By Nayana
The recent case in which an Army sergeant was sentenced to seven years rigorous imprisonment for possessing indecent photographs of a young child, serves to highlight some of the positive features as well as a point of controversy surrounding the recent strengthening of the laws against child abuse.

The start of the legislative reform process dates back to Act No.22 of 1995 which introduced a series of measures for the protection of women and children which, incidentally, were the first amendments to this country’s century-old Penal Code.

Among the new measures introduced was Section 286A(1) which made it an offence to use children in obscene shows or for the making of obscene films or photographs, as well as to sell or distribute such material or, being a parent or guardian of a child, to permit the child to be used for any of such purposes.

This wide-ranging section also makes it illegal to be in possession of indecent or obscene photographs or film of a child, and it was under this provision that Sgt Dharmadasa was indicted in the High Court of Colombo.

Prior to the 1995 Amendment, only the possession of obscene material for purposes of sale, distribution or public exhibition was punishable, and the penalty was no more than a fine and up to 3 months imprisonment.

The offences set out in Section 286A of the amended Code are punishable with a prison term of not less than two and not more than ten years. By a further piece of legislation passed last year, Parliament clarified its intention that there should be no power to suspend sentences in the case of offences where a mandatory minimum sentence was prescribed.

While there is no doubt that the Penal Code (Amendment) Act of 1995 will help to close the door to many forms of child abuse as well as sexual abuse of women which hitherto were either not punishable or attracted only minimal sentences, it is also likely that the laying down of statutory minimum sentences will attract controversy.

The need to prescribe minimum sentences is said to have arisen from the fact that in a number of rape cases the

accused were given suspended sentences, despite the fact that even the Penal Code in its original form clearly regarded rape as a serious offence in respect of which it allowed for imprisonment up to twenty years.

The imposition of stiff mandatory prison sentences for nearly all the offences under the 1995 Amendment which include rape, incest and the sexual exploitation of children was widely welcomed by feminists and child welfare groups. Nevertheless, legislative intervention in what is traditionally regarded as a judicial function has always tended to attract controversy.

The provisions for mandatory minimum sentences contained in the anti-ragging Bill which came before the Supreme Court earlier this year were struck down as being unconstitutional, but the Court expressly limited its comments to the provisions of that particular Bill under which the sentencing provisions were found to be exceptionally harsh, "piling punishment upon punishment", and contained clauses which would have subjected students to harsher penalties than other persons charged with similar offences under the regular criminal law.

Such considerations would not apply to the Penal Code Amendment of 1995 which is uniformly applicable to all persons. Nevertheless some of the issues discussed by the Court in its judgement on the anti-ragging Bill give cause for thought in respect of all mandatory sentencing provisions, namely that:

"A mandatory minimum sentence involves a legislative determination of punishment and a consequent erosion of judicial discretion ..... it is a general determination, in advance, of the appropriate punishment, without a consideration of relevant factors which proper sentencing policy should not ignore, such as the offender, his age and antecedents; the offence and its circumstances; the need for deterrence; and the likelihood of reform and rehabilitation."

On the other hand, the judges left open a window to the legislature when, having specified that they were not holding mandatory minimum sentences to be unconstitutional per se, they went on to say this:

"If the background of the Bill had been that .... the judiciary had displayed undue leniency, thereby seemingly condoning ragging, there might have been a need for a legislative fetter on judicial discretion in the form of mandatory sentences. But there is no suggestion of any such leniency."

In the case of the 1995 Amendment, a perceived leniency in regard to sexual offenders was the very reason for the stipulated sentences.

In Sgt Dharmadasa’s case, the subject of the obscene photographs was a child aged about six years, and it was the accused himself who had given the pictures for developing. Defence Counsel is reported to have pleaded in mitigation that the accused was a soldier serving the country and had no previous convictions.

High Court Judge Mahanama Tilakaratne apparently did not consider these to be mitigating circumstances since, on the mandatory scale of two to ten, he imposed a sentence of seven years.

There will be many who will argue that the sexual abuse of a child can never have mitigating circumstances. On the other hand, if the several offences which are lumped together under Section 286A(1) are placed on a graded scale of moral blameworthiness, the mere possession of indecent photographs might be considered to be at the lower end - nearer the two years than the ten.

The sentence in Dharmadasa’s case therefore begs the question as to whether there are any circumstances in which a mere two or three year sentence will be considered appropriate. In any event, time may show that the imposition of mandatory minimum sentences will not necessarily result in uniformity of sentencing norms. Other measures will have to be devised for that, presumably with judicial cooperation.

There is also the question of what happens where the offender himself is a minor. For example, the 1995 Act makes provision in cases of statutory rape (i.e. intercourse where the girl is under 16) for waiving the minimum sentence requirement if the offender is under 18 years of age and the incident took place with the girl’s consent. However, no such reprieve is given to a juvenile who flicks somebody else’s dirty pictures.

An interesting footnote to the Dharmadasa case is that the offence first came to light because the commercial film developer to whom the camera film had been given chose to report the matter to the Police - something he was not bound to do under the law as it stood at that time (May 1997).

In order to forestall this lacuna in the law being exploited through some less public-spirited film developer in the future, a further amendment to the Penal Code was passed earlier this year placing a legal duty on developers to report to the Police any obscene or indecent photograph or film of a child which comes into their hands.