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Sexual violence: System is stacked against victims and it can begin at police stations
The definitions of sexual violence within the Sri Lankan law are narrow and in need of reform
Sexual violence is spiralling. But even the few survivors that stumble their way to Sri Lanka’s courtrooms are stigmatised, battered by a sexist system and still defeated by ineffective laws.
According to the Police Research and Planning Division, 1,401 crimes of sexual violence were reported countrywide in the first seven months of this year alone. Just 324 of them were before courts. Only five were convicted this year. But as a trial can take up to eight years, some of these cases could have been filed as long ago as 2012.
“For the victims, the justice system’s inefficiency begins from the moment they arrive at the police,” a source told the Sunday Times. She had gone to a police station with a loved one who was sexually assaulted. “How they treated her made me decide that I wouldn’t go to the police if something happened to me.” She, too, had survived sexual violence when she was younger but did not pursue justice at the time.
A report released this year by Equality Now finds that 9.7 percent of Sri Lankan women in the age group of above 15 face sexual violence during their lifetime. “Data on reported cases are still not indicative of its high rate of prevalence, due to several reasons such as under-reporting,” it says.
There were 1,779 cases in 2019, the group found. Data gathered from the police by the Sunday Times show the number to be significantly higher at 5,812.
The legal loopholes are glaring. For instance, marital rape is not considered an offence. The Equality Now report shows a prevalence of marital rape of 6.8 percent in Sri Lanka but says these numbers are understated due to stigma and an acceptance of a woman’s perceived “subordinate role” in marriage.
Sri Lanka’s law explicitly permits marital rape, unless the parties are judicially separated, which is rarely the case due to financial dependence and desire to hold the family together. Consequently, the law also inadvertently permits the ‘rape’ of children over 12 as personal laws such as the Muslim Marriage and Divorce Act have no minimum legal age of marriage, and are in conflict with Sri Lanka’s family law which sets the minimum age of marriage at 18.
Where rape does occur within a marriage, however, action can still be taken under domestic violence laws but this then results in the case being treated like a crime of violence and not of sexual violence. The police’s first response in most cases of domestic violence is to “reconcile” the family.
Discriminatory evidence requirements, narrowly defined rape laws, long delays and lack of victim support leading to low conviction rates remain a few of the many barriers to justice for victims of sexual violence.
“The definitions of sexual violence within the Sri Lankan law are narrow and in need of reform,” said Jerusha Crosette-Thambiah, attorney-at-law and lecturer. Crimes of sexual violence are prosecuted under the rape and sexual harassment laws within the Penal Code and rape is limited to peno-vaginal penetration without consent.
While the penalties for other sexual violence crimes that fall short of peno-vaginal penetration are labelled “grave sexual abuse”, the penalties applied are more lenient. Therefore, the narrow definition results in lower sentences if male organ penetration remains unproven. This also means that male rape is not recognised as rape in Sri Lanka.
Another deterrent was the long period of time of trial. “Especially when the defence has a well-paid counsel, the time delay is advantageous to the accused since survivor memories often get distorted over time,” said Ms Crosette-Thambiah. Some survivors abandon their cases during trial to be able to move on with their lives, especially if they want to start their own families etc. Since hearings for crimes of sexual violence against adults are in open court, the fear of being sensationalised and the absence of privacy also drive survivors to inaction, she pointed out.
The lack of police officers trained in gender sensitivity was a huge problem as victims spend long hours going over their abuse. “Sometimes, the correct statement does not even get recorded because there are no translators within police divisions to speak the survivor’s language or allows her to recheck the statement taken down by the police,” she said.
“The root of systemic sexism within the Sri Lanka Police is found even before the survivor walks into the police station,” said a senior female officer who wished to remain anonymous. Only some 8,000 of 85,000 police officers are female and 95 percent of them are in the lowest ranks or in back offices doing paperwork. There isn’t a single female OIC across the 44 police divisions and there are only 10 gazetted rank positions available for women with no prospect of career progression.
“Even these officers often have their hands tied in most cases because independent decision-making is a surefire way to get demoted or removed out of the blue,” she said. There aren’t sufficient female officers even to run the women and children’s desks countrywide.
While they receive training in counselling and investigations specifically to deal with crimes of sexual violence, this is rarely reflected when dealing with victims due to a debilitating cultural mindset.
“I’m well aware of the unprofessional approach most officers take towards these complaints,” the senior police officer said. “And about how they prioritise keeping the ‘family’ together over the physical and emotional well-being of the woman who has been attacked.”
But even where officers do behave professionally, police are hindered by lack of resources. “There isn’t any infrastructure like safe houses where we can bring these women and look after them when a complaint is made to us,” she said. Most often women who survive intimate partner violence end up having to share a roof with their attacker even after they’ve made their complaints.
According to the Research and Planning Division, lack of manpower and resources, and debilitating mental health are the top three deterrents to professional survivor care by the police. Despite its high stress levels, there is no official counselling or a mental healthcare programme available to them.
A total of 1,699 officers are deployed to fight sexual violence. This includes mental health professionals who are meant to help victims. But their research also shows that a lack of privacy and faith in the law are the biggest reasons why survivors rarely report their incidents.
| Survivors tell their tales | |
| Sara* was 15 when she was first sexually abused by her uncle in her own home while her parents were working abroad. “I told my class teacher and she immediately tried to blame me, asking me all sorts of questions like what was I wearing, and if I was sure, or if I was misunderstanding him,” she said. When the matter came to the principal, Sara was taken out of the house but no legal action was pursued and her abuser faced no consequences. “I was supposed to not tell anyone because it would ruin my image, they expected me to forget all about it and act like nothing happened.”Sara even made a complaint at the Kandy Human Rights Association. “The President, who was one of the main priests at our church back then, told me to forgive him and offered me to join the church community therapy sessions because, according to him, listening to how much worse other people have gone through would make me feel better.” Sara is a 23-year-old advertising professional now and in therapy and medication to recover from what she went through. While she did confront her uncle on her own after she got older, he is yet to face any legal consequences. Deena* was also 15 when she was sexually assaulted by her ECG technician at a prominent private hospital in Colombo. She was admitted to the hospital after a mental health episode and required three ECGs in total. During her second test, the technician fondled her chest for a prolonged period while Deena’s mother had to step outside for something. Deena began to cry but the technician continued. When Deena’s mother found out and complained to the head nurse immediately, they received the response “Api mona karannada ithin miss owa gana” — what can we do on such things, madam. Deena did not pursue further action because she was afraid that if the story got out, details of her mental health episode would no longer be private. “My father doesn’t know to this day, I know I would do it differently now but my 15-year-old self is still scared of how I would’ve been painted,” said the now 22-year-old post-graduate law student who was now into gender studies research. Another survivor, Thera* was abused by a close relative between the ages of 9-12. She too confronted her abuser years later and received an apology for what he put her through: “I did not report it because I wanted to focus and base my recovery on my own healing instead of the abuser’s regret. I would 10/10 report it if something happened now nevertheless.” The 23-year-old currently works as a drama teacher. *Names have been changed to maintain the anonymity of survivors.
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