Towards unshackling the freedom of sexual orientation – Analysis of Wimalasiri v. Maradana Police Station OIC and AG
The Supreme Court (SC) of Sri Lanka, not exactly known as the bastion leading the charge for the freedoms of sexual minorities, may have however, in a recent decision, provided more than a ray of hope to those fighting for the rights of certain types of sexual orientation, and thereby also perhaps signaled through this precedent, a progressive approach to be adopted with regard to possible future jurisprudence concerning the unshackling of the freedom of sexual orientation.
In a 2016 verdict that could have far reaching implications on the future of the rights of sexual minorities, the SC in Wimalasiri v. Officer-in-Charge (OIC), Police Station, Maradana, and Another, whilst acknowledging that the offence of gross indecency was very much a part of the local law, noted however that the rationale behind the repeal of buggery, gross indecency, and sodomy, as offences in England, may have been the contemporary thinking developed over the years that consensual sex between adults should not be policed by the State and also that it should not be grounds for criminalization.
The unanimous opinion of the judgment given was written by Justice (J.), President’s Counsel (PC) Buwaneka Aluwihare, with Shanthi Eva Wanasundera PC J. and Anil Gooneratne J. in agreement in the case (SC Appeal Number 32/11) – Galabada Payagalage Sanath Wimalasiri v. OIC, Police Station, Maradana, and the Attorney General (AG). Wimalasiri was the accused-appellant-petitioner while the Maradana Police OIC was the complainant-respondent-respondent and the AG was the respondent.
As per the facts of the case, Wimalasiri was initially charged along with another (R. Jeganathan) before the Maligakanda Magistrate’s Court by the Maradana OIC over allegedly committing an act of gross indecency in terms of Section 365A of the Penal Code as Amended. In the instant case, the alleged act of gross indecency was one of oral sex between two consenting (as determined by the SC) adult males, inside a van (in the rear seat) parked at a vehicle park.
Section 365A states that “Any person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure, the commission by any person or, any act of gross indecency with another person, shall be guilty of an offence.” The punishment upon conviction for the offence between adults (18 years and above) is to be sentenced to a maximum term of imprisonment of two years and/or a fine.
The trial Magistrate having found the accused parties guilty had convicted the duo and imposed a term of imprisonment (one year and a default sentence of six months) and a fine (Rs 1,500).
Wimalasiri had appealed to the Provincial High Court and the latter had upheld the conviction and sentence.
Wimalasiri had then appealed to the SC.
Regarding the offence in Section 365A, Aluwihare J. explained that it “deals with the offences of sodomy and buggery which were a part of the law in England and is based on public morality. The Sexual Offence Act repealed the sexual offences of gross indecency and buggary in 2004 and not an offence in England now. The contemporary thinking, that consensual sex between adults should not be policed by the State nor should it be grounds for criminalisation appears to have developed over the years and may be the rationale (italics by Aluwihare J.) that led to repealing of the offence of gross indecency and buggery in England.”, adding however that “The offence however remains very much a part of our law”. (The quote from Aluwihare J.’s opinion is kept intact with grammatical errors as found in here). It must be noted that it is this very same law which Britain introduced to Sri Lanka that England has since repealed.
The United Kingdom’s Sexual Offences Act 1956 was for the most part repealed by the Sexual Offences Act 2003 which came into effect in May 2004. The Sexual Offences Act 1967 decriminalized homosexual acts done in private between two male adults (in the latter case above 21 years).
Returning to the instant case, Aluwihare J. though affirming the conviction of the Magistrate which was upheld by the High Court Judge, added that since Wimalasiri and the other accused do not have any prior conviction or criminal history, to impose “a custodial term of imprisonment does not appear to be commensurate with the offence, considering the fact that the act was consensual”, and that therefore such is unwarranted. The SC thus “set aside the sentence of the one year term of imprisonment and substituted the same with a sentence of two years of rigourous imprisonment” and “suspended the operation of the term of imprisonment for a period of five years effective from the date the sentence was pronounced by the Magistrate.” At the time of deciding the case, it had been 13 years since the incident took place. The SC then dismissed Wimalasiri’s appeal.
In Sri Lanka, certain types of sexual orientation are criminalized under the archaic and draconian Section 365 of the Penal Code which (albeit ambiguously and vaguely, even though an explanation is provided in that “Penetration is sufficient to constitute the carnal intercourse necessary to the offence”) defines “unnatural offences” as being “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal”. This is an offence which if involving adults (in this case over 18 years), upon a guilty conviction, carries a penalty of a maximum term of imprisonment of 10 years and a fine.
Ultimately, even though in the instant case the SC did not consider the offence under Section 365 but instead considered Section 365A, since the facts of the case concerned two consenting adult males engaging in an act of fellatio (the males in question could be homosexual or bisexual), Aluwihare J.’s perceptive observation that “The contemporary thinking, that consensual sex between adults should not be policed by the State nor should it be grounds for criminalisation appears to have developed over the years and may be the rationale that led to repealing of the offence of gross indecency and buggery in England” may prove, hopefully in Sri Lanka, prescient.
Saliya Pieris PC who appeared for Wimalasiri, said that even though the SC cannot strike down laws, Aluwihare J.’s observation of the changes that have taken place in England – that the act in question is no longer a crime as long as it is between consenting adults – is a pointer to the direction that should rightly be taken in this regard. Citing the Report of the Departmental Committee on Homosexual Offences and Prostitution also known as the Wolfenden Report as evidence, he pointed out that the State should not intervene if it doesn’t affect public order or doesn’t bring harm to people. The Report recommended that’s since “It is not the function of the law to intervene in the private life of citizens or to seek to enforce any particular pattern of behaviour”, ”homosexual behaviour between consenting adults in private should no longer be a criminal offence”. Pieris PC also advanced the novel argument as to whether what is meant by “against the order of nature” as stated in Section 365, could be scientifically established. When pointed out that “against the order of nature” involved a fallacious moral presupposition, he concurred, adding that “Individuals have different orientations.”