No Justice for Sri Lankan Male Survivors

[Charu Lata Hogg is the Director of the All Survivors Project at the UCLA School of Law and an Associate Fellow, Asia Program, Chatham House. This post is based on primary research conducted by Mirak Raheem, Deanne Uyangoda and Marisa De’Silva in Sri Lanka.]

Eight years since Sri Lanka’s nearly three-decade conflict came to a brutal end following the defeat of the Liberation Tigers of Tamil Eelam, the country is still coming to grips with the legacy of massive human rights violations committed by all sides. Egregious abuses by state security forces and armed groups also took place during other insurgencies in Sri Lanka, specifically during the armed insurrections in the south by the Marxist Janatha Vimukthi Peramuna (JVP) first in 1971 and then 1987-1989. However, sexual violence against men and boys, particularly in the context of detention under a previous infamous security legislation, has only recently begun to be recognised as among the numerous abuses that have taken place within the context of the armed conflict. A proposed Counter Terrorism Act (CTA) which is awaiting Parliamentary approval threatens to continue prolonged detention without charge. If approved this counter-terrorism bill could continue to facilitate human rights abuses in detention.

A 2015 report resulting from UN investigations concluded that men were as likely to be victims of sexual violence as women within the context of detention (The investigations were mandated by the Human Rights Council (Resolution 25/1) to investigate allegations of violations of international law following the breakdown of the 2002 Ceasefire Agreement to the end of the conflict. See, Report of the Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL)), but the issue remains largely hidden and stigmatized. At the core of this silence is the lack of legal protection for men and boys against sexual violence which informs social attitudes and contributes to an environment in which violations can take place with virtual impunity. In addition to law reform, a fundamental gap in knowledge and expertise on preventing, investigating and responding to sexual violence constitutes a significant barrier. Training of all relevant government, official and professional stakeholders including members of law enforcement and security forces, the judiciary, national human rights institutions, medical and mental health professionals and humanitarian workers could provide a crucial first step.

In numerous cases of sexual violence against men and boys documented by the UN and other international organisations, victims were detained under the 1979 Prevention of Terrorism Act (PTA) which has been widely used to detain LTTE suspects and under which many fundamental rights and guarantees to protect detainees are suspended. There have been repeated calls for its repeal and the new government which came into power in 2015 has promised to do so. Yet, the PTA remains on the statute books and continues to be applied, permitting the administrative detention for up to 18 months with only limited judicial supervision, irregular access to legal representation, and without the possibility of challenging the legality of detention. The PTA also creates an environment in which forced confessions are effectively encouraged by permitting statements made to police officers at any time while in custody to be admitted in court as evidence, with the burden placed on the accused to prove that the confession was extracted under duress.

A complex set of factors prohibit male victims of sexual violence in Sri Lanka from coming forward to report this violation. But even if they did, Sri Lanka does not recognise the possibility of male rape under the law. Rather men are defined only as perpetrators of rape. Article 363 of the Penal Code states “a man is said to commit rape who has sexual intercourse with a woman under any of the following descriptions…” (See Section 363 of the Penal Code (Ordinance No. 2 of 1883 as amended). Similarly, the prohibition of statutory rape applies only to girls under the age of 16 years and not to boys (Section 363(e) of the Penal Code in describing conditions for statutory rape refers to “…with or without her consent when she is under sixteen years of age).) Similarly, the prohibition of statutory rape applies only to girls (under the age of 16 years) and not to boys (Section 363(e) in describing conditions for statutory rape refers to “…with or without her consent when she is under sixteen years of age” [emphasis added]). Other provisions under the Penal Code mischaracterize or define sexual violence in a way that they do not reflect the lived experience of survivors, are inconsistent with the more inclusive, gender-neutral definitions under international law, or are otherwise inadequate for prosecuting sexual violence against males.

This legal discrimination against men and boys which is so acutely reflected in Sri Lankan law also permeates other institutions and sectors and contributes to the pervasive lack of medical, counselling and other support services available to male survivors. While services for women are equally inadequate, increased attention on this issue during the post-war phase has triggered a recognition of this issue which remains entirely absent in the case of male survivors. Some medical teaching institutions continue to put forward the understanding that only women can be raped and do not recognise the rape of men. Other representatives of the humanitarian community have admitted to All Survivors Project that sexual violence against men is neither monitored nor responded to during the conflict or outside of it. Added to this is the widespread discrimination against homosexuals which is prescribed in law and the criminalization of consensual same sex acts which may also discourage male survivors from reporting or accessing services for fear that they may be accused of homosexual activity. Specifically, Sections 365 and 365A criminalize certain homosexual acts categorizing them as ‘unnatural offences’. These provisions have been used to persecute members of the LGBTIQ community and serve to reinforce discriminatory gender stereotypes.

During our research, several interviewees conflated male sexual violence with homosexuality or laws proscribing homosexual acts, reflecting both a lack of awareness of the definition of rape and other forms of sexual abuse but also misconceptions about the nature and prevalence of sexual violence against men. One senior human rights activist said: “in order for a male officer to rape a male inmate, he would need to have homosexual tendencies, wouldn’t he?” Perpetrators of same-sex sexual violence often maintain a heterosexual identity. Moreover, consensual same-sex sexual activity is irrelevant to concerns about sexual violence. Consent should be the focus, rather than the sexual orientation of either the perpetrator or victim. A preoccupation with homosexuality, often informed by homophobic attitudes, contributes to the confusion surrounding the issue.

It would be inaccurate to say that Sri Lankan law does not offer any protection for sexual violence against men and boys. Forms of sexual violence that do not constitute rape are prohibited under Section 365 B of the Penal Code relating to ‘grave sexual abuse’ which is defined as any act “committed by any persons, who for sexual gratification…, 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…” without consent or under force, threat or intimidation. While this provision could be used to prosecute male rape and other forms of sexual violence against men and boys, it offers an incomplete remedy for two reasons: Firstly, it carries a lesser sentence than rape under Article 363, thereby effectively treating male rape as a lesser crime than female rape. Secondly by prosecuting rape as ‘grave sexual violence’ the nature of the crime is not only mischaracterized but also diminished.

Therefore, in addition to the fact that the definition of ‘rape’ exclusively applies to women it also remains unduly narrow and inconsistent with international standards. The Sri Lankan Penal code also proscribes ‘forcible castration’, a provision that developed outside of the armed conflict context. Nevertheless, its description of castration as ‘emasculation’ needs revision, as it reinforces regressive ideas about what comprises masculine identity. This is a particularly relevant for male survivors of genital abuse of any form.

The Sri Lankan constitution also fails to provide adequate remedies for sexual violence against men and women. While it prohibits torture, the Constitution does not explicitly reference rape or sexual violence. Remedy for victims of sexual violence can therefore only be sought under Article 11 which prohibits torture, cruel, inhuman or degrading treatment or punishment which means that the sexual nature and specific harms resulting from the act are not addressed. Sexual violence often has consequences for victims’ health, mental health, and sexuality that are distinct from non-sexual forms of torture. However, Article 11 remedies fail to include specific services to address the sexual element of the torture. Although a few fundamental rights applications have been filed under this Article by female survivors of conflict-related sexual violence, outcomes have generally been unsatisfactory. In the meantime, time limits on filing Fundamental Rights cases (generally within one month of the violation having occurred; however, the one-month bar is only suspended pending an inquiry by the HRCSL into the same case as per Section 13 of the NHRC Act), the financial costs involved (including the risk of compensation being awarded against complainants and other challenges act as an effective obstacle to pursuing justice via this route.

Given social barriers and legal challenges, the judicial response to sexual violence against men and boys in Sri Lanka has been non-existent. There is no known case in which conflict-related sexual violence against males has been prosecuted. Senior police officers speaking under conditions of anonymity told us that no cases of sexual violence against male Tamils have been brought before the courts because no complaints have been received by the police and therefore none have been investigated. While under-reporting is a key barrier in achieving accountability for sexual violence against men and boys used within detention settings in Sri Lanka, this contradicts the experience of human rights defenders in Sri Lanka who are aware of attempts by male victims of sexual violence to report, but where the police have either refused to record the complaint or have dissuaded victims from pursuing them.

If conflict-related sexual violence is denied and supressed, it will almost inevitably continue in one form or another. Sri Lanka is a case in point, where the failure to recognize the risks to men and boys or to respond appropriately to reported incidents has led to situation in which sexual violence against men and boys continues to be perpetrated by state security forces and within broader society. A new government was installed in 2015 and it has since made commitments to remedy conflict related violations and institute reforms. This offers victims of sexual violence and other human rights violations hopes for redress. While progress is slow, and there is increased concern within domestic and international human rights activists about the new government’s commitment to change, including on transitional justice measures. Addressing the legacy of abuse over decades of war is a long process but for now removing repressive counter-terror legislation which facilitates conditions for arbitrary detention and sexual violence could be a solid start.