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Suspended sentence over prison for statutory rape

25 Jan 2021

  • Proposals to allow in exceptional cases

  • Underage love marriages

  • Teen abortions

  By Ruwan Laknath Jayakody   A legal amendment is being drafted to change the provisions in the Penal Code regarding statutory rape to allow for magistrates to be afforded the power to, depending on the individual circumstances of each such case, grant suspended jail term sentences to offenders below the age of 22 years, convicted of such in the event the girl in question, below the age of 16, has consented to sexual intercourse. If necessary, compensation too can be ordered to be paid in connection with the offence. “These alternatives, proposed as amendments in this regard, mean that young persons (understood in law to include those below the age of 22 years) and minors are not sentenced to jail,” Chief Legal Advisor to the Ministry of Justice Udaya Rohan De Silva PC told The Morning. Currently, Section 363(e) of the existing Penal Code, as amended through Act No. 22 of 1995, defines statutory rape as “with or without her consent when she is under 16 years of age, unless the woman is his wife who is over 12 years of age and is not judicially separated from the man”. Section 364(2) of the Code, as amended by the aforementioned Act, in its proviso which deals with the punishment for the same holds that “where the offence is committed in respect of a person under 16 years of age, the court may, where the offender is a person under 18 years of age and the intercourse has been with the consent of the person, impose a sentence of imprisonment for a term less than 10 years”. However, the Supreme Court (S.C.) Determination in S.C. Ref. No. 03/08, on the question of whether the aforementioned amendment contained in Act No. 22 of 1995, removed the judicial discretion when sentencing an accused convicted of the said offence, held that the discretion of the relevant court with regard to the imposition of punishment cannot be curtailed by stipulating a minimum term for offences other than for offences which are serious in nature, thereby accepting the need to impose mandatory minimum sentencing in cases of serious offences.  The Cabinet of Ministers on 18 January decided to amend the law in question “to suit the present circumstances” as according to them, “there is a contradiction in the law”. The proposal presented by the Minister of Justice to instruct the Legal Draftsman to draft amendments to the Penal Code was thus approved. Speaking to The Morning further with regard to a query on the precise nature of the amendment that has been proposed, De Silva explained the reasoning related to what is termed as the “Romeo and Juliet exception”. “In most cases of statutory rape, these acts of sexual intercourse are the result of love affairs and consensual relationships involving a girl below the age of 16 years and an accused under the age of 18 years or a young person below the age of 22 years. If the girl becomes pregnant as a result, the girl’s family including parents won’t tell the Police that there was a consensual relationship, but instead will say the boy abducted the girl, and then unfortunately, as per the law, the Attorney General (AG) files a case and the accused upon conviction is sentenced to jail. The girl is then left on her own in a situation where no one will help. All of this is because of the presumption that a girl below 16 years of age cannot consent. This is a rather sad state of affairs. There should be consent. The courts should understand this and decide on a case-by-case basis.” Another issue that complicates the situation, he explained, is that even if the parties are willing to marry, they cannot do so due to the fact that they are underage. In a related concern, De Silva noted that therefore, a committee headed by Supreme Court Judge Justice Buwaneka Aluwihare PC, which had been appointed previously by the Ministry of Justice to consider and propose necessary amendments to the Penal Code and the Code of Criminal Procedure, had in the course of its inquiries and deliberations into such was now hoping to submit proposals to the effect to consider allowing marriage in such exceptional circumstances, and also to provide for abortion, under medical advice, if the girl does not wish to go ahead with the pregnancy by taking it to term. De Silva further noted that doctors recommend 18 years and above as the time when females have the capacity to deliver (not to say that girls below the age of 18 cannot). According to De Silva, this would “help the young girl live a peaceful life in society”, rather than having to undergo “the mental anguish of carrying a child at the age of 16 or below” and be in a situation where “no one will help”. Earlier, the Law Commission of Sri Lanka, in an explanatory note on the sentencing policy with regard to statutory rape, had, among others, recommended the amendment of the proviso to Section 364(2), as amended by the Act No. 22 of 1995, to provide for that only a girl over 15 years of age can give consent to sexual intercourse for the purpose of the proviso; to impose a sentence less than the mandatory 10 years in circumstances, which the court considers relevant in deciding to impose a lesser sentence; or discharge the accused without proceeding to conviction upon the court being satisfied of certain circumstances which are set out in the recommended amendment.


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