22 September, 2020

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The Fraught Road To Justice: Sri Lankan Victims Of Sexual Violence

By Kirsty Anantharajah

Kirsty Anantharajah

Kirsty Anantharajah

International and domestic studies, articles and reports in Sri Lanka are steadily illuminating the extent of sexual violence committed against women (and men) in the context of the war and times of ‘peace’. Justice and accountability for these harms, however, remain noticeably absent. Apart from a handful of cases, impunity forms the dominant landscape of Sri Lankan women’s experience with seeking redress for sexual violence. Hope for any relief from this current state of injustice and inaction will depend on the re-establishment of the Rule of Law; yet the numerous loci of impunity within the justice system makes this a particularly challenging task.

Institutional cultures of custodial rape and torture

In 2001, Sivamany Sinnathamby and Wijikala Nanthakumar, were arrested in their Mannar homes by navy officials and members of the Police Special Investigation Unit. They were arrested under the Prevention of Terrorism Act (PTA) and the Emergency Regulations, and were taken to the office of the Counter-Subversive Unit. The two women were brutally raped and tortured in custody: The torture continued until the women signed confessions in Sinhalese, (falsely) affirming that they were members of the Liberation Tigers of Tamil Eelam (LTTE) who had carried bombs to Mannar. When Sivamany and Wijikala were initially examined by the Judicial Medical Officer (JMO) in Mannar, no evidence of rape was reported. This outcome led to a significant community outcry and the women were re-examined by the Colombo JMO; the results of this examination showed strong signs of rape. One rationale for the initial finding at the office of the Mannar JMO, is that the women, following intimidation, did not actually allow any medical examination to occur. If community pressure did not result in a second examination, the women’s case would lack the essential medical evidence upon which successful prosecution rests. Three police officers and nine navy personnel were later identified as perpetrators.women sri lanka 2colombotelegraph

Following the police complaint made by Sivamany and Wijikala, a campaign of intimidation by the perpetrators and their associates spread beyond the victim-witnesses to the women’s community. The Tamil Guardian notes that the Mannar Citizens’ Committee, vocal supporters of the women’s search for accountability, began receiving daily calls threatening to murder all the members of the committee at the conclusion of the trial. The journalist who first reported the detention and rape of the Mannar women, was detained, interrogated and harassed by army personnel. Members of the armed forces also threatened Wijikala’s mother.

Their case finally came to trial after five years; this is not an uncommon delay. Initially heard in the Mannar High Court, the case was later transferred to Sinhala-majority Anuradhapura district in an obvious prioritisation of the accused. During proceedings, the Tamil victim-witnesses experienced further intimidation and humiliation. In 2008, the hearing was stopped on a stay order of the court, one victim-witness having fled the country, and the other refusing to give evidence.

This case in many respects exemplifies women’s lived experience of Sri Lanka’s Rule of Law crisis. This 15 year old case paints an alarming yet accurate picture the search for justice for sexual violence in Sri Lanka: the women who lived through this brutal attack in their early 20s are now approaching 40; their case still has not been met with proper process or a just outcome; and the structural problems that plagued their path to justice remain largely unchanged in today’s Sri Lanka.

Arrests under the PTA and confessions in custody

This practice of using rape and torture to coerce false confessions and admissions was commonplace during the war and endures in this post-war period. This institutional practice is strongly linked to the legislative framework under whose auspices these arrests generally occur – The PTA.

The Prevention of Terrorism (Temporary Provisions) (Amendment) Act No. 10 of 1982 (PTA) despite bearing the words ‘temporary’ within the title itself was made permanent in 1982, and still constitutes a significant part of Sri Lanka’s security and legislative framework. As put by Amnesty International, the PTA is ‘one of the main legal tools deployed by the government to silence its critics’ and places persons detained under its provisions in a type of ‘sinister limbo’.

The PTA continues to be the antithesis of progress towards greater civil rights in Sri Lanka; and its permissive provisions create legal spaces for arbitrary arrests to thrive. One example is that generally, confessions made under ‘inducement, threat or promise’ are inadmissible, however, the PTA reverses the burden of proof: confessions made while in custody are prima facie admissible unless the victim can show that they were made under duress. Furthermore, the PTA confers a broad immunity on officers for actions done in ‘good faith.’ While it is hard to understand how rape or torture could ever be considered an act done in ‘good faith,’ this section adds to the largely uncontroverted expectation held by some members of security forces that rape in custody will not be met with legal consequences. This expectation is bolstered by the fact that the PTA, with its historic context of operating amidst secrecy, does not provide for access to lawyers nor does it facilitate access to independent medical assessment upon arrest. These are a just some of the legislative hooks upon which rape and sexual violence in custody are hung. The PTA must be repealed.

Once a complaint is made prosecution of these cases require overcoming further obstacles. It is important to note that prosecution of rape cases rests with the Attorney General, whose office is vested with broad powers to withdraw indictments and terminate High Court proceedings. Where state actors are involved, prosecution has been conspicuously reticent.

The transfer of criminal proceedings between courts is one reflection of an overwhelmingly politicised Attorney General’s office. This practice exacerbates enduring ethnic barriers to justice: Tamil women whose cases are transferred to Anuradhapura find the travel challenging, they may not understand the language used in court, and often feel like they are in an antagonistic space.

There is also no redress if victims and witnesses are intimidated in the way that Sivamany and Wijikala were intimidated. Even though Sri Lanka’s Parliament passed the Witness Protection Bill in February last year, this does not signify a different civil context than that survived by Wijikala, Sivamany and their community. The Witness Protection Act is deeply flawed; the fundamental issue is that there is no independent division outside the Police Department responsible for protection of victims and witnesses. Where a victim seeks protection following violence by a state actor, their protection is entrusted to the same department to which their abusers belong.

The delays in the judicial system further compound this lack of security, discouraging complainants to pursue justice. Partly due to Sri Lanka’s two-tier system involving protracted non-summary inquires, many cases take between 9 and 12 years to reach a conclusion. Thus although Wijikala and Sivamany survived the initial attack, and years of relentless intimidation, they eventually gave up on the pursuit of justice.

Hope for any relief from this current state of injustice and inaction will depend on the re-establishment of the Rule of Law in Sri Lanka; yet the numerous loci of impunity make reform a particularly challenging task. The Sri Lankan state must begin to engage with the voices of Sri Lanka’s women who have been brutalised and left to navigate a fraught system. Remedying these domestic systemic ills is a crucial step to the state repairing its relationship with its women.

*This article stems from Chapter 2 ‘ Crisis of Legal indeterminacy’ that the author co-wrote with Kishali Pinto-Jayawardena in The Search for Justice: The Sri Lanka Papers (Zubaan: 2016). A version of this article appeared in the Open Democracy. Kirsty Anantharajah is a Sri Lankan-Australian feminist and legal scholar based in Sydney, who is currently working in refugee protection.

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Latest comments

  • 7
    26

    Kirsty Anantharajah:

    Incest and Child rape is normal among Tamil castes. LTTE is well known to use raping and brain washing to produce Suicide bombers. What Tamils have is all Indian habits. Even in India, raping of low caste women is common by so called high castes.

    Why do you people never write the truth and talk something else.

    • 17
      5

      softy,

      What a pathetic imbecile you are! The Tamils went through a steady and complete breakdown of a sense of community and moral code due to a prolonged war. There are many organisations that are trying their best to reinstall values and virtues.

      You need to look at the Sinhala society first; you send thousands of your women to Middle East for slave labour and what happen in many of those households! You are a cheap moron and a canker of the Sinhala sciety!

    • 9
      2

      The soft Jimmie must have enjoyed a welcome erection while writing his comment. Softie please invite your friend to come and have fun with your sister: you might even get a stronger erection while watching. Imbecile.

    • 6
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      [Edited out] Jim Shitty, you scumbag there is no end to your stupidity.[Edited out]

  • 3
    2

    Kirsty Anantharajah

    RE: The Fraught Road To Justice: Sri Lankan Victims Of Sexual Violence

    “International and domestic studies, articles and reports in Sri Lanka are steadily illuminating the extent of sexual violence committed against women (and men) in the context of the war and times of ‘peace’. “

    So, who is protecting the culprits of sexual violence? The Killers?
    In the case of crooks, thieves and killers, who is protecting them?

    Last week, President Gon Gamarala, tried to protect the criminals. probably after taking huge sums of money as bribes for Gatabaya and other Rajapaksas.

    From the Bulath vine, Vettila Vine, Grape Vines news…

    2 hours discussion between president Maithri and culprit Gota ! Maithri’s ‘cyanide’ tale and how he burnt his tail..

    Vine News from Oct 15, 2016:

    President Maithripala Sirisena the ‘great villager’ . Gon Gamarala, who had never heard of the tale of of the long living prince ‘ look far without looking near’ even when his aachi (grandmother) was feeding him , related a ‘ cyanide ‘ story which created a feeling of triumph and joy among the brutal corrupt group of scoundrels of the nefarious decade gave a fresh lease of life to them and provided encouragement to more corruption and murder . This in fact is tantamount to most ungratefully and unmercifully hitting below the belt of the pro good governance masses .

    The president on 13 th night provided an opportunity to ace rogues like Mahindananda and Wimal Weerawansa the ‘rabid dogs and rascals ’ of the Blue Brigade to indulge in claptraps (Balubana) and empty rhetoric via the Rupavahini news channel to be viewed by the pro good governance masses in order to lend support to the accusations made by these rascals ,rogues and scoundrels that the independent Commissions are pursuing political agendas when these Commissions in fact are the fruits of the hard fought struggle over decades launched by the law abiding civil population .

    Consequently ,these rabid dogs and cunning wolves cashing in on President’s statement , went on barking and howling ‘ you saw , the president is saying what we said’ the whole of yesterday.

  • 14
    5

    The foundations on which this much touted Sinhala Buddhist nation is built on is composed of the blood of the minorities and unspeakable other forms of violence such as rape. Such a foundation is bound to give way sooner or later.

    • 3
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      BBS rep.Let me correct you.”The foundations on which this much touted Sinhala Buddhist nation is” This nation, Sinhala and Tamil was built on genocide of Kuveni’s people including Vijaya’s own children by the Genocider Vijaya and his clique.The socalled Sinhala and Tamil nation is nothing but the descendants of Vijaya’s Thugs and the 700 prostitutes brought from India. Even after that the socalled Princes brought down from India were either prostitutes of destitutes.

      You and I are their descendants.Welcome to the family.

      • 0
        0

        Upali Wickramasinghe and BBS Rep

        “This nation, Sinhala and Tamil was built on genocide of Kuveni’s people”

        They were the original inhabitants of the Land, walked to claim the Land, called the Native Veddah Aethho, aka Adivassi, by the Para-Sinhala, Para-Tamils and other Paras from India, Baharat.

        Mitochondrial DNA history of Sri Lankan ethnic people: their relations within the island and with the Indian subcontinental populations

        Journal of Human Genetics (2014) 59, 28–36; doi:10.1038/jhg.2013.112; published online 7 November 2013

        Through a comparison with the mtDNA HVS-1 and part of HVS-2 of Indian database, both Tamils and Sinhalese clusters were affiliated with Indian subcontinent populations than Vedda people who are believed to be the native population of the island of Sri Lanka.

        http://www.nature.com/jhg/journal/v59/n1/full/jhg2013112a.html

  • 5
    17

    Tamils are unbelievably dishonest, shameless and and have no self respect. This woman comes and talk about rapes, this is how LTTE helped their own women.

    The state of the female LTTE cadres was tragic during the last few days in Mullavaikkal. They had no alternative but to commit suicide there.
    Some female sea tiger cadres wore armour filled with bullets, were asked to stay inside vehicles full of gunpowder and other explosive items, until they received orders from Soosai. Several injured female cadres swallowed cyanide and committed suicide inside their bunkers. Other female fighters were confused not knowing what would happen next. They never received any information. I didn’t know if female cadres were included our leaders and other rebel leader s exit plan.

    Were those two women, that were supposed to be raped, virgins or were LTTE cadres ?

    • 13
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      ‘Jim Softy’ is clearly addled in the brain, and could not possibly speak for any person endowed with basic decency. ‘Jim’ just maybe the first person to be born without involvement of a woman, which could possibly account for his crass irrationality.

      WE Sri Lankans need to know the full extent of the damage caused by the long and weary self-inflicted war that we were led into by our cunning, devious and power hungry politicians who were after the soul and vote of the majority.

      Identifying violations is only half the problem.

      Sri Lanka still suffers the curse that law and order, and justice is applied haphazardly, selectively and often expediently. As teacher would say, there is ‘much room for improvement’. Even the present government cannot be absolved from this unfortunate trait.

      Violations against person and property must be identified and closure brought about. It is now nearly seven years since the armed conflict ended. Alas, and sadly, the roots of the conflict are being addressed far too slowly. AND restitution and closure for the damage inflicted during the conflict is even slower.

      The lethargy of the government of Sri Lanka taints its standing both at home and internationally. But, who cares?

      • 3
        0

        Spring Koha, you are giving too much respectability to this impotent reptile by addressing it in ‘civilized’ English. Please keep in mind when responding next time. Thank you.

  • 6
    3

    Kirsti Anantharajah

    I believe that your narrative needs more superscribe power to your arm.
    CT needs more informed articles like this.This is the most relevant debate in town. *Is is possible to restart the old cases?

  • 8
    2

    Jim Softy the Dimwit and Classic Stereotiper

    “Tamils are unbelievably dishonest, shameless and and have no self respect. This woman comes and talk about rapes,”

    Are you saying that every Tamil in the world is Dis honest and Shameless?

    Are you saying that all Tamil women are Tigers?

    Do you think Sinhala war heroes are confirmed rapists ?

    What has rape got to do with conducting war?

    Wake up man you are a Male Chauvinist Pig Dog -Scum bag!!!

    • 2
      2

      Please can someone dye this Softie’s anal hair? I get a better release when I slam a blond haired arse.

  • 4
    0

    It’s sad that women and children aren’t safe in our society.

    During our childhood; children, even primary students were sent to school alone but alas what’s the situation now.

    Recently I had a chance to chat with a father waiting near a tuition class for his child. I thought he was waiting for his daughter but to my amazement he was there for his son studying in A/L class.

    So it should not be difficult to understand the suffering and challenges of women and children in a battle ground.

    We should not allow crimes to go hidden behind false war heroism. It’s a collective responsibility.

  • 4
    1

    Kristy, good work. Keep it up. This should be widely exposed using all forms of media. The solidarity and support of my madness is yours..

  • 0
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    [Edited out]

  • 3
    0

    Jm softly is like jimmy Savile of the BBC a nasty perverted fiend but then again he comes from a group of people who see nothing wrong in sending their women to be sex slaves in the Middle East

  • 1
    0

    Sri Lanka is NINTH in the list of incidence of Sex Crimes ( and FIRST in the incidence of Suicides ) in the world.

    http://www.wonderslist.com/10-countries-highest-rape-crime/

    Complaints of sex crime by female complainants are very difficult to make in police stations where there are no female police officers to record them.
    The Justice Minister appears to wish to make this even more difficult, by his proposal to prevent any complainant to be advised by an attorney while recoding of ANY complaint for the first time, in police stations.

    We need more civil activists of the caliber of Kirsty Anantharajah.

    The Bar Association should empanel a list of female attorneys to assist women who wish to complain/record sex crimes.

    • 0
      2

      Meanwhile We Thamizh somehow managed to miss out the fact that in the same list, positions 1-8 are occupied by the heroic defenders of freedom, justice, dignity, human rights, Thamizh Eezham etc etc :D

      We Thamizh and our ‘sources’ :D

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