SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Section 364A of Sri Lanka’s Penal Code criminalises having or attempting to have “carnal
intercourse” (“defilement”) with a female between the ages of 12 and 14 years of age which
is punishable with a jail term up to 2 years. This is in stark contrast to the offence of rape
where punishment can be up to 20 years. If the accused can demonstrate that he or she had
“reasonable cause to believe” that the female was above 14 years of age, the law recognises
this as a sufficient defence. Further, an exception is made if a male has sexual intercourse
with his wife or a female he lives with as his wife if the female is above 12 years of age and
he has obtained the consent of her parents or guardian. 492
In order to address issues of cyberspace abuse, the Penal Code requires a person who
provides any service by means of a computer to take necessary steps to ensure that such a
facility is not used for the commission of an offence relating to the sexual abuse of a child.
Such a person, who has knowledge of the facility being used for the commission of the
offence, is obligated to inform the police and provide information that he may know of about
the identity of the alleged offender. Not fulfilling this obligation attracts imprisonment up to
two years. 493 Further, the code imposes a duty on a person who is aware that premises are
being used for abusing a child to report the same to the police or face imprisonment up to two
years. 494 It also punishes sexual exploitation as discussed below.
Sri Lanka’s International Covenant on Civil and Political Rights Act, 2007, has been
legislated “to give effect to certain Articles in the International Covenant on Civil and
Political Rights relating to human rights which have not been given recognition through
legislative measures”. It includes a guarantee that every child has the right, inter alia, to “be
protected from maltreatment, neglect, abuse or degradation” and be given legal assistance by
the State at its expense in criminal proceedings affecting the child, if lack of such
representation would result in substantial injustice. 495 This law provides an efficacious
remedy directly before the High Court in cases where there has been an alleged or imminent
infringement of a human right stipulated in the Act, due to executive or administrative
action. 496
Sri Lanka also has a National Child Protection Authority Act, 1998 aimed at formulating a
national policy to prevent child abuse, protect and treat children subject to such abuse and to
coordinate and monitor action against child abuse. The Authority has members representing,
inter alia, the mental health profession, physicians, police, and civil society representatives
from the fields of education, law and child welfare. 497 The Authority is vested with several
functions, including a policy-making role (formulating policy, recommending law reform,
creating awareness, monitoring implementation of laws and investigation of cases etc.)
However, it is also vested with enforcement functions, which include taking measures to
secure protection of children who are involved in criminal investigations, to receive
complaints of child abuse and refer them to the appropriate authority, maintain a national data
base of child abuse cases 498 and empowering officers to enter, inspect and seek information
from premises where child abuse or illegal adoptions, are suspected to be occurring and seize
492 Section 364A, Penal Code, 1883 (Sri Lanka)
493 Section 286B, ibid.
494 Section 286C, ibid.
495 Section 5, International Covenant on Civil and Political Rights Act, 2007 (Sri Lanka)
496 Section 7, ibid.
497 Section 3, National Child Protection Authority Act, 1998 (Sri Lanka)
498 Section 14, ibid.
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