Decriminalization of rape through impunity for perpetrators

Photo K. Sawyer Photography © 2009

"A prominent problem with the prolonged court proceedings is the fact that time dissolves the details of the case. Many of the victims already have a hard time clearly remembering the incident as it is painful to relive it and the mind will naturally start suppressing traumatic experiences."

by Sofie Rordam

(November 22, Hong Kong, Sri Lanka Guardian) While there are countless allegations of rape and sexual abuse of women and young children within the civil society, the high numbers are not reflected in the number of cases reported. The trauma and shame that generally follow sexual abuse prevent most women from ever reporting or speaking out about it. A great fear of retaliation from the perpetrators and their acquaintances also act as a deterrent. The prevailing patriarchal mentality and lack of gender sensitivity in the security and legal system, all the way from officials at the police stations, to the hospital personnel and the judiciary hold back most victims from the process of pursuing legal action, as they rarely expect to find support but rather resistance in the system. As a result impunity for perpetrators of rape thrives in Sri Lanka and promotes the perception of rape not being a crime.

 About Writer: Sofie Rordam is a Danish writer and filmmaker currently based in Hong Kong working for the Asian Human Rights Commission, where this article originally was published.

As with the victims of all forms of violence and abuse, the people mainly exposed to rape are often the ones already victimized by society. In Sri Lanka this group is especially characterized as young women belonging to a low caste from an ethnic minority. While they are already afflicted by a low social status they are further vulnerable to the social ostracism relating to victims of sexual abuses.

Perception of rape in society

The patriarchal traditions of the Sri Lankan culture are deep-rooted. Reporting rape can be an unbearable challenge in Sri Lanka. Generally there is little trust in the police and the stations are mostly male-dominated. It requires tremendous courage and fortitude from a woman to decide to report a rape incident, since she has no insurance that her statement will be taken seriously and that she will not be harassed. There have been countless reports of police officers refusing to file the rape victim's complaint and verbally or physically harassing her, claiming that the rape was self-induced or blaming her for being a prostitute.

The mentality of not considering women subjected to rape as victims is prevalent in all aspects of society in Sri Lanka. Marital and domestic rapes are everyday-life for many women and girls and often just accepted as a part of family life.

The discrimination these women face is exemplified through the case of Iresha Sandamali Ariyaratne. Iresha was 15-years-old when she was threatened and raped by two men on December 29, 2006. She was refused entry to her school by the school Principal after the case became publicly known. The principal stated that she was a disgrace and a bad example for other students.

Even the convents, where many victims of various crimes will seek shelter are seen to refuse victims of rape on the grounds that they are unclean or sinful no matter the circumstances for the rape.

Mental and psychical scars

As rape itself is a horrible and degrading experience, the traumas and complications that follow are often at least as eminent with the social stigma having a vast impact. The experience of rape is devastating to a person's character. An important aspect of the rape of young girls in Sri Lanka is the fact that by depriving young girls their virginity, the perpetrators also deprive them of their future. In Sri Lanka as in many other Asian countries, a girl's virginity has a crucial impact on her future in terms of her social status and reputation and hereby her options of marriage. Two qualities are extremely important for a girl to secure her a reasonable future, her education and her virginity. Rape deprives her of both. If the case is reported, the endless court proceedings often make the girl miss school as well as affecting her general wellbeing, reserves of energy and self-esteem.

Sandamalee's delayed remedy

The case of Sandamalee from Pallekele in Kandy is a success as it is finally concluded delivering some reconciliation and justice to the implicated, but meanwhile it is also a conspicuous illustration of the problems relating to the prolonged court delays.

Sandamalee (13) was raped by her father (37) six times in the period between September 2 and September 26, 2002. Sandamalee had often witnessed her father beating up her mother when he got drunk and she therefore knew of his violent tendencies. Before the father raped Sandamalee, he threatened her with a knife. The rape incidents were revealed by the mother (34), who witnessed an incident one night at September 26 and reported it to the police on September 27. The father was hereafter arrested by the Kandy police on October 2, 2002 and handed over to the Manikhinna police, who remanded him. He was produced in court on October 11, 2002. Sandamalee was meanwhile admitted to Kandy hospital for a medical examination confirming rape and stayed there for four days.

At the time of the rape Sandamalee was in 8th grade in a college near Kandy where her family lived. Out of fear that the father would harm or even kill Sandamalee or herself, the mother removed Sandamalee from school and sought protection at The Kandy Human Rights Office. They were provided with shelter and helped through the court proceedings. After countless delays Sandamalee's trial was brought to the High Court in 2005, where it was subsequently called 23 times. Sandamalee and her mother have regularly been threatened and harassed by acquaintances of the father, who want them to settle things outside court. On these grounds a new judge finally decided to conclude the case on November 17, 2009. The perpetrator had already spent four years in remand and was further sentenced to 10 years imprisonment and fined Rs. 20,000/=.

While it is a decent achievement that the case finally came to a conclusion, the fact that it has taken more than 7 years is not adequate. At the time of the rape Sandamalee was 13 years old. At the time of the verdict, she was 20. Her teenage years have been spent in and out of hiding and courtrooms and consequently she has missed a great amount of school. Furthermore the perpetrator was her own father, which has obviously left serious emotional scars on Sandamalee and her mother. The two of them have lived in constant fear ever after the case was reported, not to mention the experience of social stigma attached the case of incest.

The unlucky combination of being a female, a minor and a Tamil

To let a case run for 7 years is highly criticisable in any event. Delaying a case with the character of Sandamalee's brings undue suffering and humiliation to the people concerned and intimidates anyone with similar cases to follow in her footsteps. The delay is furthermore making a mockery of what was supposed to be a system based on the rule of law. However the distressing fact is that Sandamalee's case should be considered as a relative success compared to the amount of similar, unfortunate cases still pending.

Jesudasa Rita from Talawakelle in Central Province is one of these unfortunates. She is a young Tamil girl, who has waited almost a decade for a verdict to be delivered in her case and she is still waiting. While Rita’s patience and sense of justice are incredible so is the absurdity of the case.

On August 12, 2001, the then 16-year-old Rita was abducted by two young men on her way home from a confirmation class. She was dragged into a car where the men took turns to rape her. Afterwards Rita managed to get to the police station, but even though police stations are required to provide Tamil speaking personnel, the station in Talakawelle failed in this. As a result Rita had to make her statement with an unauthorized interpreter and sign a Singhalese complaint. Nevertheless the culprits were quickly identified (as Rameez and Piyal Nalaka) and arrested by the police. Rita was hereafter taken to the hospital, where the case of rape was confirmed.

The two men, both from influential and affluent families, were soon released on bail. The case did not seem too complicated. However, it took the Magistrate Court 4 years to conclude, that there was evidence enough to charge the perpetrators. As a result the case was finally given to the Attorney General in 2005 to draft the indictment, which took another three years. In 2008 the Attorney General charged the suspected in the Kandy High Court, but to date no real progress has been seen and the case is still pending.

The rape changed all aspects of Rita’s life. At the time of the incident Rita had to move far away from her family and hometown to hide in shelters; again provided by The Kandy Human Rights Office. Rita has been living in hiding shelters including convents ever since. The perpetrators are using their wealth and rank to delay the case. Rita's family, who still live in Talawakelle have been looked up on several occasions and are experiencing threats and harassment from the perpetrators and acquaintances, who are pressuring them to solve things outside court and reveal Rita's place of hiding.

At the time of the incident Rita was about to finish 10th grade. Over the next one and a half months the case was periodically heard by court with Rita spending days travelling to and from the hearings which meant she missed her final examinations and consequently did not graduate that year.

As Rita's case illustrates the legal system is not minority, gender nor child sensitive.

As well as the police station not providing Tamil speaking personnel, the court proceedings were also only conducted in Singhalese and during the continuous hearings not everything has been translated to Rita. Her case suffers a lot from the inadequate and unauthorised translation of her statement when she first came to the police station, as many misunderstandings occurred and small parts of her version today conflict with the translated statement. The then 16-year-old Rita had to repeat the description of the traumatic experience again and again as the defence lawyer allegedly would question her in a humiliating and sometimes degrading manner. The defence is mainly based on allegations of Rita being a promiscuous girl and a prostitute. The case is public and attracts a big audience, which have further intensified the social stigma Rita is experiencing.

The distressing fact is that Rita has now spent almost a decade in hiding and in constant fear. The incident of the rape was a nightmare in itself, but with no conclusion coming to the case, she is still re-experiencing it every day and has a difficult time moving on with her life.

Memories cease as proceedings are prolonged

A prominent problem with the prolonged court proceedings is the fact that time dissolves the details of the case. Many of the victims already have a hard time clearly remembering the incident as it is painful to relive it and the mind will naturally start suppressing traumatic experiences. The details blur with time and the victim may find it hard to remember what actually happened back then and mix it up with what the dim memory has constructed over time. Especially children and young people will find themselves confusing details as they are most susceptible and sensitive to the development of memory and the distress of going through a trauma.

Consequently, in many cases victims will give conflicting statements over time, which make judges and lawyers doubt their cases. The perpetrators obviously wish for this effect while they push for delays.

Lack of victim protection

By reporting the case a woman expose herself to great danger of further violence from the perpetrator or his acquaintances and will have to go into hiding while the case is running. Most women depend almost solely on their partner economically. They have no means to provide shelter or to sustain their livelihood if they go into hiding. With no official victim or witness protection, the woman cannot rely on the state to provide her shelter or aid for the legal process. These are some of the aspects that will generally prevent a victim from taking the case to court, as she will never be able to afford legal fees as well as transportation to and from court, sometimes day distances. A few private organisations run shelters for abused women, but the only actual refuge for victims in Sri Lanka is the Kandy Human Rights Office.

Father Nandana Manatunga established the office in 2001 out of frustration with the lack of state initiatives on the matter. The Kandy Human Rights Office does not only offer shelter, but provides legal aid, lawyers and help with all other aspects relating to a case as bringing the victim to and from the court, guide her through court proceedings and offering trauma counselling. The support during court proceedings is crucial for the victim to understand the procedure and get the mental strength to attend the hearings.

In very few cases the court has ordered police protection to a victim. However, the general public has little trust in the police as an independent institution and many of the victims have had bad experiences at the police station making their complaint in the first instance. It is not unusual that police personnel are involved in the case or are connected to the perpetrator. With the well-known politicisation and complete lack of independence within the security system, this is considered a very unreliable and untenable solution.

In July 2007, the initial steps were taken by the Sri Lankan government to introduce a piece of legislation for protection of victims and witnesses. The draft bill was forwarded to the Ministry of Justice for consideration, but as more than three years have gone by nothing has ensued. The draft bill was most likely presented as a response to the strong pressure put on the government by the international community to legislate on the matter. The draft bill put international voices to silence for a time and no steps have since been taken to implement it.

The security system deeply implicit in perpetrators impunity

An 18-year-old girl from Thumba Kara Vila Yaya village in Central Province, for security reason named Ms. X, experienced the absurd logic reigning at the police stations regarding rape. On November 16, 2008 she was abducted by Mr. Sanjit, a staff member of the Civil Defense. He followed Ms. X on the street, etherized her and brought her to his house where he raped her and kept her to the next day trying to convince her to marry him. He eventually let Ms. X go to the police station, but the officer present at the station refused to take her complaint, scolding her of making such allegation about Mr. Sanjit. Later on the police officer did file a complaint, but forced Ms. X to sign it without letting her read it. Afterwards other officers joined in and started threatening Mr. X with 20 years imprisonment and even killing her if she did not withdrew her complaint. Nevertheless, by pressure from her relatives, Ms X was taken to hospital where rape was certified and she spent 9 da ys for treatment.

The police have since failed to take any legal steps to investigate the case and the local police keep insisting that Ms. X should withdraw her complaint and marry Mr. Sanjit. Despite petitions being written by Ms. X to several official authorities, no action has been taken.

Impunity as a remnant of the past

During Sri Lanka’s civil war rape was used in a massive scale as a weapon to spread fear and terror and to humiliate and demoralize especially the Tamil communities and destroy ethnic bonds. When most of the North Eastern Tamil regions were under the Sri Lankan Army’s control, rape, torture and murder were used in a high scale to subjugate the Tamil population. Soldiers in the Sri Lankan army were encouraged to use rape as a war tool by their military leaders not to forget government officials. Consequently, the use of rape is a deeply rooted method of control within the security forces and the impunity that reigned back then facilitated the perception of rape not being a crime. In a war-thorn society this perception is naturally canalized to the civil society. It encourages potential new perpetrators and decriminalizes rape

Decriminalizing rape

Denying a victim her right to seek redress together with the extensive court delays entirely undermines any principle, which a rule of law system is based on. It especially breaches the right of the victim to an effective remedy stated in Article 2 of the ICCPR. The incongruous court delays make it nearly impossible for a regular person to stay through a court case without any support legally as well as mentally. Going into hiding means giving up home, family, school, work and sacrificing everything stable in the life of the victim adding the mental stress from fear and traumas and the constant change of lodging. The process in court and the impunity enjoyed by the perpetrators illustrate the tremendous gender and minority discrimination prevalent in the society and the reality of seeking justice in the legal system of Sri Lanka today.

Consequently it promotes a continuing practise of rape as a mean to exercise power and demoralisation as well as encourage corruption and lawlessness. All are contributing factors in the decriminalisation of rape in Sri Lanka, which leave the women with deep emotional and physical scars while depriving them of their sense of justice and any belief in a legal system ruled by law. The Sri Lankan government is responsible for failing to work for a prevention of violence against women amounting to torture and rape, for failing to take measures against the immense court delays and for the impunity enjoyed by the perpetrator. Furthermore they should be hold accountable for their lack of action taken to implement a bill on witness and victim protection.

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