Source: Daily News
A tussle between judicial discretion and mandatory sentencing has given rise to inconsistency in sentencing on cases heard in country’s judicial system. The gravity of the issue is further heightened when examining sentences given on sexual offenses, prompting different rights organisations to even file fundamental rights applications on the issue. However, remedies are slow to come, rights activists complain.
Mandatory sentencing
Responding to demands of women’s organisations to impose stringent laws to deal with increasing number of incidents of sexual crimes, in 1995 an Amendment was made to the Penal Code provisions with regard to violence against women, to enhance the punishment outlining mandatory punishment. The changes also amended the definition of rape. The punishment outlined for rape was a minimum of seven years and a maximum of 20 years imprisonment. The provision was made for the imposition of a mandatory minimum sentence for rape preventing the imposition of suspended sentences, which has been a regular occurrence, according to a number of reports produced on the subject.
The report titled “Report of The Leader of the Opposition’s Commission on the Prevention of Violence Against Women and the Girl Child” highlights that before this Amendment the law merely provided that a judge had the power to give a maximum of 20 years imprisonment.
According to the report published in 2013 with the endorsement of then Speaker of the Parliament Chamal Rajapaksa, “often men found guilty of rape, received sentences of only about two years imprisonment and even this was often suspended”.
Following this stricter sentencing was issued by law enforcement authorities, reports another study on suspended sentences for sexual offenders titled “Justice Suspended” published by Lawyers for Human Rights Development (LHRD). However, the positive changes brought about by the Amendments were short lived.
“We were elated when the regulation first came, but later we realised the full impact,” said Professor Harendra De Silva, a child rights activist and a former Chairman of the National Child Protection Authority.
Anuradhapura Case
In 2008, Anuradhapura High Court judge declined to impose the minimum punishment on a case where a girl under 16 years eloped with a man and had sexual relations with him. According to report by the LHRAD, states that the High Court Judge felt that it was unjust to impose the mandatory jail sentence on the accused in vie of consensual circumstance of the case. The Supreme Court, in case reference no 03/2008, also held that a High Court is not inhibited from imposing a sentence that it deems appropriate in the exercise of its judicial discretion.
Speaking of the matter, former AG Palitha Fernando highlighted that judicial discretion should be maintained in dealing with cases of this nature. Mandatory sentencing sometimes failed to take into account ground realities and cultural norms in certain parts of the country, he said explaining that in cases such as the Anuradahapura one, where judicial discretion is important in dealing with particulars of the case.
“In one case that was reported to me, Police was about to arrest a man who brought his underage partner to the hospital to give birth to their child. The hospital authorities called me in an attempt to prevent the arrest as it would have affected both the mother and the unborn child, had he been arrested at that point. I directly intervened to prevent the arrest. We have to look at the culture of the area before we impose stringent measures outlined,” he said.
In the North Central Province and Central Province, there are higher number of girls below the age of 18 living with men, as husband and wife, these are customary marriages, Fernando explained.
“It is the culture in those parts. If we impose the stringent laws outlined, it is a grave injustice.”
The report by LHRD too reports that out of sexual violence cases concluded from 2009 and 2010, suspended sentences were given in sexual offence cases where the underaged girl was in a relationship with the offender.
However, many rights activists believe that the ruling gave many others undue advantage to issue lenient sentencing on sexual abuse cases. The LHRD report highlights a large number of cases in which suspended sentences with or without nominal compensation was awarded in cases of sexual offences. According to the study, matters taken into consideration by the Court before sentencing the accused include, pleading guilty without going to trial, voluntary payment of compensation, no previous compensation, accused regretting the incident, decision in Supreme Court reference no 03/2008, accused being a married man with children/disabled child, and victim-survivors consented for sexual intercourse although she is under 16 years.
Such reasoning has come under attack by many rights activists, claiming that it disregards the gravity of the offence committed.
“There has been a large number of cases where grave sexual abuse cases have been given suspended sentences. Often they twist facts of the case and highlight that the accused is a father or the only breadwinner, with complete disregard to the gravity of the offence,” explains Dr. Sepali Kottegoda, a women’s rights activist and Director of Women and Media Collective.
Such sentencing and reasoning have multiple negative effects on society, explained Prof. De Silva. The effectiveness of the laws to prevent such abuses diminishes as offenders are able to get away without punishments.
“Perpetrators will not be worried about committing such crimes. Further, victims become reluctant to come forward, as there is no proper punishment pronounced on the crimes committed. We already have a culture where there is a social stigma attached to these issues and if there is no justice to the victims, then the reporting reduces further,” he said.
De Silva highlighted that the laws should prevent crimes from being committed and reduce the crime rates, but allowing such disparities in sentencing will not contribute to reducing the crime rate. The report by LHRD records that out of the 129 concluded sexual violence cases, from 2009 and 2010, in 114 of the cases suspended sentences were pronounced for rape including statutory rape with no mitigating circumstances.
Further the accused on occasions been ordered to pay nominal compensation of amounts ranging from as Rs. 15,000 to Rs. 200,000 some times with the option of paying this compensation in installments. The report also highlighted that following no 03/2008 judgment, in a number of cases the perpetrators have adopted that habit of offering the families of victim-survivors money and there after informing the court that they agreed to settle the case.
Petition to Supreme Court
Armed with this evidence, the LHRD filed a fundamental rights petition in the Supreme Court in July 2011 “for and on behalf of other citizens of the country, especially women and children who are likely to adversely affected by the current trend of giving suspended sentences in cases of sexual violence of women and children without mitigating circumstances.” The application was later withdrawn.
“It was dismissed by then Chief Justice Shirani Bandaranayake stating there would be a sentencing policy which would be done by the end of 2012,” Kalyananda Thiranagama, Executive Director of LHRD said.
However, he was critical of the women’s rights groups stating that none of the groups supported his application although he filed the application on behalf of women. Prof. Savitri Goonasekere, too highlighted apathetic attitude of the public in addressing the issue despite their best efforts to bring about a change.
A Sentencing Policy Guideline
The Justice Ministry has this year appointed a committee to examine the disparities in sentencing in the judiciary system in the country. Headed by Fernando, the committee is to conduct a survey to understand the issue, and develop a comprehensive sentencing policy to be followed in sentencing.
“The committee is right now in the process of collecting information for the survey. They will collect data from all court houses, analyse it and develop the guideline,” Fernando said. He said that the guideline will address the issue of suspended sentences and other inconsistencies in sentencing which is evident in pronouncing punishments in sexual offence cases.
“This will be able to uphold judicial discretion while also providing uniform policy to address the situation,” he explained.
Pictures courtesy: Women and Media Collective