UNDERSTANDING THE CHALLENGES IN OBTAINING EFFECTIVE LEGAL RESPONSE TO RAPE

by admin
18-Jun-2020

 

Women hold placards during a demonstration to mark “International Women's Day." The campaign organized by Women's Education and Research Centre (WERC) was a call to bring an end to the rising rape, domestic violence and gender based attacks on Sri Lankan women.

In the past, movements to end sexual violence have challenged cultural norms that often hide these incidents from the public eye owing to societal attitudes. Women’s groups around the world have conducted wide ranged campaigns on raising awareness on the issue of violence against women, demanding quick and effective legal redress to cases of rape and sexual abuse.

 Sri Lanka ratified CEDAW in the year 1981 and has taken steps to address the issue of violence against women through amendments to the Penal Code, criminalizing hidden issues of sexual harassment, grave sexual abuse and domestic violence. Although this has helped address the issue, legal redress still remains slow and ineffective and violence against women is still a serious issue in the country. The name is given is the same procedure rather

 ​​​Recently, the ground breaking anti- sexual harassment movements, #Me Too and Times Up elevated global consciousness surrounding the issue. In 2017, the #Me Too movement and its iconic hashtag went viral on social media as a vehicle for women to share their stories of sexual harassment.  In response came Time’s Up, an initiative that connects those who experience sexual misconduct with legal and public relations assistance. Most feel that these are successful mechanisms that can be a preventive measure to future incidence of sexual harassment. 

It is estimated that approximately 35% of women worldwide have experienced some form of sexual harassment in their lifetime (UN Women, 2019).  UNFPA estimates that 1 in every 4 women in Sri Lanka have been raped by the time she reaches 18 years.

To put into perspective the ineffectiveness of the law, Ms. Kamani Jinadasa, Executive Director of Shanthi Margam Lanka recently speaking at a meeting to review the progress of the ‘End Corporal Punishment 2020’ campaign revealed that "It was shocking to see that over 97% of rape cases do not come before the legal process as the victims tend to suffer silently."

Picture Source: http://www.ft.lk/opinion/Anger-vs-love-No-one-hits-with-love-to-discipline-a-child/14-672437

 

Last year, the Sri Lankan chapter of OXFAM, launched a successful campaign titled “Not on my bus” which encourages public action and involvement in addressing the issue of sexual harassment during travel.  This issue has been picked up by various sectors.

The Grave Crimes Abstract which is published by the Sri Lanka Police each year includes statistics on rape. Data for the period 2006 – 2018 have been extracted below:

 

Year

 

Total      No. of rape Complaints

Plaints filed

Convictions

Acquittals

Total Disposed of

Investigations pending

Pending in Magistrate’s Courts

Pending in HC/DC

Pending in AGs Dept.

Total Pending

2006[1]

1463

295

1

6

55

795

234

45

324

1398

2007[2]

1397

264

3

2

35

874

219

34

229

1356

2008[3]

1582

238

3

3

49

1057

207

13

253

1530

2009[4]

1624

280

---

3

50

1091

264

5

208

1568

2010[5]

1854

167

3

1

53

139

148

9

240

1794

2011[6]

1870

235

2

2

45

1344

206

20

249

1819

2012[7][8]

460

44

---

---

10

393

44

---

11

448

2013[9]

2181

234

7

4

56

1410

494

6

209

2119

2014[10]

2008

249

1

0

36

1159

235

2

576

1972

2015

379

88

0

0

12

232

83

2

48

365

2016

350

67

0

0

11

230

58

7

42

337

2017

294

52

0

0

9

204

47

2

28

281

2018[11]

345

40

 0

0

5

269

37

26

2

334


Source: Sri Lanka Police

 

[7] Statistics are only available for the 1st Quarter of 2012.

[9] Grave Crimes Abstract 2013. Available at: https://www.police.lk/images/others/crime_trends/2013/grave_crime_abstract_2013.pdf

 

The above statistics show that the conviction rate for reported rape cases is extremely low. It also appears that although there is a significant number of complaints being lodged regarding rape only a handful of cases are taken up and concluded with a conviction or acquittal. Additionally, it is observed that there are a large number of cases pending at various stages of legal procedure, before various courts and in the Attorney General’s Department.

Taking the above statistics into consideration, in 2019, the Women's Education and Research Centre (WERC) commissioned by the National Committee of Women (NCW) undertook a pioneering pilot research which sought to understand the challenges in obtaining effective legal responses to rape in Sri Lanka. The study examined the reasons for delays and low conviction rates in rape prosecutions in the Colombo District. It looked at the reasons for delays in both Magistrate and High Court cases of rape through the examination of 10 case records.

The legal process of prosecuting rape commences with the lodging of a complaint at the Police. Once a complaint is lodged, the Police will commence investigations and periodically file B reports at the Magistrate’s Court which has jurisdiction. Once a complaint has been filed, the complainant is referred to a Judicial Medical Officer (JMO), a psychological evaluation and the STD Unit. 

The analysis of case records revealed that there was a significant delay in examination. A forensic medical examination is most useful within 72 hours of the incident (Magalhaes et al, 2015). In majority of cases, the examination was delayed, in some cases it was delayed for over 72 hours.

Once the investigation concludes, the Magistrate’s Court (MC) commences a Non-summary Inquiry (NSI). The study found that there are delays in the NSI Inquiry, owing to lack of documentation of extracts.

There is a perception that a majority of cases filed in the MC do not proceed to trial in the High Court (HC), and thus, the study also focused on assessing the manner in which cases proceed from the MC to the HC.

Speaking about the research findings, Ms. Sandani Yapa Abeywardena - Lead Researcher revealed that there were many reasons for the cases not to proceed from MC to HC. One reason being that the Prosecutrix has gone abroad and not returned. She further stated that, interviews with investigative officers revealed that there were times when the complainant does not wish to pursue the case for a multitude of reasons. Firstly, officers noted that complaints were made by victims in the hopes of immediate punishment or hoping that the Police will deliver some form of justice at that stage itself. Once they become aware that they may have to go to Court, some complainants tend to shy away from the process.

In some cases by the time the matter comes up for trial in the HC, or even the NSI at the MC, the complainants have gotten married, sometimes without disclosing the incident to their husbands. In such cases they fail to attend court. Failure to attend may also be because of economic reasons where the victim does not want the employer to be aware of the case. In the case of daily wage earners, the victim does not want to lose her day's wage.

 

To view the complete interview of the Lead Researcher, Ms. Sandani Yapa Abeywardena, please visit the following link:

 

https://mail.google.com/mail/u/0/images/cleardot.gif

https://mail.google.com/mail/u/0/images/cleardot.gif

 

https://drive.google.com/file/d/1-0rktiOTxZGIjCTXkVfWW76HeKv-KBzf/view?usp=sharing_eil&ts=5e323119

 

 

Despite the mechanisms in place, the legal process do not succeed as quickly as desired owing to the fact that there is little awareness of the mechanisms across various actors (Eg: victim, Police, JMO). As a Women's organization, it calls upon us to create this awareness across the society. 

References

Magalhaes, T., Dinis-Oliveira, R. J., Silva, B., Corte-Real, F. & Vieira, D. N. (2015). Biological Evidence Management for DNA Analysis in Cases of Sexual Assault. Scientific World Journal. doi: 10.1155/2015/365674.

UN Women (2019) Facts and figures: Ending violence against women https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures

Shari Jayawardhana

Women's Education and Research Centre (WERC)

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