Ministry of Justice Law Reforms – Protecting Child Rights or Promoting Sexual Abuse of Underage Girls?

 

2022/02/28

In the second week of December 2021, the Minister of Justice had presented a Cabinet paper with strange proposals to amend certain provisions in the Penal Code, Code of the Criminal Procedure Act and the Judicature Act for the purpose of filling the gaps in the Law of Rape and making rape of boys a crime.

In this Cabinet paper the Minister has proposed to bring about two amendments in the law relating to child abuse.

First proposal: (a) to amend the law on statutory rape enabling (i) the Police to institute criminal proceedings in Magistrate’s Courts; (ii) Magistrate to give suspended sentences to the accused in appropriate cases where the accused is under 22 years of age and the victim is over 14 years of age and under 16 years of age and the penetration had been with the consent of the victim; (iii) Magistrate to forward the case record to the Attorney General, where it appears that the victim has not consented, to consider institution of criminal proceedings on Indictment in the High Court;

Second proposal: (b) to amend S. 363 of Penal Code with the aim of facilitating legal protection for men and boys from sexual violence. In the Minister’s view, there is evidence that rape of boys is a common form of sexual violence contributing to an environment in which such violations can take place without effective penalties. Though historically, rape of only women has been recognized in law, sexual violence has been recognized not only as a women-centric issue, but as a major social problem that highlights the need for gender-neutrality in the present context. This is done in neutralizing gender in terms of the law of rape.

To give effect to these proposed amendments, the Minister has proposed: (1) to repeal S. 137 of Criminal Procedure Code on medical examination of victim and accused in case of rape and substitute a section which is gender neutral; (2) to amend S. 142 of Criminal Procedure Code to empower Magistrate to follow summary procedure laid down in Chap. XVII in case the victim is over 14 years and under 16 years and the offender is not more than 22 years of age and the offence has been committed with the consent of the victim; (3) to amend the First Schedule to the Procedure Code and the Second Schedule to the Judicature Act.

By this Cabinet paper the Minister has sought the approval of the Cabinet: – (a) To amend the CPC Act and Judicature Act in accordance with the Proposal; (b) To instruct the Legal Draftsman to draft amending legislation accordingly; and (c) To empower the Minister to provide necessary guidance and issue further instructions where necessary to the Legal Draftsman on matters relating to the proposal.

From these propositions it is clear that the Minister or his legal advisors have no clear understanding of the existing law and the procedure relating to the sexual abuse of women and children.

Far-reaching amendments were brought to the Penal Code and the Criminal Procedure Code in 1995 with a view to enhancing protection to women and children against abuse, especially sexual abuse. The following are the main changes brought about in the law by these amendments:

a. Creating several new offences such as incest, grave sexual abuse, sexual exploitation of children, procuration and using children for obscene publications.

b. Providing for enhanced penalties for sexual offences and minimum mandatory jail sentences.

c. Recognition of all persons under 18 years of age as children for the purpose of the offences dealt with by these amendments.

d. Increasing the age of statutory rape or consent to sex to sixteen years.

e. Granting exclusive jurisdiction over child abuse cases to the High Court

Under S. 363 of the Penal Code, a man commits rape when he has sexual intercourse with a woman under circumstances falling under one of the following descriptions:-

(a) without her consent….

(b) with her consent when her consent …obtained by use of force, or….

(c) with her consent when….obtained…when she was of unsound mind….

(d) with her consent when the man knows…he is not her husband…

(e) with or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.

Under S. 363 (e) of the Penal Code a man who has sexual intercourse with a girl under sixteen years of age, with or without her consent, commits the offence of statutory rape, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.’’

Later in the implementation of the law, the law enforcement officers encountered difficulties at times due to the phrase shown in italics above, which was included in the section, due to the provisions in the Muslim Marriage Law and the insistence of Muslim MPs.

S. 364 (2) deals with the penalty for statutory rape.

‘Whoever- (e) commits rape on a woman under eighteen years of age shall be punished with rigorous imprisonment for term not less than ten years and not exceeding twenty years and with fine and shall in addition be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person:

Provided however, that where the offence is committed in respect of a person under 16 years of age, the court may, where the offender is a person under 18 years of age and the intercourse has been with the consent of the person, impose a sentence of imprisonment for a term less than ten years.’

As stated above under the existing law:

a. Only a girl above the age of 16 years can consent to have sex.

b. Any person who has sexual intercourse with a girl under 16 years of age, with or without her consent, commits statutory rape.

c. Any person who commits statutory rape is liable to be punished with a minimum mandatory jail sentence of ten years which can be extended up to twenty years; he is also liable to pay a fine and compensation ordered by court to the victim.

d. However, where the offender is a person under 18 years of age and the intercourse has taken place with the consent of the girl, the court has a discretion to impose a sentence of imprisonment for a term less than ten years.

e. It is an indictable offence with only the High Court having jurisdiction to hear these cases.

By the first proposal in the Cabinet paper the Minister proposes to amend the law on statutory rape bringing about the following changes in the existing law:

a. Under the existing law, only a girl above the age of 16 years can consent to have sex; if the girl is under 16 years of age and the sexual intercourse has taken place with the consent of the girl, the Court may take that fact into consideration at the time of sentencing the offender.

*By this amendment, the age of consent will be brought down from 16 years to 14 years.

*Now any girl who has attained the age of 14 years can consent to sex and the Court is bound to take that into consideration;

b. Under the existing law, at the time of sentencing the Court may take into consideration of the fact that the offender is also a child, a person under 18 years of age.

*By this amendment, this concession has been extended to adults also, to youthful offenders belonging to the age group of 18 – 22 years of age.

c. Under the existing law, all child sexual abusers faced the hazard of going through a High Court trial.

*Under this amendment, these offenders do not face the hazard of going through a High Court trial as the High Court has no jurisdiction to try these offences, only the Magistrate’s Court has jurisdiction.

d. Under the existing law, while statutory rape is an offence punishable with a minimum mandatory jail sentence of ten years, where the offence is committed with the consent of the girl and the offender is a person under 18 years, the Court has the discretion to impose a sentence of imprisonment for a term less than ten years. If the offender is a person over 18 years of age, he has to undergo the minimum mandatory jail sentence.

* Under this amendment, any young person belonging to the age group of 18 – 22 years can have sexual intercourse with any girl who has attained the age of 14 years with her consent without undergoing any sentence of imprisonment.

*The maximum sentence of imprisonment that can be imposed by a Magistrate’s Court under its normal criminal jurisdiction is two years and the maximum sentence of imprisonment that can be suspended is also two years. The court has the discretion to impose a suspended sentence for a period less than two years. It may be even 6 months.

* An offender belonging to the age group of 18 – 22 years can plead guilty to the charge on the first day itself if the Police Report indicates that the sexual intercourse has taken place with the consent of the girl, and he may be able to go home with a suspended sentence without spending a day in prison.

This amendment will certainly result in the promotion of sexual abuse of young girls and bring about dangerous social consequences.

It will be an open licence to pleasure -seeking young adults of moneyed families to get friendly with young girls of school-going age and have sexual intercourse with them.

By the second proposal in the Cabinet paper the Minister proposes to amend S. 363 of Penal Code with the aim of facilitating legal protection for men and boys from sexual violence. In the Minister’s view, rape of boys is a common form of sexual violence, against which there are no effective penalties. One does not know what the Minister means by ‘rape of boys’. Is it anal sex? If it is anal sex or any other kind of act of sexual penetration, there are existing and adequate legal provisions with effective penalties. This proposal clearly shows the Minister’s ignorance of the existing provisions of the law.

The offence of “Grave Sexual Abuse” in S. 365B of the Penal Code deals with the offence of what the Minister calls ‘rape of boys’. “Grave Sexual Abuse” is defined in S. 365B (1) thus:

S. 365B (1) – ‘ Grave sexual abuse is committed by any person who, for sexual gratification, does any act, by the use of his genitals or any other part of his body or any instrument on any orifice or part of the body of any other person, being an act which does not amount to rape under S. 363, in circumstances falling under any of the following descriptions, that is to say- under circumstances falling under one of the following descriptions:-

(a) without the consent of that other person

(b) with consent …obtained by use of force, or…

(c) with consent obtained…when other person was of unsound mind or under intoxication.

(d) with or without the consent of the other person when the other person is under 16 years of age.

S. 365B (2) (b) deals with the penalty for grave sexual abuse committed on persons under 18 years of age.

‘Whoever- (b) commits grave sexual abuse on any person under 18 years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person.’

In S. 364 dealing with penalties for rape, there is a proviso under which the Court can impose a lesser sentence of imprisonment where the offence is committed on a girl under 16 years of age with the consent of the girl for the intercourse by a person under 18 years of age.

There is no similar provision in the penalties for grave sexual abuse. A Court cannot act leniently in dealing with a person under 18 years of age who commits grave sexual abuse on a boy under 16 years of age with that boy’s consent.

It appears that the Minister or his legal advisers are trying to surreptitiously achieve two undisclosed objectives with this proposed amendment. One is lowering the penalties that can be imposed by courts on youthful sexual abusers who sexually abuse boys with their consent as in the case of statutory rape. If it is directly proposed to amend the law enabling courts to deal more leniently with persons who commit acts of grave sexual abuse on boys with their consent, it would have resulted in arousing a hornets’ nest. It is done on the pretext of strengthening the law against sexual abuse of boys. In their view, at present rape of boys is a common form of sexual violence, without effective penalties; by amending S. 363 of Penal Code bringing in men and boys also into the category of victims of rape, legal protection for men and boys can be strengthened against sexual violence.

Instead of strengthening legal protection for men and boys against sexual violence, this amendment will result in opening doors wider for male sexual abuse of male children. Youthful offenders belonging to the age group of 18 – 22 years can have sexual relations with boys under the age of 16 years with their consent obtained through various means without fear of being indicted in the High Court and languishing in jail. They can get away with a suspended sentence from the Magistrate’s Court.

The other objective is to destroy the historical social base of our society through implementing a policy of gender neutrality in all spheres. The main purpose of amending S. 363 of Penal Code is not facilitating legal protection for men and boys from sexual violence, but neutralizing gender in terms of the law of rape. In the Penal Code amendments already brought, S. 25 the Penal Code has been amended by substituting the word ‘spouse’ for the word ‘wife’. There is no need or justification for any of these amendments, other than gradually paving the way for legal reforms allowing same-sex marriages, giving effect to the policies that the previous government failed to bring forward though they much desired, in the guise of making provision for gender neutrality.

Another thing one cannot understand is why the Minister and his legal advisors have not addressed the need to amend the phrase shown below in italics in paragraph (e) of S. 363 of the Penal Code:

S. 363. A man commits rape when he has sexual intercourse with a woman under circumstances falling under one of the following descriptions:

(e) with or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.

This provision allows people belonging to one community to commit sexual abuse of children by marrying girls of 12 years of age and having sexual intercourse with them in total violation of their rights as children. This goes against the proclaimed policy of the government of ‘one country, one law’.