conviction for violent crimes, including grave offences of sexual violence. The Penal Code has in Chapter
XVI considered sexual violence a grave offence, and an infringement of women and men’s right to bodily
integrity and personal security. Rape has never been considered an offence to chastity. All these offence
are described as “affecting the human body or affecting life.” More recent amendments to the Penal Code
in 2006 as observed, also include psychological or mental trauma as a factor in assessing compensation in
several cases of bodily harm. This ideology and conceptual framework must be reflected in sentencing
guidelines, particularly in the context of the Anuradhapura Rape Case and the recent Kurunegala Rape Case,
reiterating that minimum sentences for these crimes imposed by the 1995 Penal Code Amendment are
unconstitutional, as an infringement of the judicial discretion in sentencing. If a Supreme Court review of
these two cases does not take place, sentencing guidelines are critical to ensure justice to victims of GBV.
Evidence Ordinance procedures in regard to blood tests, need to be reviewed, in order to support criminal
investigation procedures. Amendments to both the Penal Code and Evidence Ordinance may be required.
The ICCPR Act now provides specifically for some aspects of legal aid in criminal prosecutions. Awareness
of these provisions must be created through the Legal Aid Commission working with the Bar Association.
Civil Law and Procedure
The factor of the law delays and difficulties of legal representation make access to justice through litigation
in civil cases a remote prospect for most women. The Legal Aid Commission’s resources to work with the
Bar Association, and civil society organizations including women’s counseling services for GBV should be
increased to strengthen service delivery through an institutional network. Practice guidelines and procedures
in regard to GBV cases can be helpful in preventing inconsistency within courts dealing with such cases.
Responsible Agency : Ministry of Justice, Attorney General’s Department
The Domestic Violence Act (2005)
There are several gaps in the Act and they need to be addressed urgently.
i) The definition of domestic violence cross references Chapter XVI of the Penal Code and identified offences.
The question of whether domestic violence should be criminalized as a separate offence to cover diverse
acts of GBV by amendment to the Penal Code or creating a distinct and punishable offence under the DV
Act should be considered. This will make it an Act that goes beyond providing a civil remedy.
The current definition of relationships for the purpose of identifying the abuser in S. 23 does not include
the spouse of a son, daughter etc. This excludes therefore a son-in-law or daughter-in-law who could
perpetrate domestic violence, especially on an elderly woman.
ii) S. 11 and 12 provide for interim orders, protection orders and supplementary protection orders. There
are gaps in these provisions.
a)
S. 11 (1)(l) provides for an order prohibiting selling and transferring etc. of the matrimonial
home. But the restriction to the matrimonial home, and that this act should be in order
“to place (the applicant for an order) in a destitute position” prevents a woman with some
financial resources from asking for relief, including for other alienations of property, which
also constitute financial violence.
COMPENDIUM ON LAW, GENDER BASED VIOLENCE AND REPRODUCTIVE RIGHTS
53