Everything else.. Rape and Consent – What Does the Law Say?

Rape and Consent – What Does the Law Say?

2021 Aug 26

Law is Light is a series of trilingual legal discussions to shed light on the law. The Latin maxim “ignorantia legis neminem excusat” translates to ignorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In its fourth discussion, the programme focused on “Sexual Offences”.

The discussion featured the following Attorneys-at- Law: Mr. Seevali Amithirigala PC, who is active in criminal and civil law practice, and is a senior lecturer at Sri Lanka Law College and Royal Institute; Mr Asthika Upul Devendra, a senior lawyer who lectured for Law entrance exams and was a senior lecturer at CfPS Law School; and Prof. Dr. Shanthi Segarajasingham, a senior lecturer at the Faculty of Law, University of Colombo.

What does consent mean in the offence of rape? And what type of consent will not be accepted in the court of law?

Sexual offences in the Penal Code are rape (s.363), incest (s.364A), unnatural offences (s.365), acts of gross indecency (s.356A), grave sexual abuse (365B) and sexual harassment (s.344). The section that defines the offence of rape states that the very act of rape will be a man having sexual intercourse with a woman without the consent of that woman.

The absence of consent is a vital element in the offence of rape. Consent can be obtained, but it would not qualify as consent for various reasons, for example, if a person is under lawful or unlawful detention and you use force to obtain consent, such consent would not be consent in terms of the law. If you obtained consent by intimidation, threat of force or by putting the person in fear of death and hurt, it would amount to consent obtained by fear or duress. Those types of consent will not qualify as consent for sexual intercourse. On the other hand, there is consent obtained from a person who is intoxicated, and the person has been intoxicated by the perpetrator. A person may also be unable to give consent because the victim is of unsound mind. In such a situation, such consent would not qualify as legal consent under the law. We have instances where sexual intercourse is indulged by people who are unable to consent for sexual activities by reason of being underage. The age of consenting for sexual activity under the Sri Lankan law is the age of 16. If you are below 16, even if you consented, it would not qualify as a valid consent.

In other words, consent should be by free will of the individual?

Absolutely right. It should be free-willed, genuine consent. What kind of activity she is getting into is contemplated prior to granting that consent.

Can you explain what passive submission and consent are, and the difference between the two?

In ‘Inoka Gallage vs. Kamal Addararachchi and Aother’, the honorable justice Asoka De Silva quoted from ‘Rao Harnarian vs.  State’, “a mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent.” The question of consent is defined as express and implied consent. Passive giving in is clearly distinguished from express or implied consent.

What is the punishment for rape?

The minimum sentence is between 7 and 20 years. The punishment would be more than 10 years and less than 20 if the act was done by a government officer utilising his authority over the individual. The punishment would also be more than 10 years and less than 20 if the act was done on a pregnant woman, a girl under the age of 18, a female who is mentally unstable, or if it was a gang rape. The punishment will be more than 15 years and less than 20 years if the rape occurred between individuals of prohibited degrees of relationship.

According to Sri Lankan law, is there a possibility where a woman can be held accountable for committing rape on a man?

In s.363 of the Penal Code, it is clear that the offence has been perpetrated by a man on a woman. So in the context of that definition, I don’t think it envisages rape by a woman of a man.

Is rape within marriage a crime in Sri Lanka?

According to contemporary criminal law, marital rape as a concept is criminalised only in the event of judicial separation under s.363A Penal Code.

But the concept of marital rape is recognised internationally, isn’t it?

It is a concept recognised in many jurisdictions. With time, the stereotypification might also change, and I think certain elements of this offence would have to be explained to our law makers.

Could we enlighten the public on the punishment for the crime of rape?

s.364 of the Penal Code states, “whoever commits rape shall, except in the cases provided for in subsections 2 and 3, be punished with rigorous imprisonment for a term not less than 7 years and not exceeding 20 years and with fine, and shall in addition be ordered to pay compensation of an amount determined by court, to the person in respect of whom the offence was committed for the injuries caused to each person.”

Can you explain what ‘institutional rape’ means?

If a person is in a position of authority in an institution, and the victim is institutionalised, and that person rapes such a victim in such an institution, it would qualify as an institutional rape.

Even when this person of authority does obtain consent, it will not be valid consent.

Can you educate the public on what grave sexual abuse means?

s.365B defines it as, “grave sexual abuse is committed by a person who, for sexual gratification, does any act by the use of his genitals or any other part of the human body or any instrument, on any orifice or part of the body of any other person, being an act which does not amount to rape under s.363 in circumstances falling under the following:

  • without the consent of the other person
  • with or without the consent of the other person when the other person is below the age of 16
  • with the consent of the other person while the other person was under lawful custody or unlawful detention
  • when the consent has been obtained by the use of force or intimidation or threat of detention or by putting that person in fear of death or hurt
  • with the consent of the other person where such consent has been obtained at a time when the other person is of unsound mind or in a state of intoxication induced by alcohol or drugs.
In the event of a gang rape, how does the law punish everyone involved in it?

If all the participants who are adduced of gang rape, have according to the evidence participated in the act of gang rape, then they will be charged if evidence has been established. If one/few of the accused has/have merely been present and has/have not actively participated, then such a person/persons will not be found guilty of gang rape.

What is gross indecency?

According to s.365A, “any person who, in public or private, commits, or is a party to a commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person shall be guilty of an offence.

Gross indecency can be committed in public and in private, if a person misbehaves grossly indecently – for example, if someone acts against the norms of decency.

What is incest? And what is the punishment attached to it?

As laid down in s.364A of the Penal Code, incest is where sexual intercourse is between parties that have been defined to be related, descendants or adoptive parents, grand children or having a relationship of siblings being a half-brother or half-sister. Sexual relations between these parties will be found guilty of incest where they would be punished under the law with rigorous imprisonment for not less than 7 years and not exceeding 20 years with a fine.

How is the victim protected by the law?

We have police stations that have special divisions for women and children. The victim will feel a sense of relief for being able to speak to a female officer. When the case is heard, it is possible to produce a video testimony of the child. The proceedings can take place ‘in camera’ – that is, with only those individuals concerned in the case.

We need to be aware of false allegations by women against men. This is a very difficult situation as the act involved just the man and the woman.

The Victim Protection Act provides for compensation and assistance if the victim is experiencing psychological trauma.

A woman can be threatened to not file a case or not give evidence. In such an instance, the punishment is very severe, and bail can be obtained only upon special reasons from the Court of Appeal.

Zeenath Zakir
Pro bono Secretary 2020-2021

The complete discussion is available on the YouTube channel ‘Law Students Association of Sri Lanka’, in all three languages.