By Rashantha N. de Alwis-Seneviratne –

Rashantha N. de Alwis-Seneviratne

A young girl, in the morning of her life, was brutally raped and killed in Jaffna. The cruelty and sadism of this particular incident impacted on the entire country and not just on the northern community. Rape, on its own, is a cruel act and not unknown in Sri Lanka but the heinous nature of what took place and that the perpetrators were young boys – not hard-nosed criminals or inebriated men, made the entire nation gasp in disbelief. Why and why the viciousness of the attack and of all places in Jaffna, miles away from the wicked, bustling city of Colombo, were questions from the mouths of many.

Yet, rape is commonplace and endemic in some societies. Since the Stone Age, women have been viewed as possessions of first, their fathers and then of their husbands. Rape of women or youths was common in Greek mythology. Roman Law was more progressive in that it did recognize rape as a crime if it were committed against a citizen but not of a slave. Attitudes changed with the Christianization of the Roman Empire: The first Christian emperor Constantine, redefined rape as a public offence rather than as a private wrong, which made the victim an accomplice and was disinherited, irrespective of the wishes of her family. Rape laws in the modern day attract strict penalties but whether they adequately punish the offender and can ever be a sufficient deterrent, are moot points.

One commonly believed myth is that rape is primarily a sexual act. Persons with this belief often place the victim on trial. Her motives, her dress and her actions become suspect not only to law enforcement officials but also to her family and friends. The woman’s credibility may be questioned and her sexual activity and private life may be made public. Often, the media highlights the incident rather than the crime itself and the grossly anti-social behaviour of the rapist. In the recent horrendous rape and subsequent death of a medical student in New Delhi, where she was gang raped by four people in a bus, the lawyers for the rapists were of the unbelievable view that ‘she asked for it by going in the bus at that time in the night’- the time in question being 9 p.m. In their opinion, prevention or avoidance of rape was the responsibility of the victim.

How a woman is viewed by society is quizzical and contrary. A woman as a mother, a wife or sister, is often cherished and protected but outside these relationships, as we frequently see, she is just another human being or unfortunately, be even an object of a person’s unwanted or unwarranted attention. We saw that the girl in Jaffna was the object of revenge, where the clear message was to ‘teach a lesson’ – and an act of sheer aggression but she was someone’s beloved daughter and a sister and potentially, a mother. This was obviously lost on the youth who planned and perpetrated the crime. Therefore, a woman’s position in society, I believe, is situational. That is, throughout the ages, woman’s position has been untenable, making her function fully as a woman only within a closed environment, as outside it, she is at the mercy of the co-habitees of this planet. Rape is an expression of unequal power relations between men and women. Such unequal power relations are not the result of nature or evolution but societies which, through legislation and social custom, have made women second-class citizens. Violence against women, alternatively referred to as gender-based violence, has been acknowledged as a global health problem, in part because of its impact on reproductive health and hence on fetal outcome and child health, as well as women’s health. Women are therefore, unique because they must face these consequences also and become a statistic under other issues as well and not rape alone. Any rational person would find this unacceptable but must acknowledge that it is the reality.

In 1974, Carl Weiss and David James Friar wrote that 46 million Americans would one day be incarcerated; of that number, they claimed, 10 million, would be raped. Male rape is no less unacceptable but the consequences are slightly different. It is a fact that many crimes are committed in prisons all over the world. However, the rest of us are not in prison but must still face the fact that for some, rape is inevitable. Once more, this is the reality.

While Lesotho leads the World, Sweden has the highest incidence of rape in Europe, alongside of the US, New Zealand and Colombia in South America. Egypt has the lowest rate of rape.

So what really happened in Jaffna? Three boys abducted a girl and raped her and she died. It was reported that this was primarily a crime of revenge. The fact that one perpetrator videoed the entire incident adds another dimension to the crime. Was the young girl one of the inevitable victims that makes up the statistics of rape and sexual harassment? The evidence of a premeditated plan and the brutal circumstances that led to her death clearly disproves that. Also unacceptable was the manner in which the police reacted to the incident.

It is known how physical, economic and psycho-social – war and post-conflict environments impact on children and adolescents. Sexually aggressive behavior in young men, for instance, has been linked to witnessing family violence, and having emotionally distant and uncaring fathers. Men raised in families with strongly patriarchal structures are also more likely to become violent, to rape and use sexual coercion against women, as well as to abuse their intimate partners, than men raised in homes that are more egalitarian^. The social environment within a community is, however, usually more important than the physical surrounding.

I would say that the youth in Jaffna were susceptible in many ways, most especially to the freedom that May 2009 brought in its myriad ways. The society in Jaffna and the North and East are enjoying real freedom only in the last six years. Children and especially the youth, are able to express their curiosity now and some may take it to extremes.  Even the issue of drugs probably never crossed them five years ago or earlier because they lived in a closed society, where the LTTE probably dealt the offender a heavy punishment if he indulged in such behaviour. A bird let loose from years of incarceration does not know how to fend for itself, although it would be more adept in adapting to the environment than a human. Though we are at the top of the evolutionary tree, we do not have instinctive behavioral DNA, as the animals below us do. Parents from this same environment have inadequate parenting abilities and fail to give their children the knowledge and the equipment to deal with society, when they come out of an era of suppression. Sexual harassment is a by-product of such an environment and it is no surprise that such a trend has been also reported.

In the aftermath of conflict, it is easy to underestimate the gravity of these children’s situation, as most war-torn societies are facing many other problems of equal or greater scope and resources are often stretched. Youth who have not had proper guidance about social behaviour for a long time, need to be properly rehabilitated by the government, through programmes in school.  This is a society that was repressed in every way.  Parents cannot attend to that aspect of life as they are also getting back to normal lives.  These children would not know how to handle their freedom or deal with the challenges that normally face teenagers.  When we were growing up, there was a lot of interaction between male and female schools in Colombo and many opportunities where we were able to mingle, even though they were supervised by adults.  Schools also had lectures on sex education and on other social aspects.  This is a must.  Children can be easily led astray, as I believe happened with the Tamil-Swiss National in their company.   Curiosity, lack of inhibition borne of a sense of freedom, social naivete and gullibility can play pivotal roles in the lives of young people. I believe that all of the above played a part in this awful crime.

Is the deterrent to this kind of behaviour, sufficient and effective? Article 363 of the Penal Code of Sri Lanka defines the five instances of rape and assault. The 1995, amendments also include mandatory minimum sentences for rape, gross sexual abuse, and acts of gross indecency. A High Court has since found that these mandatory minimums violate Sri Lanka’s Constitution.[1] The CEDAW NGO Shadow Report[2] concludes that this decision has increased impunity in cases of rape and violence against women because High Courts are issuing suspended or reduced sentences in rape cases but in Sarath Malalasekera, Justice P.A. Ratnayake held: HC not inhibited from imposing sentence it deems appropriate in exercise of judicial discretion[3]– which is certainly more promising but perhaps, the time has come to make rape a statutory offence in Sri Lanka, given the increase in the incidence of the crime.

A study made by the U.S. Department of Justice of prison releases involving about 80 percent of the prison population, found that the average sentence for convicted rapists was 11.8 years, while the actual time served was 5.4 years. This follows the typical pattern for violent crimes in the US, where those convicted typically serve no more than half of their sentence.

In the UK, rape is a statutory offence and can incur a maximum penalty of life imprisonment, depending on the extent of the culpability and harm. The planning of an offence indicates a higher level of culpability than an opportunistic or impulsive offence and it will be an aggravating feature if harm was inflicted over and above that necessary to commit the offence. The UK took a step further in R v R[4] “that there was no longer a rule of law that a wife was deemed to have consented irrevocably to sexual intercourse with her husband; and that, therefore, a husband could be convicted of the rape or attempted rape of his wife where she had withdrawn her consent to sexual intercourse” and upheld marital rape. UK has a far higher incidence of rape – 69,000 female and 9,000 male victims per year[5] with 1,070 convictions – than Sri Lanka, so one could argue that strict laws have not had an effect on the crime it wishes to prevent nor has it been able, thereby, to protect those it intended to but at the same time, the fact that severe penalties are already inbuilt in the law, allows the Courts to take advantage of them at the time of sentencing. Any rape is a traumatic and humiliating experience and although the particular circumstances in which the rape takes place may affect the sentence imposed, the starting point for sentencing should be the same, whether it is relationship rape or acquaintance rape or stranger rape.

The hue and cry that the crime in Jaffna evoked will take a while to die down and disappear into a corner of our minds. Rape is a crime against humanity, just like murder and though loved ones must bear the aftershock, the ripple effect will be felt by all who share the environment. The gang rape case in New Delhi underscored how violence against women is a global issue and not just a women’s issue, as did this crime. Only when the foundational conditions that allow this violence to flourish are changed can we hope to see a sustained reduction in the rates at which women are hurt. Gender-balance cannot be created overnight. Reiteration of gender roles in society, mutual respect and improving the status of women in society must be encouraged at a national level.

We need to help ourselves because the laws do not protect victims. Let us work, as a society, to raise men who are respectful of women. We can do this by talking about rape and such anti-social behaviour at any given opportunity and by taking the message by ourselves or a group or an organization, to the people, especially the children and youth – in the cities and villages. Empowering our youth with knowledge is the key to training them to understand and challenge age old ideas about women as sexual objects. Let us talk about what legal consent is, teach young men to see women’s humanity and the importance of expressing healthy masculinity without the need to exert power and control. Let us talk about social and cultural change when people are young.

[1] High Court of the North Central Province, Case No.HC.333/04 Supreme Court  (30/2008) (Sri Lanka) ruling that the mandatory sentence conflicts with arts. 4(c), 11, and 12 of the Constitution;

[2] Sri Lanka Shadow Report, supra note 9, at 36.

[3] The Daily News (Oct. 21, 2008)

[4] [1992] 1 A.C. 599, House of Lords

[5] The Guardian – Sources: Home Office