Under international law, rape committed by government officials or armed political groups during armed conflict constitutes torture. Over the years rape has also become accepted as a form of torture under the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984). The UN Special Rapporteur on torture in 1992 stated that "since it was clear that rape or other forms of sexual assault against women in detention were a particularly ignominious violation of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture" (UN Doc.E/CN.4/1992/SR.21, para 35, quoted in AI Index: ASA 37/0001/2002 )
Several International covenants UDHR, ICCPR and the Declaration on the Elimination of Violence against Women state categorically that gender-based violence is a direct violation of women’s inherent right to life, liberty and security of person, and to be free of torture.
The Committee for the Elimination of All Forms of Discrimination Against Women (CEDAW) has identified "gender-based violence as a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men?.and added (General recommendation no. 19, 1992) ?"the definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty."
Since States are obliged to do everything in their power to condemn and prevent discrimination against women by any party ?state or private - governments are accountable for failing to take measures to prevent violence against women amounting to torture.
Sri Lanka became a party to the Convention aginst Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1994. Subsequently, an Act was passed in Parliament in November 1994 making torture punishable by imprisonment for a term of 7 (minimum) to 10 (maximum) years and a fine.
In 1995 and 1998, through the Penal Code (Amendment) Act Nos. 22 of 1995 and 29 0f 1998, the Code of Criminal Procedure (Amendment) Act, No. 28 of 1998; the Judicature (Amendment) Act, No. 27 of 1998 and the Evidence (Special Provision) Act of 1999, the government has put in place a legal framework which in principle should allow a more effective prosecution of alleged rapists.
Among the changes to the Penal Code was the inclusion of a new provision (Section 364(2)) recognizing rape in custody and gang rape as cts constituting grave crimes. The punishment for rape in custody as a form of aggravated rape ranges between 10 years (minimum) and 20 years (maximum).
In the case of Ms Sriyalatha cited above, the magistrate of the Wariapola magistrate’s court, Padma Pahihakkara, issued the following order:
"While the police have the right to arrest an accused and investigate and take a statement from him about the relevant happenings, the police have no power to inhumanely assault anyone. I order Deputy Inspector General Wayaba to investigate this matter and submit a complete report to this court. I order the registrar of this court to send a copy of this order to the deputy inspector general of police. The issues arising from this case
1. The first issue is that the police arrested Ms Sriyalatha, and subsequently detained her for 2 days without any court order or charge. She was also held incommunicado, and her parents were not informed nor allowed to visit her while in police custody. This is in itself illegal and this is the kind of practice which gives the opportunity for ill-treatment and torture of arrestees. 2. The ill-treatment and torture itself are crimes which are punishable under Sri Lanka’s Act. No 22 of 1994,...