On Consent – Romeo and Juliet and the Draft Bill
Photo courtesy of Newscutter
What is consent? When it comes to sexual relations, the concept of consent is that it must be between two consenting adults. In the case of legality, the age of consent for girls in Sri Lanka is 16 years. This is a general global standard with countries such asJapan, Malaysia and Pakistan following the same. India and Nepal, however, currently have the legal age stipulated at 18 years for sexual relations.
On February 9, the government gazetted a Bill to amend Sections 363 and 364 of the Penal Code (Chapter 19) which deals with statutory rape. These sections deal with the age of consent for girls, stipulating it at 16 and stating that engaging in sexual intercourse with a girl below that age amounts to statutory rape. The Bill sought to amend many aspects but in particular that the age of consent of the girl be lowered to 14 years and the offender’s age be increased to 22 years.
The age of consent is determined by taking into account many factors. These include the psychological age of the person, their agency with regard to their bodies and the fact that at 16 they have the right to medical care independent of parental supervision and custody choices. It is seen in sociological terms as a middle age range where a child is moving from adolescence to adulthood. The reason for this age – 16 years being the age of consent – is not about adolescent sex and Romeo-Juliet scenarios. Yes, in contemporary Sri Lanka adolescents are having sex and they are not technically complying with the decree that they wait to attain the stipulated legal age. One can argue for bodily autonomy of teenagers and their right to choose. However, in a country such asSri Lanka where sex education is demonised, where child abuse rates are high, where abortion is illegal and where rape conviction rates are low, having the age of consent reduced to 14 years for the girl, opens a Pandora’s Box of opportunities for pedophiles, rapists and abusers to prey upon vulnerable young people.
Sri Lanka’s rape conviction rate is currently less than 10%. In a country where the judicial systems are slow moving, there are many incidents where the perpetrator is married off to the abused in a bid to overcome social stigma and in order to expediently close the case so that the people can get on with their lives. It’s this failure of the system to protect children and execute the due judicial process that has led to this situation.
Prof. Savitri Goonesekere in her interview with News First states: “Because of poor law enforcement there is impunity. And that impunity and the failure to convict – the legal processes and the fact that they take so long – means that you legitimise sex with children. When you legitimise sex with children, there is non-prosecution…and you have this statistical picture of rampant abuse which is really bad.” She says, “What you should be doing in terms of policy formulation is strengthening the legal system and implementation process not to have impunity.”
Failures in the system have led to many aspects of our society being impacted. This is evident in the manner this Bill has been brought forward with no consultation with the National Child Protection Authority (NCPA) and other key stakeholders who need to have a say in policy formulation when it comes to children.
The Penal Code has many aspects that need to be amended to meet the needs of present day society. However, the arbitrary formulation of bills such as this raise alarming questions on how exactly these bills are being formulated, for what reasons and with what agendas.
The age of the perpetrator, for example, as stipulated in this Bill to be 22 years is highly questionable. Legally, an adult is 18 years. At 18 they are treated as adults in the eyes of the law. However, this Bill sought to give them leniency when dealing with a case of statutory rape as the girl has “consented” to intimate sexual relations with the person who can be up to the age of 22. Why this number? What is the logical reasoning behind it? And why treat an adult male as a minor?
This amendment as it was initially formulated legitimised abuse of children without a clear reason for why they would do so.
Sex education in Sri Lanka
We are a nation that has demonised sex education for children for years. Despite global studies that show that sex education empowers children and youth to be safe (https://www.unesco.org/en/health-education/cse) even in young love scenarios of a Romeo and Juliet kind where underage children engage in sex, Sri Lanka continues to offer a defensive excuse that traditional cultural values are being adversely impacted by sex education. As a society, the prudish Victorian attitude to sex is alarmingly out of date.
Most Sri Lankans seem to labour under a delusion that “we have for years been like this, and therefore it is our culture”. Firstly, a culture is not static – it evolves. Secondly, as a means of safeguarding children from the rampant abuse prevalent, it is imperative that we fill the existing knowledge gaps with information which is in alignment with the needs and thinking of today to ensure that we provide adequate sexual knowledge information to children for their own welfare and protection. This is what needs to be amended and updated: the knowledge information provided to our youth.
With the advent of social media, children are more vulnerable than before. Online abuse and grooming are rampant as children’s ignorance leaves them vulnerable to having their trust abused. Many urban children have been subjected to the nudes mafia where they have been blackmailed, abused and preyed on with the threat of their nude images being sent to their family members as a form of revenge and coercion. Hans Billimoria and his team have conducted numerous educational programmes for schools on this issue and the work they have done to raise awareness has identified that there is a great need Sri Lanka should address to provide comprehensive informative sex education for our children.
When the government tried to introduce the Hathey Apey Potha on sex education for children, the religious community objected, saying it was unsuitable. Topics such as masturbation, which are in many cultures seen as a normal human phenomenon, are demonised in Sri Lanka and this repression of instincts has led to further increase in sexual deviancy as well as the “pervert phenomena” experienced by many users of public transport. Learning how to handle one’s sexual feelings, especially during puberty, is key for a child’s well being and development.
The shame and ignorance felt in Sri Lanka by many young people regarding their own bodies and the lack of understanding of the way natural body cycles and emotions are connected contribute to the obstruction of real progress in the arena of child development and awareness of children’s rights and dignity.
Lowering of the age of consent against the backdrop of unenlightenment and repression in this area would lead to many societal problems which would increase the suffering of the country’s already stressed social and familial systems. Many communities in Sri Lanka realised when this Bill was proposed that it should not be made into law. The protests and dissent were recognised and at this stage the Bill has not been voted into law. But the very fact that it was even proposed is disturbing and shows the vulnerability of children in Sri Lanka.
At 14, a girl is still a child. To lower the age of consent to that age is to rob children of their childhood and erode the rights to safety and protection that children are entitled to have in childhood according to the United Nations international guidelines on the Rights Of Children.
Much is said and often repeated in traditional culture on the subject that children are the wealth of a nation, its legacy and its future. Yet in practice the proposal of this Bill indicates that irresponsible and disrespectful attitudes to children are being held and put forward as actionable.
What 14 year old girl in reality is likely to be empowered by such legislation? Given the long standing conservatism of most families and communities, it is most likely to be girls from very low income families who engage in sex work for survival, to earn a living. Is this Bill as proposed empowering girls or commodifying them? In operation, it would pave the way for legalisation of businesses utilising underage sex workers.
Furthermore, it would monetise the exploitation of underage girls, to render Sri Lanka a more desirable location for sex tourism as India, for example, has far stricter laws in this sphere. In the overriding quest for the tourist dollar, the children would be unprotected and offered up as desirable assets in a capitalist economy. Predatory adults currently engaging in illegal sexual activity with underage children would be able to escape free of criminal charges if the age of consent is lowered.
It would be relatively easy, with an entirely commercial and transactional mindset, to then speak of children’s rights to make decisions about their own bodies, and de-stigmatise their choice to engage in sex work. Feminist and human rights discourse and its terminology could even be used like doublespeak to conceal the gross and unconscionable aspects of such self serving profiteering from selling our children and rationalising the loss of their innocence before they even have full comprehension of their needs or their rights as human beings.
