action brought against a public official, on the basis of inaction by the State in preventing a violation. (See Annex torture and the Constitution). However only public officials and the police can be prosecuted for torture under the Torture Act 1994, since the definition of Torture is more limited. (Torture Acts 12). This Act however clarifies that an offence committed by an official or police “when there was a state of war, threat of war, internal political instability or any public emergency” is not a defence. (Torture Act S. 3 (a)). The order of a public authority or superior officer is not a defence to culpability. S. 3 (b)). Rape in Legal or Illegal Custody and Detention (Custodial Rape) The criminal law and jurisprudence on torture by a public official or person in authority has been strengthened by the changes to the law on custodial rape in the Penal Code. The amendment of 1995 introduced a new concept of rape in custodial situations that was modified again by an amendment of 1998. S 363 (b) as amended in 1998 now states that rape can be committed even with a woman’s consent in situations of “lawful or unlawful” detention. When a woman alleges rape while in lawful or unlawful detention, her consent will not be a defence and the proof of the fact of intercourse with a detenue will result in conviction for rape. This seems to be a form of strict liability for rape, and can be used to prosecute for sexual violence in times of civil or armed conflict. In the famous Kataragama Murder Case (Wijesuriya v State, see Annex), involving a female detenue, these provisions could have resulted in a conviction of rape based on sexual violence perpetrated in custody. Custodial rape in other situations like in hospitals and shelters also attracts greater penalties and is considered a grave form of rape in amendments introduced in 1995. (S. 364 (a) to (c)). c. Marital Rape In defining rape as non-consensual sexual intercourse with a woman, the 1995 amendment departed from the prohibition of prosecution for marital rape in English Common law. It recognized that rape could be committed in marriage, where there was coerced or non-consensual sex. Thus S.363 (a) says that rape occurs when sexual intercourse takes place without consent “even where such woman (the victim) is his wife.” However marital rape was only extended to one category of cases – where “she (the victim) is judicially separated from the man.” (S. 363 (a)). Judicial or legal separation in the Marriage law of Sri Lanka is a legal remedy available only after court proceedings. (See Annex, Marriage, earlier). Marital rape is therefore not an offence if a woman is not legally separated by court order, and she is living with her spouse, or is in a situation of de facto separation. A wider concept of marital rape to cover cases of de facto separation was advocated in the proposals for reform, but the government adopted the more limited interpretation of marital rape in the Indian Penal Code. (See Annex). Intimate partner sexual violence in the form of coerced sex in situations of cohabitation will not come within the restrictions on the law on marital rape, but would have to be addressed within the general principles on rape in the Penal Code. d. Statutory Rape or Rape of Underage Girl below Age of Consent The Penal Code amendment of 1995 modified the earlier law on sexual intercourse with a minor girl below the age recognized by law for expressing consent. S.363 (e) states that sexual intercourse “with or without her consent” is rape when she is under 16 years. This provision incorporates the concept 16 COMPENDIUM ON LAW, GENDER BASED VIOLENCE AND REPRODUCTIVE RIGHTS