In the west, where the accepted
ethos governing the individual behaviour is ‘liberalism’, sex is generally
considered to be a private matter between individuals. Although they still
believe that individuals should abide by ‘ethics’ of sex they do not see law
playing a significant role in regulating sex in the society. The one principle
they uphold above everything else is ‘consent’. The sole duty of the law in
this regard, as it were, is to distinguish the acts which are mutually
consensual from acts in which one party is non-consenting. In situations where
there is mutual consent law only intervenes if one party is considered to be
incapable of granting autonomous consent as a matter of public policy.
Our society cannot be considered
as a western standard liberal society. Therefore, we cannot expect same ethos
from our people. We still do not consider even the consensual sexual behaviour
as a purely a private affair. Homosexuality
even between consenting adults is still frowned upon. The law books still
prohibits homosexuality under the law of ‘act of gross indecency between
persons’ although it is rarely used. Although society no longer believe, I
assume, that non-vaginal sex is unnatural our law still considers, at least on
the book, only natural sexual intercourse is vaginal. However, our society and
the criminal justice system regard the difference between the consensual and
non-consensual act very seriously too.
Under Sri Lankan Sex Law
following sexual acts are considered as criminal offences
1. Any
sexual act, which may range from ‘unwelcome sexual advances by words’ (Section
345 Sexual Harassment) to penetration of the vagina with the penis, if one
party is non-consenting. (Sections 363, 364 A(1), 365, 365 (A), 365 (B) and
345)
2. Certain
sexual acts are considered criminal even if the act is consensual e.g. Incest,
unnatural offences [Sex with animal, anal, oral and inter-crural intercourse(?)]
and acts of gross indecency between persons (homosexuality). (Sections 364
A(1), 365 & 365(A))
(Unnatural
offences are defined in the penal code as follows. Whoever voluntary has carnal
intercourse against the order of nature with any man, woman or
animal....Section 365.)
(Carnal
intercourse is same as ‘sexual intercourse’. The word carnal is an ‘old
fashioned word’ used to minimise the undesirable connotation of the word
‘sexual’.)
3. Even consensual vaginal sexual intercourse
will become unlawful when the woman
a.
Is under 16 years
b.
Is of unsound mind
c.
Is in a state of intoxication induced by drug or
alcohol
d.
Consented while being in detention (lawful or
unlawful)
e.
Consented after use of force, intimidation,
threat of being detained or because some other person (e.g. a relative of the
victim) was threatened to be killed or hurt (Sections 363 and 365(A))
f.
When done with a woman when she consented to the
act thinking the offender is her lawful husband e.g. in child marriages widely
practised in India, a man would return to village after many years of being in
a city and claim that he is the husband of a woman, who got married when she
was a child and has not seen her husband for many years.(Section 363)
4. Grave
sexual abuse (section 365 B) consists of any act, which uses genitals or any
other part of the human body or any instrument on any orifice or part of the
body of any other person and does not amount to ‘rape’.
This will be
unlawful only if done
a.
Without consent
b.
With the consent but it was obtained by use of
force, threat, or intimidation or putting another person in fear of death or
hurt
c.
With consent but it was obtained while in
unlawful detention
d.
With consent but it was obtained at a time when
the other person in unsound mind or state of intoxication induced by drugs or
alcohol.
5. Vaginal
sexual intercourse done with a woman, who is his wife, not judicially separated
and over 12 years of age is not considered to be unlawful(Section 363)
6. Having
vaginal sexual intercourse with his wife, who is judicially separated without
her consent, is unlawful.(Section 363)
Explanation of words
Vaginal Sexual Intercourse
Traditionally it is defined as
inter-labial penetration of vagina with a penis. (If the tip of the penis went through
the two ‘lips’ of labia majora it will be considered as vaginal sexual
intercourse for the legal purposes. How to prove it by medical evidence is
altogether a different matter.)
Sexual acts covered in Grave Sexual Abuse
If somebody used their genitals
or any other part of the body or any instrument on any orifice or part of body
of any person in an act which does not amount to ‘Rape’ is considered to have
committed ‘grave sexual’ offence if done without the consent of the other
person and in certain other situations given above.
Rape
‘Rape’ is a legal term. The court
decides whether the act of vaginal penile penetration of the woman was an act
of ‘rape’ after a clinical trial. To come to that conclusion the condition laid
down under the section 363 should be fulfilled.
In the same way, court will
decide the alleged act on a woman or man is constituted ‘grave sexual abuse’
under the section 365 (B).
Unnatural Offences
All the sexual acts except the
vaginal sexual intercourse between a man and a woman are considered unnatural
sexual acts.
Acts of gross indecency between persons
This means homosexual acts
between persons.
Some of the important legal points
1. Physical
injuries to the body are not essential to prove that sexual intercourse took
place without consent.
2. A
boy under 12 years of age is incapable of committing rape.
3. Incest
is defined as sexual relations between people classed as being too closely
related to marry each other. The parties, with whom having sexual intercourse
is considered as incest, are defined in the Penal Code under section 364 A (1).
4. Sexual
harassment can be committed by words and actions causing sexual annoyance or
harassment to another person.
5. Punishment
for rape is more
a.
If done by a public officer or person in
authority if the woman is detained or wrongfully restrained
b.
If done by a person in the management team or
staff of a remand home, other place of custody, or any woman or children
institution
c.
If done by a person who is in a management or
staff of a hospital
d.
If commits rape knowing the woman is pregnant
e.
If commits on a woman under the age of 18 years
f.
If commits on a woman who is mentally or
physically disabled
g.
If commits gang rape
h.
Incestuous rape
i.
If commits grave sexual abuse on a person under
18 years
Priyanjith Perera
12/12/12
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