Are the provisions of contemporary criminal law in Sri Lanka enough to prevent the sexual offenses? A simple discussion about the provisions of Sri Lankan Penal Code on sexual offenses.

1. Are the provisions of contemporary criminal
law in Sri Lanka enough to prevent the sexual
offences ?

2. Offences against the women which are mentioned in
Sri Lankan penal law
Rape
Sec;363 of penal code
Incest
sec; 364(a) of penal code
Grave sexual abuse
Sec; 365(b) of penal code
Sexual harassment.
Sec ; 345 of penal code
Trafficking
Sec; 360 (a) of penal code.

3. Rape
What is rape?
• Rape is forced, unwelcome sexual intercourse.
• It could be happened against to a girl or a
woman.
• It is a most grave and inhuman act what could
be done against women and girls.
• gravity of rape is only less than murder.
• Rape could be caused to serious physical,
psychological, emotional and economic results
to the victims.

4. Actus reus of rape.
Sec; 363 of penal code,
Explanation (i) - Penetration is sufficient to
constitute the sexual intercourse necessary to the
offence of rape.
Mens Rea of rape.
not necessary about the accused intention.
rape is an offence when it take place without
consent of the victims.
(there is an exception)

5. How is the contemporary criminal law
function about the offence of rape
Nowadays the criminal law about the sexual
offences is more stronger than the past.
After the 1995 No 22nd amendment to the penal
code the some unfilled areas of the law has been
filled.
therefore this amendment is the most effective
enactment relating to sexual offences.
but still there are some gray areas in the penal
law must be amended.

6. Sec;363 after 1995
A man who can commit a rape according to any of the following
descriptions
• a)without victims consent even where such woman is his wife and she is
judicially separated from the man;
• (b)with victims consent, while she was in lawful or unlawful detention or
when her consent has been obtained, by use of force or intimidation, or by
threat of detention or by putting her in fear of death or hurt;
• (c)with victims consent when her consent has been obtained at a time
when she was of unsound mind or was in a state of intoxication induced by
alcohol or drugs, administered to her by the man or by some other person;
• (d) with victims consent when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man
to whom she is, or believed herself to be, lawfully married;
• (e) with or without victims 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.

7. Before & After the 1995 No 22 Amendment
Before the Amendment After the Amendment
There is no any provision about the
matrimonial rape.
Sub sec; (a) mention that without victims
consent even where such woman is his wife
and she is judicially separated from the man
there can be a rape.
with or without victims consent when she
is under 12 years of age
with or without victims 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.
“Without or against the victims consent” There is define The consent must be the
independent & voluntarily.
No any provisions about ; “Statutory rape”
“Custodial Rape” , “Gang rape” , “rape a
pregnant woman” , “rape a woman u18 years
old” or “rape a woman mentally or physically
disabled”
Sec; 364 (2) a, b & c - refers the Custodial Rape
Sec; 364 (2) d – refer the rape a pregnant
woman
Sec; 363 (e)- refer statutory rape
Sec; 364 (2) e - rape a woman u18 years old
Sec; 364 (2) f - rape a woman mentally or
physically disabled
Sec; 364 (2) g – refer the gang rape

8. What are the Custodial & statutory Rape
statutory Rape
• According to Section 363 (e) of the Penal Code as amended by Act, No. 22
of 1995, in cases where the girl is below the age of 16, sexual intercourse
with consent also constitutes rape.
Inoka gallage v Kamal Addaraarachchi [2002]1SLR 307
• But In the case of Muslims, the law on statutory rape is not applicable to a person
legally married under the age of 16 years who engages in sexual intercourse with her
husband. Because under the Muslim law the girls above year 12 can marry.
Muhamadu lebe vs Muhamadu thamby (1901)
Custodial Rape
• According to Section 364 (2) (a) of the Penal Code as amended by Act, No.
22 of 1995, custodial rape can occur under the following instances:
• Where a public officer or a person in a position of authority ‘takes
advantage of his official position’ and commits rape.
• Where a person on the management of a custodial home, or women’s or
children’s institution, or hospital, ‘takes advantage of his position’ and
commits rape.

9. What are the areas of the Sri Lankan penal law must be develop to
protect the victims in sexual offences.
There are so many provisions has been introduced by the 1995 & 1998 amendments for
the penal code. however there are still some unfilled sides in this area.
a. There is still no any provision to protect the woman from the matrimonial
rape.(sec;363(a) only regard of the time in judicial separation)
b. As member of the convention on the rights of the child – 1989
Sri Lanka also accept that a ‘child mean the human being below age 18’.but
in Sri Lankan penal law the statutory rape is not applicable to a person
legally married under the age of 16 years who engages in sexual
intercourse with her husband.
c. According to the Sec;364 (e) there can be a rape against a girl bellow 18.
but with the girls consent after age 16 it can’t be a rape. Then. there is a
age gap between these two concepts.
d. If any person below 18 recognize as child, then how a girl between age 16
and 18 can give her own independent and voluntary consent for a man?
e. New sentencing policy should be introduced. & Some difficulties in getting
a conviction must be solved.