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In 1995 several amendments were made to the Penal Code and the Criminal Procedure Code with a view to enhancing protection to women and children from abuse, especially sexual abuse. The main changes brought about in the law by these amendments can be summarised as follows:

a. Creation of several new offences such as child cruelty, using children for obscene publications, procuration, sexual exploitation of children, incest and grave sexual abuse.
b. Provision for enhanced penalties and minimum mandatory jail sentences.
c. Recognition of persons under 18 years of age as children for the purpose of the offences dealt with by these amendments.
d. Setting the age of statutory sexual abuse or consent to sex at 16 years.
e. Granting exclusive jurisdiction over these offences to the High Court.

On par

On par with these amendments to the criminal law and procedure, marriage laws too were amended. Accordingly the marriageable age for the majority of the population in this country (except for those governed by the Muslim Law) was set at 18 years. Medical opinion that girls under 18 years are not physically and psychologically equipped to deal with motherhood and also the understanding that those under 18 years of age are children contributed towards the determination of the marriageable age.

The authorities responsible for enacting these laws (may have) expected that these changes would result in the prevention /reduction or minimising of: (a) sexual abuse of women and children; (b) child marriages, and (c) child pregnancies. They may have also expected that these laws would be smoothly enforced without much difficulty and would result in achieving the desired objectives. Let us examine the consequences of the enforcement of these laws and the existing situation in the light of experience gathered since the enactment of these laws.

Prior to 1995 the marriageable age for girls was 12 years (14 years in the case of Burghers) and 16 years for males. Though they had the capacity to marry, those who were under 21 (since 1989 under 18) years of age, being minors, required parental consent for their marriage. Marriages contracted by minors without parental consent were not void, but voidable. A marriage contracted by a minor automatically got validated on his/her attainment of majority.

Many parents, especially in rural areas and in plantation sector, used to give their daughters in marriage while they were quite young, long before they attained the age of majority. Under the law relating to rape, then in force, any person having sexual intercourse with a girl under 12 years of age, even with parental consent, was deemed to have committed rape. Law did not make any distinction as to religious beliefs or customary practices of any particular group of people.

Punishable offence

Under the amendments brought to the Penal Code in 1995, having any type of sexual relationship with any child, whether a girl or a boy, under 16 years of age is an offence punishable with mandatory minimum jail sentence of ten years. Whether the offence is grave sexual abuse, rape, gross indecency or unnatural offence, the position is same.

If the child is under 16 years of age, the consent of the child is immaterial. Parental consent has no relevance at all. The Law provides protection to all children under 16 years of age against sexual abuse.

In the case of children of 16 years of age or above, having a sexual relationship with such a child becomes an offence only if it is committed without the consent of the child.

If the sexual act is committed with the consent of the child it is not an offence. Parental consent is immaterial. Children above 16 years of age have the capacity to consent to sexual conduct.

However they have no capacity to marry till they are 18 years of age. In other words, children between 16-18 years of age can engage in sexual activity, they can live together as husband and wife, but they cannot marry. Even with parental consent they cannot marry.

Law not concerned

The law does not provide the same protection to children between 16-18 years against sexual abuse, which it provides to children under 16 years of age. What is the position in law if this sexual relationship results in pregnancy or childbirth? Will the law permit them to marry? Can they legitimise their relationship? The law is not concerned with these problems faced by children who are granted the privilege of consenting to sex.

With the age of consent for sex fixed at 16 years and age of marriage at 18 years, the lives of children have been jeopardised. In raising the age of marriage if the intention of the legislation was to protect children, it is defeated by allowing children over 16 years to engage in sexual activity of their own free will, but barring them from marriage.

Though not every marriage produces a child, or for that matter a marriage is assumed in the case of motherhood, some of the statistics randomly obtained from some hospitals around the country with regard to under-aged mother is worth pondering.

These are statistics collected from 7 General Hospitals in District Capitals.

In the two years 1998 and 1999, 337 children under 16 years of age and 6,599 children between 16-18 years of age have given birth to children in these 7 hospitals.

Statistics from General Hospitals in other districts, from Base Hospitals in other towns and from rural hospitals - are not available with us. In Colombo there are to maternity hospitals - Castle Street Maternity Hospital and De Soysa Maternity Hospital.

There are two General Hospitals - Colombo South General Hospital at Kalubowila and Colombo North General Hospital at Ragama with maternity wards. There are 17 more District Hospitals in District capitals. There are a large number of Base Hospitals in towns like Negombo, Chilaw, Homagama, Avissawella and Wathupitiwela. In almost every Divisional Secretariat area there is a rural hospital. If statistics are collected from all these hospitals, one can safely assume that there are over 2,000 under 16 children and over 15,000 children between 16-18 years becoming mothers in a given year.

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