By M.H.M.A.S. Gunawardane and P.I. Gamage –
Every citizen deserves to be protected by their legal system, and legal professionals must ensure that this occurs. People are affected in various ways by verbal crimes. Accordingly, a criminal offence is primarily based on physical (actus reus) and mental (mens rea) associations. But a crime can also happen through the “words”. This is because if the same result is obtained for different reasons, there is some connection between the reasons mentioned therein. This is well stated in the Doctrine of Dasa Akusal, which is a teaching of Buddha Damma. That is, it states that human beings are mainly done by the mind, body, and word. It seems words are too sufficient to trigger psychological and emotional pain, trauma and committing suicide, etc…Many countries have set a legal framework for crimes committed by word, but countries such as Sri Lanka do not set a legal framework for verbal crimes.
People are affected in various ways by crimes. Today a verbal crime also plays a vital role in the criminal offence sector as it can have a long-term impact on their self-esteem. It causes emotional and psychological damage, such as depression and low self-esteem. It may also make it difficult for them to concentrate and perform well in their everyday lives, as well as have it can lead to suicide and murder too. Some victims may be physically harmed as a result of the verbal abuse, but even if there is no physical damage, the long-term effects may be devastating. So it seems Verbal abuse can lead to suicide attempts in extreme situations. These teachings are mainly included in Buddhism teachings under the doctrine of Dasa Akusal as known as in Ten Immoral deeds. Due to that, the wrong conduct of human being is capable of mainly in three sectors such as by body, mind and the word. A criminal offence also happens concerning two main elements, such as physical and mental. It seems both doctrines of Dasa Akusal and criminal offence are fulfilled with the same elements. But one element of a doctrine of Dasa Akusal may silent in the elements of a criminal offence. If one result may build up with different reasons, then how would the wrong conduct with words not include the elements of a criminal offence?
Today verbal crime can take many alternative forms – jokes, spreading rumors, threats, slander, and incitement of violence or hate. It aims at humiliating, dehumanizing and making an individual or group of individuals scared. Like any form of violence, verbal crime is sometimes very destructive for the person targeted: folks that experience hate speech often feels helpless and don’t know what to try and do. They feel uneasy, frightened, and that they lose self-confidence and sometimes even attempt suicide. It seems many different verbal statements are often crimes: Repeated verbal abuse may constitute harassment, which might result in civil penalties. Lies and misrepresentations may result in fraud charges or maybe perjury charges. In an exceedingly classic Supreme Court case, the court held that “Yelling fire falsely in an exceeding theatre” creating an unnecessary panic can be criminal. Furthermore, these threats can speak to intent in cases where an individual does commit against the law. While yelling “I’m visiting kill you!” might not always result in charges, it could increase the penalties someone faces if he or she does kill the victim. In Tennessee, premeditated murder – murder within the degree – can result in execution. If a jury believes that the verbal threats proved intent, then the perpetrator could find him or herself on the cellblock.
Accordingly, it appears that the “word” can cause crimes and as mention in Buddhism under the doctrine of Dasa Akusal. Many countries such as India, United States, Canada, Germany, and Russia etc. have developed legal frameworks for wrong conduct with words and also mentioned it in their penal codes. But in a Buddhist country like Sri Lanka, the lack of a separate legal framework for verbal crimes can be seen as a shortcoming in the Sri Lankan legal system.
This research is mainly qualitative carried out by the reference of Buddhism teachings, scholarly textbooks, journals, statues and conference papers. Open-domain data were used for the analysis. This is a logical twist of legal research. Further, the study has referred to the present penal code of Sri Lanka, the criminal procedure code of Sri Lanka and Tripitaka. Moreover, international jurisdictions, international legal instruments and judicial decisions were used for the comparative analysis of the study.
The link between the doctrine of Dasa Akusal and verbal crimes
“Kaaya kamman – Didha wuththan
Wacha kamman – chathup bidhan
Manasa thrividhan chethi- Dasa kamma thatha ime”
The doctrine of “Dasa akusal” as known as “Ten unwholesome deeds”/Ten Immoral deeds is coming under the teachings of Buddhism. Gauthama Buddha at Sala village of Kosala Kingdom disclosed Saleyyake sutte discourse. One of the most important points of Buddha Damma named “Dasa Akusal describing by this sutta and the essence of the sutta can be identified as follows.
The wrong conduct of human being is capable of;
Wrong conduct with body
Wrong conduct with words
Wrong conduct with mind
The killing of living creatures, engaged in killing living creatures, being wicked with bloody hands, stealing possessions belonging to others, misbehave sexually with women/men are coming under the wrong conduct with the body. On the other hand, lying, slandering, roughly speaking, and engage in frivolous talk and gossip leading to immoral deeds of conduct with words. In the same manner, being wrong and distorted views relate the wrong conduct with the mind. As mentioned above, there is a close connection between the wrongdoings committed by human beings in the doctrine of Dasa Akusal as well as criminal offences committed by human beings in criminology too.
For that, we have to identify what is a criminal offence. Criminal offence is any act or any omission made punishable by any law for the time being in force in Sri Lanka. In other words, it is an act harmful not only to some individual but also to a community, society or the state. Mainly a criminal offence is included with two main elements.
Actus reus is the external as known as the physical element of a criminal offence. In other words, it is the guilty act of a criminal offence. It may be accomplished by an action, by threat or exceptionally by an omission to act which is a legal duty to act. On the other hand, a person should not be held guilty unless his mind is blameworthy. Apart from the actus reus blameworthy state of mind also should be proved by the prosecution to impose criminal liability on the accused. It means wrongful mind as known as mens rea.
So it is very clear that a criminal offence is happening with the elements of physical and mental. As well as the doctrine of Dasa Akusal too included these elements as wrongful conduct with the body (actus reus) and wrong conduct with mind( mens rea).Though a criminal offence can be made through wrong conduct by words too, as mentioned in the doctrine of Dasa Akusal, because the end result is same for a variety of reasons. For example, there is no difference between killing a man with a knife and verbally inciting someone to death if the end result is death. This is because in the first case the murder takes place under the influence of physical and mental factors and in the second case an oral execution takes place. Many people are aware of the dangers of physical violence and how it can impact a person, but only a few are aware of the seriousness of their words. Verbal crimes or verbal bullying are meant to humiliate or insult the victim in any way so that the bully feels powerful or strong. It may happen by itself or in combination with other types of bullying.
According to Dasa Akusal under Buddhism teachings, as human beings bullying is a form of misbehavior and that treating others in this manner is wrong. For many, words are sufficient to trigger psychological and emotional pain and trauma, which can entail years of counseling to overcome. Others are unable to recover from what they have seen. Certain words have the potential to cause a person to commit a crime, hurt themselves, or become injured in the course of daily activities. When a person has been verbally abused, it is vital to consider when it is appropriate to file a complaint. To make some kind of case against someone who has emotionally assaulted someone else, the emotional harm must be severe enough that a prosecutor is interested in investigating the matter. For example, a husband abuses his wife intending to get a divorce eventually harassing her with words such as “if you die, fine”. Here, if the wife jumps into the sea and dies, it is often considered suicide. But considering the causations, the main reason may be the words uttered by her husband. In today’s world, most people may be unaware of how harmful their words can be, or they may believe that speaking to another in this manner is somehow justified. To prevent this, people should be aware of the negative repercussions of verbal crimes before engaging in them. So these teachings are mainly included in Doctrine of Dasa Akusal as known as in ten immoral deeds and it seems that wrong conduct with words leads to a criminal offence too.
Because when someone speaks falsehood: when summoned to a court or a gathering, or his relatives’ presence, or his guild, or the royal family’s presence, and questioned as a witness thus, ‘So, good man, tell what you recognize,’ then, not knowing, he says ‘I know,’ or knowing, he says ‘I don’t know,’ not seeing, he says ‘I see,’ or seeing, he says ‘I don’t see’; fully awareness he speaks falsehood for his ends or another’s ends or for a few trifling worldly end. He speaks maliciously: he’s a repeater elsewhere of what’s heard here for the aim of causing division from these, or he’s a repeater to those of what’s heard elsewhere for the aim of causing division from those, and he’s thus a divider of the united, a creator of divisions, who enjoys discord, rejoices in discord, delights in discord, he’s a speaker of words that make discord. He speaks harshly: he utters such words as are rough, hard, hurtful to others, censorious of others, bordering on anger and cannot conducive to concentration. he’s a gossip: joined who tells that which is unseasonable, that which isn’t fact, that which isn’t good, that which isn’t the Dhamma, that which isn’t the Discipline, and he speaks out of season speech not worth recording, which is unreasoned, indefinite, and unconnected with good. That’s how there are four styles of verbal conduct not following the Dhamma, unrighteous conduct.
So according to the teachings of Buddhism, we can never say whether a person is good or bad, nor can we always say that the way people handle words is right according to its doctrine of Dasa Akusal. Thus, as long as the word is not correct, if it removes its root cause, which is the root of evil, and adds a merit cause to it, the result of it will be meritorious tomorrow through the doctrine of cause and effect.
Verbal crime in different jurisdictions
In countries such as the United States, Canada, and India, the vocabulary used and the words used are normally carefully studied by the courts to decide how distressing they are to the average citizen with sound justification whether there are multiple facts or pieces of evidence concerning the case that assists in deciding whether there are sufficient grounds for seeking compensation or litigation. In India, hate speech laws are intended to prevent strife among the country’s many ethnic and religious groups. The laws empower a person to sue someone who disrespects them “on the basis of religion, race, place of birth, residence, language, caste, sexual orientation, gender identity, or any other ground whatsoever.” Section 153A of the Indian penal code says Whoever (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, . . . shall be punished with imprisonment which may extend to three years, or with fine, or with both and section 295(A) of the Indian Penal Code (IPC) enacted in 1927says whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.
On the other hand, The Supreme Court of India issued notice to the central government on Monday, April 8, 2013, in response to a petition seeking the development of guidelines to prevent elected officials from delivering hate speeches in pursuit of their political goals. After senior counsel Basva Patil told the court that such leaders deliver hate speeches regularly, inflaming regional, religious, and ethnic passions, an apex court bench led by then Chief Justice Altamas Kabir issued the notice. He also claimed that if they are convicted after making a hate speech, they will continue to behave in the same manner after being released on bail. He argued that the rule of law should be reinforced and that such leaders should not be able to make hate speeches regularly.
According to Canadian constitution consolidation of acts 1967 to 1982 under section 319 (1) and (2) says everyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of an indictable offence and everyone who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is liable to imprisonment for a term not exceeding two years or an offence punishable on summary conviction and sub section (3) of above section says, no person shall be convicted of an offence under subsection (2) if he establishes that the statements communicated were true;(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) If, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada. On the other hand, United States Supreme Court unanimously held in Wisconsin v. Mitchell case that penalty-enhancement hate speech laws do not violate free speech rights because they do not punish individuals for exercising their right to free speech; rather, they empower courts to weigh intent when punishing criminals for behavior that is not covered by the First Amendment.
In the Chaplin sky v. New Hampshire case, the court described “fighting words” as “those that cause damage or threaten to provoke an immediate breach of the peace by their very utterance.” Article 282 of the Criminal code of Russia further includes protections against incitement of hatred (including gender) via various means of communication, instilling criminal penalties including fines and imprisonment. The German Criminal Code also criminalizes hate speech under several different laws, including Volksverhetzung. However, within the sentencing procedure, the judge can define certain principles for determining punishment. In the same way Europe and Asia Since 2002, with an amendment to the Convention on Cybercrime, the European Union mandates individual states to punish as a crime hate speech done through the internet. So it is very clear that the verbal crime teachings included in the doctrine of Dasa Akusal are identified in different jurisdictions around the world.
Verbal crime in Sri Lankan jurisdiction
Sri Lanka is a country with a population of 22 million people, two official languages (Sinhala and Tamil), and four major religions (Buddhism, Hinduism, Islam, and Christianity), as well as an ethnic representation. Unfortunately, in Sri Lankan legal system there is no set standard legal framework for how violent or offensive the victim’s language can be. On the other hand, there are no specific interpretations or punishments for verbal crime in Sri Lanka. People in countries like Sri Lanka frequently believe that domestic violence only applies to real physical damage to another person but domestic violence in California (United States) also involves verbal, mental, and psychological abuse. It’s vital to know what constitutes offensive language while the court is deciding if the violence was serious enough to merit coverage for the injury. In these proceedings, the words spoken are important.
There are normally a few things that must be proved for a charge of verbal abuse to be worth pursuing by a victimized party, the first thing typically entails the use of abusive, disrespectful, or offensive language on purpose. These may be anything from obscene to revolting. The perpetrator of the act should have known that the victim’s verbal attack would have some kind of detrimental effect, at the very least disability. Last, the person who got abused should have been exposed to emotional or psychological duress as a result of the words spoken to him or her. And if that was the only crime committed, as citizens we would be able to file a case for verbal harassment. But, in Sri Lankan jurisdiction we have no mechanism for this issue without accompanying intervention or criminal activity. That implies that another type of assault must have taken place as a result of this loophole. When there are no other issues, states that do not recognize verbal abuse as a crime may not consider the assault to be legitimate. Also with our legal system’s assistance, something else might be needed. Other states may have laws prohibiting the use of violent, disrespectful, offensive, or harmful language or words.
Verbal threats are tantamount to the threat of attack when dealing with this form of violence. The person who has been injured may believe that he or she is in danger. If one party is subjected to verbal assault, the party is usually the only one who causes psychological or emotional harm as a result of the ordeal. When both parties have been similarly violent, however, neither party can argue. In most cases, only one party is entitled to sue the other. When evidence is shown to the jury or judge as a picture, however, it strengthens the argument. When attempting to settle a claim for verbal assault, it is best to seek the advice of a lawyer with expertise in the field. Without legal counsel, proving the elements that must be proved may be challenging. If other issues arise, the lawyer may have the skills to make the process go more smoothly. This legal expert will increase the chances of a successful outcome. So as Sri Lanka is a leading Buddhist country and it is a pity that the legal system of Sri Lanka does not have a systematic legal framework for verbal offences, although the doctrine of Dasa Akusal contained in its teachings refers to verbal offences.
By recognizing that crimes in the Sri Lankan legal system occur not only physically and mentally, but also verbally as stated in the Doctrine of Dasa Akusal contained in the teachings of Buddhism, and by formulating a systematic legal system with penalties that are in line with them, Crime in Sri Lanka is declining and better society is emerging.
This study would not have been conceivable without the generous support given by numerous individual throughout. We extent our thanks to every one of them. Most importantly, we would like to express sincere gratitude to Mrs. MRIK Munasighe AAL & commissioner for oaths, senior lecturer at the Head of Department, Faculty of Law, KDU for the kind support and assistance given to make this success.
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*Authors are third Year LLB (Bachelor of Law) Undergraduates at Sir John Kotelawala Defense University