Child Abuse And Compensation

By
Tirantha
Walaliyadda PC

It is said that an allegation of rape is the easiest to make and the most difficult to refute- as in bribery.

In layman’s language there are two general categories of rape in terms of the victim- the rape of a minor and the rape of an adult. In terms of the original sections in the Penal Code the age of consent to sexual intercourse was 12 years and above.

Any intercourse with a child under 12 with or without consent amounted to statutory rape. Subsequently the law was amended by raising the age of consent to 16: in other words, intercourse with or without consent with any girl or boy under 16 becomes a statutory rape entailing severe jail terms.
Until recently, rape carried a mandatory jail sentence: this was changed by a judgment pronounced by the Supreme Court on the basis that such a provision was unconstitutional and returned the discretion of sentencing to the Court.
With all respect to the Supreme Court, this may be where the mistake was made- not legally but practically- because this led to the practice of awarding massive compensation to minors by the High Court and the settlement of cases of rape of minors with suspended sentences to accused, who agreed to plead guilty and pay compensation.
The other confusing amendment was that the law was statutorily amended to the effect that to prove a case of rape, injuries on the victim need not be present nor proved.
In other words the absence of injuries does not disprove rape.
This may be true in the case of minors: but is rather preposterous in the case of alleged adult victims.
In the case of an adult victim common sense dictates that there should be some physical evidence of force on the victim.
At least one expects injuries on the rapist if there had been resistance by the victim. Most often the alleged rapist and the alleged victim are as clean as whistles in terms of injuries- not even a scratch on either party.
It would appear that these are cases of consent.
But yet the system goes ahead to forward indictments and convict the accused and sentence him to years in jail and award compensation to the alleged victim.
There may be situations where the fear of death or injury caused involuntary consent by the victim. One solution to this problem is to make trials by jury mandatory in cases of rape.
As one illustration there was a case in Avissawella where the alleged victim asserted that she scratched and clawed and fought like a tigress in resistance and the defence showed her the Medico Legal Report which did not indicate a scratch on her body- the jury unanimously acquitted the accused, of rape. The result may have been different before a judge without a jury.
If an accused is found guilty by a unanimous verdict of a jury for the rape of a minor he may be sentenced to the maximum punishment prescribed by law. That is not the issue: the issue is the awarding of large sums of money as compensation to the minor.
There are instances where one minor has lodged complaints of multiple rapes by different persons on different occasions. Each of the alleged offenders was taken into custody and remanded and will in all probability be indicted before the High Court.
If each pleads guilty and pays compensation to the minor to avoid the risk of a conviction at a trial and a long jail term -not necessarily that they are guilty in reality- what will be the situation?  Leaving the credibility of the allegations aside, maybe it is time that the law makers reconsidered the advisability of the awarding of compensation to minors in these cases: The issue is, are we sending the correct message to the children? And to their parents/parent/guardians? Or are we encouraging the prostitution of minors?
The next issue that I wish to raise is regarding the age of consent. As I have said before the original Penal section set it at 12 years, It was comparatively recently raised to 16. So, any person having consensual relationship with a girl under the age of 16 is guilty of sexual abuse of a minor and is liable to the maximum punishment which includes a very long jail term unless there is a settlement as I have said before.
Recently I was told by a judicial officer that when his son turns 18 on his next birthday he would present him with the Penal Code amendment which raised the age of consent to 16 and he would advise his son that before dating a girl to check her birth certificate. This is the state of affairs.
The situation applies equally to women: if a woman has sexual relationships with a boy under 16 she is also liable for grave sexual abuse or rape as it is commonly called.
This article is not in defence of seasoned adults who lure young persons to their offices and houses and entice them to sexual activity knowing that they are underage. This is an overview of the general situation.
Statistics apparently show that there has been a significant increase in the number of child cases: to my mind one major reason for this was the increase in the statutory age of a minor subjected to these affairs from 12 to 16 thereby bringing in thousands more of young persons who may be having innocent affairs and thus increasing the number of cases. No doubt that there are instances of rape and maybe murder of young persons but the issue must be addressed rationally and not emotionally.
We live an advanced society from 30 years ago: even during that time there were teenage love affairs.Now we hear news that teenagers go night clubbing until the wee hours and some even indulge in Ecstasy consumption at these places.
There have been instances where teenagers have even got married and have had children and the husband is sentenced to jail thereby disrupting the whole family. Maybe these are the real issues that law enforcement should address without just setting out statistics and the number of arrests and convictions.
Statutory rape or statutory grave sexual abuse is where a person under the statutory age engages in a sexual relationship with another, irrespective of whether such person as decreed by lay law as under aged  consented or not.
Let us think of a hypothetical situation where two teenagers have an intimate relationship: in these circumstances the end result will be that the girl will be sent to a home for rehabilitation thereby breaking her spirit and ruining her life and the boy will be sent to jail making a criminal out of him or be sentenced to death and hanged as the current opinion of some learned people appears to be.
With all respect to those opinions, is this what we are looking for as the solution?
This article is not intended to advocate or defend illicit relationships in whatever form they may come. My concern is for the teenagers and young adults who get into situations in terms of the current law and what is being proposed.
Maybe clamouring for death sentences and enhanced prison terms is not the adequate solution to the problem.
The law makers must safeguard the children and not sacrifice them on the altar of political opinion and political gain or international repute.
Teenagers will be teenagers. They have always been and will always be.