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Seated on a bench in the far end of one of the busy hospital corridors, Kasuni* seems to be eagerly awaiting someone’s arrival as she nurses her two-week old infant. To a bystander it would have seemed as if the infant was wiggling in the warmth of her older sister, if not for the baby-blue maternity jacket and floral-patterned cloth Kasuni was wearing.
“The baby’s father is late today, wonder why…,” this 15 year-old mother tells me as she cocks her head through the crowd to get a better view. Her baby’s father – a 21 year-old who currently works two jobs to support his family, is supposed to bring her lunch during the afternoon visiting hours.
Kasuni had eloped with him at the age of 14.
“My relatives and even the doctors and nurses ask me why I put myself in a situation that led me to hold a baby instead of books and dolls. . . It was because I had no choice,” she tells me, as she explains the series of events that led to her plight today.
Having brought up by her maternal aunt since she was just three months, Kasuni had never known her parents’ warmth except for the occasional visits by her father – an army soldier and a few random visits by her mother, who had migrated for work. “When my parents separated, they had handed over my guardianship to my aunt. When I was 13 my aunt offered accommodation to a 32 year-old man who they claimed was their family friend. Few months after his arrival he started making sexual advances towards me and subsequently, my aunt said I should consider marrying him. . .”
When she refused, her aunt had contacted her mother to reason with Kasuni to agree to the proposal. “I refused to agree because he seemed like a pervert. But my continuous rejections did not discourage either my aunt or that man . . . When their nagging became unbearable I confided in my baby’s father who was my neighbour at the time. He suggested we elope; since it seemed like the only escape and I agreed. . .”
In fear of being discovered by the Police, they had hidden at a friend’s house located out of Colombo. “We heard that my aunt had lodged a missing-persons complaint with the Police. So we feared of being discovered and handed over to the Police. We started living together. . . I was well aware that I was not in love with him. But it was better than being forced into a marriage with an old man. However, the seriousness of my actions did not occur to me until I found out I had conceived,” Kasuni confesses.
The couple had then moved to his ancestral home. “I wanted to tell my mother about how scared I was, but since the day I refused to agree to my aunt’s proposal, she ignored to answer my calls. I phoned my father and informed him. He blamed me for not informing him earlier but what could he have done? After all, I saw him only once a year, maybe two/ three times if I was lucky. . .” she says as tears welled un in her big eyes.
“I don’t regret having this baby but at the same time I will not admit that I don’t regret being disrupted of my education and my dreams. . .” she says, as she wipes away her tears that had fallen on the little pink cheeks of her daughter, fast asleep in her arms.
Kasuni says now her life’s biggest priority is to get married and legalize her relationship with her daughter’s father. “My biggest fear is being turned over to the Police, particularly since my aunt has already made a complaint with the Police claiming I am missing. I realize that in my situation, all it takes for this family to break apart is just one complaint . . . I fear for the future of my child because I don’t want this baby to go through the same trauma of losing her parents and harassments as I wet through,” says this young mother heaving a sigh while adding, “I just wish there was a way for us to marry without having to wait until I reach the marriageable age. . .”
Kasuni has little choice but to wait since the Marriages (General) Ordinance law dictates both parties (unless they are Muslims) should complete 18 years in order to register a their marriage. Her story also involves many other legal implications if perceived strictly on legal terms as her partner could be charged not only with statutory rape but also kidnapping, as she was below 14 years when she eloped. In cases such as Kasuni’s that involves young couples is it fair for the law to be strictly applied and the family allowed to be broken apart? Or would making exceptions for such couples to enter a marriage recognized by law or the imposition of lenient punishments, open floodgates to a plethora of other social issues that would be detrimental for the wellbeing of young girls?
‘Objectivity of existing statutory rape laws, lost’ – legal practitioner
President’s Counsel and criminal law expert, Prasanthalal de Alwis expressing his views to Daily Mirror on existing statutory rape laws said he believes they are economically and ethnically unequal and neither is its objectivity met.
“The objective of imposing a marriageable age and strengthening statutory rape laws was to prevent young girls being preyed upon by elderly men. However, in the process the lawmakers had not anticipated scenarios that involve a younger couple who have been in a relationship,” he explained.
“I can say with certainty that cases of statutory rape involving upper-middle class/affluent families are almost unheard of. That does not mean it doesn’t occur in such layers of the society – just that they resort to methods outside the legal system to reach a solution. The inconvenient truth is such settlements not only lead to the non-implementation of the statutory rape law among higher strata of the society but also leads to an increase in illegal activities such as abortions to be carried out without any age restriction whatsoever,” he said.
Speaking of other harmful impacts on youth due to the law being implemented without consideration of the circumstances, he pointed out young boys who are sentenced often get involved with crime rackets due to being exposed to hardcore criminals while being detained in remand prison. “As for the girls, most do not wish to return to their parents in fear of the stigma and being reprimanded. As a result, they are put in homes or detention centers where there is no counseling and little efforts are made to reintegrate them into the society. Hence, in such cases the objectivity of the law is not met.”
Commenting further he said, “The law is also ethnically unequal because the marriageable age referred in the General Marriage Ordinance applies only to non-Muslims. Therefore, statutory rape law has also violated constitutional provisions which dictate that one cannot be discriminated on the basis of their ethnicity.”
However based on a Supreme Court ruling which stated that ‘the High Court is not inhibited from imposing a sentence that it deems appropriate in the exercise of its judicial discretion notwithstanding the minimum mandatory sentence’ the Anuradhapura High Court sought an interpretation on the mandatory minimum sentence under the 1995 Amendment to the Penal Code with reference to a case of statutory rape. Subsequently, many other High Courts followed suit with concern to similar cases and a certain fraction of legal practitioners claim it has led to lenient punishments.
“If the circumstances of the couple are considered, imposing a minimum mandatory sentence would serve in their best interests. Even so, it is still not legally binding since it was not passed as a law in the parliament, but is only an interpretation of a SC ruling. Therefore, it is vital that amendments are made to the present statutory rape laws in order to permit young couples to enter a legal marriage, at least in cases where their parents have consented and the sexual relations were consensual,” he added.
‘Exceptions will make little
difference to the welfare of the youth’ – Sociologist
However, Senior Lecturer at the Open University Social Sciences Department holds a different view as she states making exceptions would make little difference with concern to the welfare of the youth.
“In statutory rape cases it is the girls who most suffer the social consequences. She is treated as a bad or ‘loose’ character and in most cases; the girl is forced to turn the relationship into a permanent arrangement solely to appear respectable to the society. Decisions on sexuality/marriage are tough a choice even for adults to make . . . It is also why it has become quite tough to determine the level of consent granted by the victimized girls,” she said.
Dr. Amarasuriya also adds that by making exceptions in cases involving younger men, it could also send out the wrong message to the society. “Even older men have gotten away with statutory rape as a result of being lenient on the punishment. Proving rape itself is quite tough in Sri Lanka and making exceptions would only provide further leeway for perpetrators to escape scot-free.”
Speaking further she said, “There is plenty of evidence globally to safely determine that early marriage leads to negative consequences, particularly for young women. Even with concern to the study we carried out locally involving some 81 cases of teenage marriages/cohabiting, none of the girls were better off – they were poverty-stricken, education disrupted and some were even subjected to domestic violence. Therefore, what is required is a development in child protection services as well as ensure that the lives of youth involved are not disrupted.”
*Name has been changed to protect identity
The law should not be changed to allow exceptionsNational Child Protection Authority (NCPA) Chairman, Anoma Dissnayake speaking to Daily Mirror said she will not advocate any changes to the existing statutory rape laws to make exceptions to any cases, irrelevant of the circumstances of the couple involved. “If we allow young girls and boys to take sexual activity and sexuality so lightly by allowing such couples to marry through making an exception, so many other social issues would arise. They would not be aware of how to lead a marriage life, which would in turn lead to severe complications in their lives and that would only be the tip of the iceberg,” she said adding, “Changing laws is not the answer to young couples who put themselves in such situations. What should instead be done is to aspire for much more in life, create attitude changes in the minds of the youth as well as the society.” |