage of the relationship to a child or to threaten or use violence towards a child; to procure a child or to induce a child or the parents by monetary consideration with an intent to procure such child for sexual abuse, will be punished with a term of imprisonment of not less than 5 years and not exceeding 20 years and may also be punished with a fine. This section on sexual exploitation of children is very relevant in today's context of the expanding tourist industry in Sri Lanka as many foreign paedophils have already been brought before the courts for offences connected with sexual exploitation, which will have a deterrent effect not only on those who have yet to be brought to justice but also on those who may contemplate engaging in this nefarious activity as a means of quickly enriching themselves.

Trafficking of any person including children :

The trafficking of children did not appear to be a problem in the past though, off and on, this activity came to light in the print media. However, with the advent of foreign tourists into the Island, childless couples arranged with the local people to get children for adoption by them for monetary consideration through various means such as ?

all of which have now been made punishable offences with terms of imprisonment of not less than 2 years and not exceeding 20 years and may also be punished with a fine; where an offence has been committed on a child of less than 18 years the punishment could be enhanced, such punishment being of not less than 5 years and not exceeding 20 years.

Rape :

Rape has been a criminal offence since the enactment of the Penal Code over 100 years ago. However, before the Penal Code was amended, the provisions contained in the earlier section regarding rape read "having a sexual intercourse with a women against her will without her consent." The words "against her will" were interpreted to mean that some force had been used on her. So in the absence of any evidence with regard to the use of force such as injuries on the body, the courts were reluctant to convict an accused. This was a major problem which the prosecutors faced.

Furthermore, the courts, on many occasions, required independent corroboration of the victim's evidence although there was no requirement in the Evidence Ordinance for independent evidence to corroborate the evidence given by the victim. According to the amendment to the Penal Code in 1995, the earlier section 363 was repealed and the words " against her will" have not been included. Therefore, the difficulty that was encountered under the earlier section to prove rape does not now exist.

Before the Penal Code was amended statutory rape was recognized and the age limit was under 12 years. In the amendment the age limit has been increased to 16 years.

In the earlier section of the Penal Code the punishment for rape was imprisonment not exceeding 20 years. Due to this reason the courts had a discretion with regard to the period of imprisonment. Consequently the courts sentenced accused to periods of imprisonment of less than 2 years and imposed suspended sentences of up to 5 years. Due to this, persons convicted for rape returned to the society. The amendment introduced a minimum sentence of 7 years imprisonment. Therefore, the courts no longer have the discretionary power to enlarge rapists on suspended sentences. Additionally the amendment enhanced the punishment for custodial rape and where the victim has been a child of less than 16 years of age the punishment can be enhanced to not less than 15 years and not exceeding 20 years. In addition an order may be made to pay compensation to the victim.

For custodial rape, and rape committed on a women knowing her to be pregnant or who is under 18 years of age or mentally or physically disabled or commits gang-rape, a term of imprisonment of not less than 10 years and not exceeding 20 years.

Sexual Harassment :

Section 345 of the Penal Code deals with the offence of outraging the modesty of a women. The amended section has a wider application and sexual harassment has been made an offence. This section has made unwelcome sexual advances by words or action used by a person in authority in work place or any other place an offence. This is gender-neutral. This section gives confidence to women and children to do their day-to-day work without being sexually annoyed or harassed. This section embraces a wider area and serves as a deterrent.

Apart from the amendment referred to above, several other important amendments have been incorporated in the Penal Code to safeguard women and children against becoming victims of crime. Incest per se was not a penal offence although it was an offence under the Marriage Ordinance. This was made an offence by section 364 (a) of the Penal Code. Furthermore, the publication of matters relating to sexual matters and grave sexual abuse also have been made penal offences. The other amendments are amendments to the Judicature Act No. 2 of 1978, where non-summary proceedings have been dispensed with in cases of statutory rape. Furthermore, the Criminal Procedure Act No. 15 of 1979 has been amended and a person who has been arrested without a warrant for child abuse can be detained in police custody for a period not exceeding three days for the purpose of investigation. Before this amendment, the police could detain a person only for 24 hours. This amendment which gives the police an opportunity to conduct a fuller investigation which also serves as a deterrent to the accused person. When the amendments to the Penal Code and other laws are considered it will be seen that the degree of deterrence has been increased by enhanced punishments. In the recent past several foreigners who had been found guilty of paedophilia were prosecuted. This news, which has reached paedophillic and gay organizations in foreign lands, has been mentioned in the Spartacus Magazine and the International Gay Guide 95/96 (24th edition El Bruno Gmunder Verlag) as follows in order to caution people with such proclivities who visit Sri Lanka; "Homosexual acts between men, regardless of age, are prohibited by section 365 & 365a of the Penal Code. The penalty up to ten years of imprisonment. The laws, until recently were rarely enforced, are now more frequently applied and the number of convictions has increased sharply. This was caused by aggressive sex-oriented tourism from Western Gays and heterosexuals". This has also sounded a note of caution to the local people who are engaged in this despicable activity.

Women's and Children Desk at Police Stations :

It was not until recently that the police started to treat women and children separately from others. In the past all complaints irrespective of age and gender were treated alike at the Police stations. However, due to the changes in the concept of treatment of women and children who are victims of crime, the Police Headquarters in Sri Lanka established a Women's and Children's Bureau in the city of Colombo in 1979. Women officers were assigned to these bureaux in order to handle complaints from women and child victims. The function of the bureaux to give guidance and protection to both women and children who were in need of such guidance and protection and also referred cases to the relevant departments and N.G.OO to grant relief. Furthermore, all cases of crime reported to this bureaux were investigated and action taken.

In 1993 the Ministry of Women's Affairs persuaded the Police Headquarters to establish Women and Children Desk in the Police Divisions. Todate there are 33 such desks all of which are manned by women police officers, who have special training to handle/deal with women and child victims of crime. These bureaux are now functioning very well and maintaining statistics which will help and enhance the service that is now being provided.

The role played by N.G.OO to protect women and children

against becoming victims of crime :

Up to 1970 there were only a few N.G.OO or women's organizations in Sri Lanka who showed interest in protecting women and children against becoming victims of crime. It was only after 1980 that the number of N.G.OO and women's organizations increased and they started to show a keener interest in the well being and rights of women and children. They participated in world conferences and promoted the formation of women's organizations. The N.G.OO such as "Women in Need", established in 1987, addressed issues relating to the abuse of women, and "Women's Development Centre" which established in 1986 addressed issues such as Rape Victims, Victims of Domestic Violence, etc., "Centre for Family Services" was established in 1992 provided service to women victims of crime. These are only a few among numerous others, which have taken an interest in preventing violence against women and children. Furthermore, the Bar Association of Sri Lanka, Sarvodaya Movement, Sri Lanka Women Lawyers' Association, Voice of Women, Women's Development Centre and Women in Need offers free legal aid to women and child victims of crime. Moreover, several women's organizations such as "Centre for Women's Research" (CENWOR), Women's Education and Research Centre (WERC), Muslim Women's Research and Action Forum (MWRAF), etc., etc. conduct research on women's issues relating to violence against women and children and have promoted a greater awareness among them of their rights. These organizations also conduct research on women's and children's issues and their findings have been made available to the society, administrators etc. which have resulted in bringing about attitudinal changes in women's and children's rights for the better.

　

　

B.A. (Hons), LL.B, LL.M (Japan)

Attorney-at-Law

Deputy Inspector General of Police

Sri Lanka.