Law and Sexuality: Speech on the amendments to the Penal Code,

19 September 1995

Our Penal Code is modelled on the Indian Penal Code, which was introduced in the Legislative Council in 1836. The author of this legislation was Thomas Babington Macaulay, who was the first Law Member of the Legislative Council who believed that law reform in general, and "codification in particular should be animated by the principle; uniformity where you can have it; diversity where you must have it; but in all cases certainty". Vasudha Dhagamvar has pointed out, "the Indian Penal Code is an astonishing piece of work, even more so when one realises that it was drafted in two years by a young man without prior experience of drafting, and virtually single-handed".

The Penal Code embodied the moral standards and social perspectives of an early Victorian age. There are several profound changes in contemporary mores and values relating to gender equality, which must be reflected in the law. The first development relates to the growing global consciousness with regard to the phenomenon of violence against women and the need for concerted international and domestic action to address the causes and consequence of such violence. These concerns are reflected in the Vienna Declaration of 1994, the Beijing Platform of Action, and the decision of the U.N. to appoint a Sri Lankan lawyer, Radhika Coomaraswany, as its Special Rapporteur with a global mandate on this issue. The second relates to the growing sensitivity to the reproductive health rights of women and the right of an individual to have control over and to decide freely on matters related to her body and to her sexuality. A related concern relates to the health risks to which women are subjected to as a result of unsafe abortions, which threaten the lives, particularly, of the poorest and youngest. A third development relates to the need to be responsive to the alarming incidence of sexual exploitation of children, including the phenomenon of child pornography. Finally, there is a need for the law not to discriminate and punitively deal with persons with different sexual preferences, and to move away from puritanical attempts by the law to legislate morality.

Our law relating to abortion is in urgent need of reform. There is no other aspect of our criminal law that is so discriminatory in its impact on different social classes. The more affluent social classes are able to have recourse to a simple surgical procedure performed by an experienced practitioner to terminate an unwanted pregnancy. The predicament of the poor and the unmarried, who have to turn to illegal abortion clinics or quacks, is deplorable. One gynaecologist has concluded that illegal abortions are one of the major causes of maternal morbidity and mortality in Sri Lanka. One estimate is that at least 20 per cent of the hospital beds in gynaecology wards are occupied by women who have developed complications as a result of unsafe abortions. I, therefore, strongly favour the liberalisation of the law on abortion, and would go much further than the proposed amendments. I would, in this regard, commend the approach of the United States Supreme Court in Roe v. Wade, where the majority ruled that, prior to the end of the first trimester of pregnancy, the attending physician is free to determine, without regulation by the state, whether in his medical judgment the pregnancy should be terminated. From, and after, the end of the first trimester, the state may regulate abortion procedures to the extent that the regulation reasonably relates to the preservation and protection of maternal health. I would support the decision to decriminalise abortion and to repeal the existing provisions in the penal code. We need assurances that a more humane and realistic regulatory framework, with a focus on reproductive rights and maternal health, will be introduced very shortly by the government.

One of the important changes introduced by the law is the creation of the new offence of sexual harassment. Sexual harassment in the workplace and elsewhere has become an increasingly important issue on the agenda of the women's movement. Several legal scholars have struggled to frame an adequate definition of sexual harassment, having regard to the diverse behaviour for which regulation is ordinarily sought. Radhika Coomaraswamy has emphasised two important ingredients. First, it is conduct that is unwanted by the recipient - in other words, unwelcome sexual attention. Second, it is conduct that, from the recipient's point of view, is offensive or threatening. The German Penal Code and the Penal Code of Denmark have focused on contexts of subordination or financial dependence where authority is abused to extract sexual favours. The present amendment is not so limited, which is important as women walking in public places and travelling in public transportation are often subjected to a great deal of harassment. Several foreign researchers and tourists have written to the press on this issue. In Canada employers are encouraged to issue a sexual harassment policy, which includes procedures to investigate complaints and to discipline transgressors. Clearly, this problem cannot be dealt with only by recourse to legal strategies. The community needs to be sensitised through public education programs. The Australian Human Rights and Equal Opportunities Commission engaged in a poster, magazine and radio advertising campaign entitled SHOUT (Sexual Harassment is OUT). We need to engage in similar public education programs.

Clearly one of the key provisions in the amendments relates to the reform of the law relating to rape. Feminist writers have rightly pointed out that rape is an instrument of control in a patriarchal society, and that women's vulnerability to rape is one of the main factors that constrains her empowerment. "Rape occurs in the family as a form of marital rape or incest, rape occurs in the community, and rape occurs in situations of armed conflict and in refugee camps." Nonetheless, the law relating to rape has been inadequate, the prosecution of offenders lax, and the response of the police to victims generally callous and indifferent. The present amendment endeavours to more precisely define what constitutes "sexual intercourse" and the circumstances in which "consent" cannot be presumed. It further defines circumstances in which enhanced punishments would be applicable, such as custodial violence, rape of a pregnant woman, rape of a woman under 18 years of age, rape of a disabled woman, and gang rape. While there can be no objection to increasing the maximum penalty for such heinous offences, one remains concerned as to whether, in these and other circumstances, judicial discretion should be curtailed by the imposition of a mandatory minimum sentence. A new element is that which enables the court to order that compensation be paid to the rape victim.

The conceptual recognition accorded to marital rape represents a significant breakdown in the public/private distinction, which has hitherto constrained an effective response to domestic violence. However, the importance of this change is negated by its limitation to judicial separations. I would urge that this limitation be removed in an acknowledgment of the seriousness of marital rape. To do so would be to fall in line with several Commonwealth countries. In 1991 the Court of Appeal in the United Kingdom ruled that marital immunity is an anachronistic and offensive common law fiction, which no longer represents the position of a wife in present day society. In many jurisdictions rape has been redefined to emphasise the demeaning and violent aspects of rape rather than its sexual character. The present amendment adopts a more sound approach by creating, in section 365B, a new offence, "'grave sexual abuse".

The present amendment relating to rape closely follows the progressive report of the Law Commission of India in 1980, which subsequently resulted in the Criminal Law (Amendment) Act of 1983. The Law Commission of India in its report referred to the "radical and revolutionary change in the approach to the offence of rape; its enormity is frequently brought into prominence and heightened by the revolting and gruesome circumstances in which the crime is committed". The Commission's report dealt, in detail, with matters of procedure - such as arrest, detention, medical examinations, interrogation, and trials in camera - and evidentiary rules.

In many jurisdictions, the reform of the law has been accompanied by the creation of gender sensitive support networks. These have included mandatory examination by victims by women doctors and the enlisting of units of policewomen in each station to deal with rape cases. In other countries, rape crisis centres have provided integrated services to women victims of violence including legal services, counselling and support.

The offence of gross indecency between persons still renders homosexual and lesbian acts between consenting adults unlawful. The law should not seek to penalise adults for
their sexual preferences. As such, section 365A should be amended accordingly.

Section 286 A deals with the problems of child pornography, while section 360B deals with the problems of sexual exploitation of children. Here again we do not seem to have reliable statistics, although the problem has clearly reached alarming proportions. Some official estimates place the figure at 30,000 children who are exploited as sex workers in resort areas. A non-governmental organisation, PEACE, has estimated that the number of children between the ages of eight and fourteen who are sexually exploited is 10,000. There is an urgent need for a more systematic study of child abuse. Only a small fraction of these cases are reported and followed up. In 1990/91, only 421 cases of child abuse were reported, of which 327 plaints were filed and 76 resulted in convictions.