Sri Lanka: Violence against women in Sri Lanka
Source:
The Island [Sri Lanka] Following calls for reform of Personal Law this article focuses on certain aspects of the General Law dealing with the issue of violence against women.
As illustrated below, the legal system is gendered and contains many provisions, which specifically discriminate against women.
This article examines the international human rights framework and Sri Lanka's obligations as signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and goes on to focus on the specific issues of domestic violence, divorce laws, rape and sexual harassment.
Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires States to "pursue by all means and without delay a policy of eliminating discrimination against women" which includes the duty to "refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation" and "take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women." Sri Lanka as signatory to the CEDAW is obliged to ensure that the rights of women are protected and promoted. Yet, a study of the national legal framework clearly highlights that "the law" continues to discriminate against women in many aspects. Where violence against women is concerned the lack of specific domestic violence legislation and the law on rape which leaves unprotected certain groups such as young Muslim women between the ages of 12 and 16 are just some of the legal provisions which need to be amended/repealed.
Domestic violence & divorce laws
Sri Lanka does not have specific legislation on domestic violence and the Penal Code too does not criminalize domestic violence. Prosecution of domestic violence therefore has to be undertaken under other general sections such as Section 324-assault or Section 311-causing grievous hurt. As pointed out in Ameena Hussein's study on violence against women, these provisions are however rarely used as social conditions prevent women from reporting incidents of domestic violence and even when they do, the complaints are not taken seriously by the authorities or informal mediation mechanisms are utilised to settle cases. Although the amendments to the Penal Code in 1995 expanded the definition of grievous hurt it did not acknowledge violence against women as a crime. The amendments also did not take into account victims who may have suffered only minor injuries and those subject to psychological abuse, which clearly points to the state not abiding by its CEDAW obligations.
As feminist legal analysts have pointed out the effectiveness of any proposed domestic violence legislation will be dependent on amendments to the laws relating to divorce. As the concept of "no fault" divorce does not exist in Sri Lankan law, those seeking divorce have to prove malicious desertion, which has been interpreted to include cruelty, adultery or incurable impotence. This, places a huge burden on a woman seeking divorce who in addition to battling the social stigma attached to divorce also has to deal with the gendered legal system. As the definition of constructive malicious desertion has been held to also include spousal abuse it is possible to use this ground to apply for divorce, but once again the woman carries a heavy burden of proof as she will have to prove she was forced to leave the matrimonial home due to fear of harm to life and limb.
Rape
Section 363 of the Penal Code defines rape as "sexual intercourse with a woman without her consent; or where her consent has been obtained by use of force, threats or intimidation; where she is judicially separated from the man; with her consent when her consent was obtained when she was of unsound mind, in a state of intoxication induced by drugs or alcohol; with her consent when the man knows he is not her husband and she is under the belief that she is married to him; with or without her consent when she is under 16 years except when she is his wife who is over 12 years and not judicially separated from him. There is no need to show evidence of resistance by the victim, penetration is sufficient to establish sexual intercourse. However, it has to be noted that this definition does not include the insertion of objects or other forms of degrading treatment.
In the case of rape the 1995 amendments to the Penal Code brought about some positive changes. Prior to the amendment, in addition to proving the act and the intention to rape beyond all reasonable doubt, it also had to be proven that it was without the consent of the victim and against her will. This meant that the physical resistance of the victim had to be established and lack of evidence of such resistance weakened the case. Post-amendment, the explanation to the new section reads as follows "evidence of resistance such as physical injuries to the body is not essential to prove that sexual intercourse took place without consent". Although the age of statutory rape was increased from 12 to 16 years, the age of statutory marital rape of 12 years remained the same. This provision is applicable only to Muslims as Muslim law allows marriage at 12 years. This legal loophole means that sexual intercourse with a girl over the age of 12 years and below 16 years would not be considered rape unless the wife is judicially separated. Although the introduction of the offence of custodial rape was a step in the correct direction, the provision does not go far enough as in other countries such as India, where the burden is shifted to the authority to prove that the alleged rape did not take place. As stated in Hussein's report "although the measure may seem Draconian in nature, the victim's lack of power and means vis-a-vis the institution renders it easier for the institution to contest a charge of rape. At the best of times rape is a difficult crime to prove due to the corroboration rule; therefore, where an institution is concerned it would be in a better position to deal with evidentiary requirements."
The government as part of the 1995 reform of the Penal Code also put forward amendments which contained provisions that criminalized marital rape and decriminalised abortion in pregnancies resulting from rape. Unfortunately these provisions did not become law as the government withdrew them due to objections from religious groups.
Sexual Harassment
Sexual harassment must be understood to exist on the continuum of sexual violence against women. It is a personal attack on women's minds and bodies instilling fear and violating a woman's right to bodily integrity, education and freedom of movement. Sexual harassment frequently occurs on the street, in the workplace, in educational institutions and on public transportation. Sexual harassment strikes at the heart of women's economic self-sufficiency, disrupting women's earning capacity by forcing them out of the workplace or school.
The law on sexual harassment was introduced as part of the Penal Code amendments of 1995. Section 345 replaced the existing offence of outraging the modesty of a woman. The section reads as follows: A person who, by assault or use of criminal force sexually harasses another person or; by the use of words or actions causes sexual annoyance or harassment to another person commits the offence of sexual harassment. The explanation to the section states that unwelcome advances by words or actions used by a person in authority, in a workplace or any other place shall constitute sexual harassment. This definition is unclear and without guidelines as to what constitutes sexual harassment difficulties might be encountered in determining whether sexual harassment has taken place. It has to be pointed out that the explanation by highlighting actions by a "person in authority" precludes sexual harassment by colleagues and subordinates.
Formal equality vs. substantive equality
It therefore appears that although the Sri Lankan legal system has undergone much reform, the position of women has not improved. Formal equality has been achieved but how far are we from substantive equality? The law alone is not to be blamed; social attitudes too contribute to the discrimination of women. When a woman is raped, abused or beaten she thinks not once but many times before lodging a complaint at the police station. This is due to many factors: one factor is shame and stigmatisation by society, which in many cases results in the family discouraging the woman from lodging a complaint. Lack of sensitivity of the law enforcement sector is another reason women fear approaching the police as they will have to undergo a harrowing examination where the woman will mostly likely be questioned by a male police officer who will be unaware of her trauma. In the event the complaint is taken up, the woman will often have to endure a long wait until the case is heard in court. When the case goes to court the woman will suffer at the hands of the defence counsel in the guise of cross-examination. In the majority of cases, the judge and the prosecuting attorney too will not be sensitive but will instead act with little regard for the emotional state and dignity of the woman.
Int'l Human Rights standards
In 1992, the Committee on the Elimination of Discrimination Against Women adopted General Recommendation 19, in which it confirmed that violence against women constitutes a violation of human rights. It emphasises that "States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or investigate and punish acts of violence." The Committee made recommendations on measures States should take to provide effective protection of women against gender-based violence, including:
* Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including inter alia, violence and abuse in the family, sexual assault and sexual harassment in the workplace;
* Preventive measures, including public information and education programmes to change attitudes concerning the role and status of men and women;
* Protective measures, including refuges, counselling, rehabilitation action and support services for women who are the victims of violence or those who are at risk with violence.
The concept of due diligence has been advanced by the judgment of the Inter-American Court of Human Rights in the case of Velasquez Rodriquez. This judgment, which represents an authoritative interpretation of an international standard on State duty, is one of the most significant assertions of State responsibility for acts by private actors. The due diligence requirement encompasses the obligation to both provide and enforce sufficient remedies to survivors of private violence. Thus, the existence of a legal system criminalizing and providing sanctions for acts of violence against women would not in itself be sufficient; the government would have to perform its functions to "effectively ensure" that such incidents are investigated and punished. Indicators for measuring due diligence would be the existence of government programmes to protect victims of violence, the type of investigative and other actions taken by police, State officials etc.
The Sri Lankan government should therefore focus on substantive equality rather than formal equality and take measures to effectively deal with violence against women in a manner which is not only concerned with the equal treatment of the law but also with the actual effect of the law. Its approach should take into account historic, socio-economic and cultural realities and seek to eliminate systemic and institutional inequality.
Reference: Hussein. A., Sometimes There is No Blood: Domestic Violence and Rape in Rural Sri Lanka, International Centre for Ethnic Studies, 2000.
The Island
Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires States to "pursue by all means and without delay a policy of eliminating discrimination against women" which includes the duty to "refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation" and "take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women." Sri Lanka as signatory to the CEDAW is obliged to ensure that the rights of women are protected and promoted. Yet, a study of the national legal framework clearly highlights that "the law" continues to discriminate against women in many aspects. Where violence against women is concerned the lack of specific domestic violence legislation and the law on rape which leaves unprotected certain groups such as young Muslim women between the ages of 12 and 16 are just some of the legal provisions which need to be amended/repealed.
Domestic violence & divorce laws
Sri Lanka does not have specific legislation on domestic violence and the Penal Code too does not criminalize domestic violence. Prosecution of domestic violence therefore has to be undertaken under other general sections such as Section 324-assault or Section 311-causing grievous hurt. As pointed out in Ameena Hussein's study on violence against women, these provisions are however rarely used as social conditions prevent women from reporting incidents of domestic violence and even when they do, the complaints are not taken seriously by the authorities or informal mediation mechanisms are utilised to settle cases. Although the amendments to the Penal Code in 1995 expanded the definition of grievous hurt it did not acknowledge violence against women as a crime. The amendments also did not take into account victims who may have suffered only minor injuries and those subject to psychological abuse, which clearly points to the state not abiding by its CEDAW obligations.
As feminist legal analysts have pointed out the effectiveness of any proposed domestic violence legislation will be dependent on amendments to the laws relating to divorce. As the concept of "no fault" divorce does not exist in Sri Lankan law, those seeking divorce have to prove malicious desertion, which has been interpreted to include cruelty, adultery or incurable impotence. This, places a huge burden on a woman seeking divorce who in addition to battling the social stigma attached to divorce also has to deal with the gendered legal system. As the definition of constructive malicious desertion has been held to also include spousal abuse it is possible to use this ground to apply for divorce, but once again the woman carries a heavy burden of proof as she will have to prove she was forced to leave the matrimonial home due to fear of harm to life and limb.
Rape
Section 363 of the Penal Code defines rape as "sexual intercourse with a woman without her consent; or where her consent has been obtained by use of force, threats or intimidation; where she is judicially separated from the man; with her consent when her consent was obtained when she was of unsound mind, in a state of intoxication induced by drugs or alcohol; with her consent when the man knows he is not her husband and she is under the belief that she is married to him; with or without her consent when she is under 16 years except when she is his wife who is over 12 years and not judicially separated from him. There is no need to show evidence of resistance by the victim, penetration is sufficient to establish sexual intercourse. However, it has to be noted that this definition does not include the insertion of objects or other forms of degrading treatment.
In the case of rape the 1995 amendments to the Penal Code brought about some positive changes. Prior to the amendment, in addition to proving the act and the intention to rape beyond all reasonable doubt, it also had to be proven that it was without the consent of the victim and against her will. This meant that the physical resistance of the victim had to be established and lack of evidence of such resistance weakened the case. Post-amendment, the explanation to the new section reads as follows "evidence of resistance such as physical injuries to the body is not essential to prove that sexual intercourse took place without consent". Although the age of statutory rape was increased from 12 to 16 years, the age of statutory marital rape of 12 years remained the same. This provision is applicable only to Muslims as Muslim law allows marriage at 12 years. This legal loophole means that sexual intercourse with a girl over the age of 12 years and below 16 years would not be considered rape unless the wife is judicially separated. Although the introduction of the offence of custodial rape was a step in the correct direction, the provision does not go far enough as in other countries such as India, where the burden is shifted to the authority to prove that the alleged rape did not take place. As stated in Hussein's report "although the measure may seem Draconian in nature, the victim's lack of power and means vis-a-vis the institution renders it easier for the institution to contest a charge of rape. At the best of times rape is a difficult crime to prove due to the corroboration rule; therefore, where an institution is concerned it would be in a better position to deal with evidentiary requirements."
The government as part of the 1995 reform of the Penal Code also put forward amendments which contained provisions that criminalized marital rape and decriminalised abortion in pregnancies resulting from rape. Unfortunately these provisions did not become law as the government withdrew them due to objections from religious groups.
Sexual Harassment
Sexual harassment must be understood to exist on the continuum of sexual violence against women. It is a personal attack on women's minds and bodies instilling fear and violating a woman's right to bodily integrity, education and freedom of movement. Sexual harassment frequently occurs on the street, in the workplace, in educational institutions and on public transportation. Sexual harassment strikes at the heart of women's economic self-sufficiency, disrupting women's earning capacity by forcing them out of the workplace or school.
The law on sexual harassment was introduced as part of the Penal Code amendments of 1995. Section 345 replaced the existing offence of outraging the modesty of a woman. The section reads as follows: A person who, by assault or use of criminal force sexually harasses another person or; by the use of words or actions causes sexual annoyance or harassment to another person commits the offence of sexual harassment. The explanation to the section states that unwelcome advances by words or actions used by a person in authority, in a workplace or any other place shall constitute sexual harassment. This definition is unclear and without guidelines as to what constitutes sexual harassment difficulties might be encountered in determining whether sexual harassment has taken place. It has to be pointed out that the explanation by highlighting actions by a "person in authority" precludes sexual harassment by colleagues and subordinates.
Formal equality vs. substantive equality
It therefore appears that although the Sri Lankan legal system has undergone much reform, the position of women has not improved. Formal equality has been achieved but how far are we from substantive equality? The law alone is not to be blamed; social attitudes too contribute to the discrimination of women. When a woman is raped, abused or beaten she thinks not once but many times before lodging a complaint at the police station. This is due to many factors: one factor is shame and stigmatisation by society, which in many cases results in the family discouraging the woman from lodging a complaint. Lack of sensitivity of the law enforcement sector is another reason women fear approaching the police as they will have to undergo a harrowing examination where the woman will mostly likely be questioned by a male police officer who will be unaware of her trauma. In the event the complaint is taken up, the woman will often have to endure a long wait until the case is heard in court. When the case goes to court the woman will suffer at the hands of the defence counsel in the guise of cross-examination. In the majority of cases, the judge and the prosecuting attorney too will not be sensitive but will instead act with little regard for the emotional state and dignity of the woman.
Int'l Human Rights standards
In 1992, the Committee on the Elimination of Discrimination Against Women adopted General Recommendation 19, in which it confirmed that violence against women constitutes a violation of human rights. It emphasises that "States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or investigate and punish acts of violence." The Committee made recommendations on measures States should take to provide effective protection of women against gender-based violence, including:
* Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including inter alia, violence and abuse in the family, sexual assault and sexual harassment in the workplace;
* Preventive measures, including public information and education programmes to change attitudes concerning the role and status of men and women;
* Protective measures, including refuges, counselling, rehabilitation action and support services for women who are the victims of violence or those who are at risk with violence.
The concept of due diligence has been advanced by the judgment of the Inter-American Court of Human Rights in the case of Velasquez Rodriquez. This judgment, which represents an authoritative interpretation of an international standard on State duty, is one of the most significant assertions of State responsibility for acts by private actors. The due diligence requirement encompasses the obligation to both provide and enforce sufficient remedies to survivors of private violence. Thus, the existence of a legal system criminalizing and providing sanctions for acts of violence against women would not in itself be sufficient; the government would have to perform its functions to "effectively ensure" that such incidents are investigated and punished. Indicators for measuring due diligence would be the existence of government programmes to protect victims of violence, the type of investigative and other actions taken by police, State officials etc.
The Sri Lankan government should therefore focus on substantive equality rather than formal equality and take measures to effectively deal with violence against women in a manner which is not only concerned with the equal treatment of the law but also with the actual effect of the law. Its approach should take into account historic, socio-economic and cultural realities and seek to eliminate systemic and institutional inequality.
Reference: Hussein. A., Sometimes There is No Blood: Domestic Violence and Rape in Rural Sri Lanka, International Centre for Ethnic Studies, 2000.
The Island
