November 19, 2023 Bridge Team
Globally, the pursuit of gender equality and justice is premised on combatting sexual violence. This scourge is very often posited from the perspective of guaranteeing effective protection against it to women and girls. In this context, sexual violence against men, boys, transgender and non-binary persons has often been overlooked.
Sri Lanka is no exception to this. Despite the growing global awareness of sexual abuse against men, boys, transgender, and non-binary persons, the country’s legal system has yet to adequately address their plight, leaving survivors without the protection and justice they deserve, and to which they are entitled, including under Sri Lanka’s international human rights law obligations.
It is no surprise then that, as Sri Lanka continues to abide by its deep-rooted cultural norms, the rape of men, boys, transgender, and non-binary persons in the country remains mostly hidden.
While all forms of sexual violence are considerably under-reported, including against women and girls – who, by and large, constitute the majority of the victims/survivors of this scourge – harmful gender stereotypes and discrimination operate in such a way as to foster a hostile environment that impedes the reporting of instances of sexual violence perpetrated against men, boys, transgender and non-binary persons.
A vicious cycle
Traditional gender norms and harmful gender stereotypes in Sri Lanka perpetuate the idea that men should be strong and invulnerable, and that, as such, it is almost inconceivable they may be victims of sexual violence. Consequently, male survivors of sexual violence often fear being perceived as weak or even emasculated if they admit to having experienced any form of sexual assault.
Under-reporting on the part of the victims/survivors of sexual violence further perpetuates the misconception that male rape, in particular, is extremely rare, hindering the urgency of legislative change.
Such under-reporting is however at odds with anecdotal reports of rape of men as part of the violence perpetrated in the aftermath of the armed conflict between the Sri Lankan authorities and the LTTE and of rape against transgender and non-binary persons. Research indicates that an overwhelming majority of rapists of men and boys are other men.
Lack of reporting of rape and of other forms of sexual assault against transgender and non-binary persons reportedly exists due to fear of stigma and homophobia and the application of criminal laws that proscribe consensual same-sex sexual conduct. This ‘engineered’ silence creates a vicious cycle that enables perpetrators to evade justice and leaves survivors of sexual violence in the shadows.
The offence of rape
This opinion piece wishes to focus on the offence of rape due to the distinction that is drawn in the Penal Code of Sri Lanka between the offences of ‘rape’ and ‘grave sexual abuse’, the latter seemingly proscribing all other acts of sexual violence.
Section 363 of the Penal Code of 1883, as amended in 1995, criminalises rape and defines it as non-consensual sexual intercourse committed by a man against a woman.
Under Section 364, the sanction for those convicted of rape is a sentence of imprisonment ranging from seven to 20 years, with a fine and an order to pay compensation for injuries, including psychological or mental trauma, caused to the victim. The definition of rape in Section 363, by limiting itself to rape by a man of a woman, fails to criminalise the rape of men and boys, of transgender persons, and of those who identify as non-binary.
The common understanding was that Section 365B of the Penal Code (Grave Sexual Abuse) introduced in 1995 would apply in situations of male rape or other incidents that did not fall within the definition of rape under Section 363.
Section 365B is gender neutral and inclusive applying when a person for sexual gratification commits an offence “by the use of his genitals or any other part of the human 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 section 363” and where consent is not given or may be ‘presumed’ to be not given due to threats, intimidation, or because of the victim is “of unsound mind” or intoxicated.
While the initial punishment provided for grave sexual abuse was identical to that for rape, this was changed in 2006, with the minimum imprisonment period being reduced to five years (and seven years if the victim is below the age of 18). However, this means that, whenever non-consensual acts of non-heterosexual rape are prosecuted as “grave sexual abuse” and those found guilty are given a reduced sentence of imprisonment, the substantial harm the offence causes is mischaracterised and considered less severe than that characterising an offence of rape under section 363.
Limiting rape as non-consensual penile penetration by a man against a woman may be a result of the above-mentioned harmful gender-stereotypes sublimating women as more vulnerable than men and requiring a higher degree of protection from the law; it may also rest on the assumption that men, boys, transgender, and non-binary individuals do not experience sexual violence in the same way as women do; it may also relate to the widespread belief that sexual violence against men and boys rarely happen due to under-reporting.
Global situation
Many States have reconceptualised their criminal law on rape to make it more inclusive by broadening its scope.
In 2021, Pakistan amended the criminalisation of rape law to make it not entirely dependent on penile penetration and, instead, provided that the offence of rape may include any non-consensual sexual act done by any part of the body including the mouth or any object against the vagina, anus, or urethra of another person or where a person manipulates the other person into performing any of these acts against them or a third person. This is a very broad definition.
Sri Lanka is a party to all core international human rights treaties. The right to non-discrimination, the right to equality and equal protection of the law, the right to be free from torture and other cruel, inhuman or degrading treatment or punishment, and the right to an effective remedy against human rights violations are protected under the International Covenant on Civil and Political Rights (ICCPR).
The Human Rights Committee in 2017 requested Swaziland to criminalise the rape of men and to repeal the crime of sodomy. The committee had previously requested Japan to broaden its definition of rape to include rape of men due to the seriousness of the offence.
In its General Comment No.2 the Committee against Torture has recognised that men along with women are subject to gendered violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, such as rape or other forms of sexual violence and abuse, and that such violations may happen on the basis of people’s actual or perceived non-conformity with socially-determined gender roles. The Committee further noted that States would be responsible for acts of private actors if they fail to exercise due diligence to prevent, stop or sanction them, or to provide reparations to victims.
In light of the above, a discriminatory legislative framework that does not provide for equal protection of the law in the criminalisation of the act of rape is inconsistent with Sri Lanka’s due diligence obligations.
Model rape law
In 2021, while acknowledging that rape predominantly affects women and girls, the United Nations Special Rapporteur on violence against women, its causes, and consequences, published a model rape law which sought to be more gender inclusive on the basis of non-discrimination due to harmful stereotypes about rape.
She underscored that “criminal provisions on rape should cover and protect all persons, without any discrimination, including men, boys and gender diverse persons”. The model rape law is gender inclusive with regard to both victim and perpetrator.
Addressing the inadequacy of legal protection against the rape of men, boys, transgender, and non-binary individuals in Sri Lanka requires legislative reform and policy changes. This includes revising the current definition of rape to address all forms of non-consensual sexual acts, regardless of the gender of the victim or the perpetrator.
Amending the existing law to incorporate gender inclusive definitions of rape and providing for an inclusive and intersectional approach in its implementation will go a long way in rectifying the current disparity. Additionally, specialised training for law enforcement, legal professionals, and healthcare providers is essential to ensure they handle such rape cases with sensitivity and competence.
Further, access to support systems including helplines and counseling should be made available to survivors of rape, regardless of their gender. This would go some way towards achieving greater gender equality and fulfilment of Sri Lanka’s international human rights law obligations in this regard.
(The writer is National Legal Advisor – Sri Lanka at the International Commission of Jurists)