• Experts suggest centralised data collection system to reduce legal system delays and dropouts

Establishing a centralised data recording mechanism to collate the necessary

data – found with the Police, judicial medical units, and courts – with the

necessary legal provisions and data protection mechanisms, as well as

further research, are required, as a considerable number of cases drop out

of the legal system at different levels and are pending in courts for very

lengthy periods, with this attrition being attributed to various factors.

These recommendations were made in an original article on the “Attrition of

cases of sexual offences from the criminal justice system of Sri Lanka: A pilot

study”, which was authored by M.H.M.A. Izzath (attached to the Office of

the Judicial Medical Officer at the District Base Hospital in Dambulla) and S.

Kodikara (attached to the Peradeniya University’s Medical Faculty’s Forensic

Medicine Department), and published in the Medico-Legal Journal of Sri

Lanka 10(2) in December 2022.

Izzath et al. emphasised that in order to address the issue of low conviction

rates in sexual offences, more insight is warranted regarding the key stages

of attrition and the associated characteristics.

The statistical data published by the Police Department provide a simple

illustration of the broad categories within a given year. Izzath et al.’s paper

reported the findings of a longitudinal analysis of cases over a longer period

with more detailed characteristics. This was a retrospective, descriptive,

cross-sectional study conducted utilising police reports on sexual offences as

the source of data. The recordings in the major crime registries in three

police stations (Polonnaruwa, Aralaganvila, and Medirigiriya) in the

Polonnaruwa District, from 1 January 1998 to 31 December 2007, were

obtained. All the complaints under the category of sexual offences were

included in the study, including convicted and pending trials at courts as of 1

January 2020. The cases established to be fabricated (24) were excluded.

A total of 427 cases of alleged sexual offences (excluding 24 cases

established to be fabricated) were reported to all three police stations

during the 10-year study period from 1998-2007. The vast majority of the

victims (403 - 94%) were female, while all the perpetrators were male. Of

76/18%, the victims were over 16 years of age, while 87/20% of victims were

less than 12 years of age, and 264/62% of the victims were aged between

12-16 years. Approximately 6/1% of those victims were either physically or

mentally disabled.

Rape and grave sexual abuse were the major types of sexual offences

reported each year. There was no notable change in the total number of

reported cases during the study period.

As of 2020, the number of cases that had received a guilty verdict at a trial

was 88/21%, while 141/33% of the cases were pending in Magistrate’s

Courts (MCs) and High Courts (HCs) or were waiting for the Attorney

General’s (AG) advice. The acquitted cases (24) on the basis of fabrication

were excluded from the study and the cases that received a verdict of not

guilty on the basis of there being no evidence, there being conflicting

evidence, the case not being proven, etc., were considered to be attrition.

The shortest period that resulted in a guilty verdict from the date of the initial complaint was 263 days, while the median was 1,978 days (over five

years).

The conviction rates for different types of sexual offences were 39/16% in

rape, 32/33% in grave sexual abuse, 9/15% in apprehension, 5/28% in incest,

and 3/30% in unnatural offences.

Several key stages of attrition were identified in 198/46% of the cases which

dropped out of the criminal justice system, after failing to receive a guilty

verdict. Varying factors resulted in attrition at the level of the Police

investigations, at the MC level, and at the HC level. These include the victim

marrying the perpetrator, the case not being proved or on the basis of

insufficient evidence, withdrawal by the victim, on the AG's advice, there

being no evidence, the non-participation of the victim, settlement, the death

of the accused, the accused not being identified, conflicting evidence, the

death of the victim, consenting, the reason not being documented, and the

victim being unable to lead evidence.

At the HC level, 87/20% of the total reported cases failed to end up in a

guilty verdict and the rate of attrition in MCs and the Police was 69/16% and

42/10%, respectively. Another 81/19% of the cases were waiting for the AG’s

advice pending at MCs and 60/14% in HCs. As of 1 January 2020, the average

period of pending cases from the date of initial reporting of the offence was

more than 16 years.

The attrition rate was higher when the victims were more than 12 years of

age. There was a significant association between attrition and the age group.

There was a significant association between attrition and the age gap

between the victim and the perpetrator. The rate of attrition was the highest

in cases where the age gap between the victim and the perpetrator was less

than 10 years.

The attrition rate was 191/47% in female victims (a total of 403 reported

cases) and seven/29% in male victims (a total of 24 reported cases). There

was no significant association between attrition and gender.

In cases where the alleged offence is apprehension (59 reported cases), the

attrition rate was 35/59% and 26/27% in cases of alleged grave sexual abuse

(98 reported cases). There was a significant association between attrition

and the type of sexual offence.

With the increase in the time gap, the attrition rate has also increased, while

the conviction rate has reduced. There was significant association between

attrition and delay in the reporting of the offence.

The study demonstrated no notable patterns of change in the number of

reported cases of sexual offences each year, which included alleged rape,

grave sexual offence, apprehension, incest, and unnatural offences during

the 10-year study period. Most victims were female, while all the

perpetrators were male and the majority of cases pertained to serious

charges of rape and grave sexual abuse. The largest proportion of victims

(264/62%) belonged to the age group of 12-16 years of age.

According to UNICEF country reports and statistics published by the Police,

the conviction rate for sexual offences in Sri Lanka is very low, amounting to

1.5-2%. However, this study revealed a much higher conviction rate of 21%

of the total cases (one in five cases) as of 1 January 2020, which is at least 13

years after the initial reporting of the cases. The discrepancy is possibly

because UNICEF reports and statistics published by the Police had

considered only convicted cases during the relevant calendar year where

court procedures had not been initiated in many cases.

Three key stages of attrition were identified after the offence is reported to

the authorities, namely at the police investigative level and at the trial levels

in the MCs and HCs. Attrition at the investigative level was one in 10

reported cases (one in five cases of attrition). This observation indicates a

possibility of the non-reporting of cases by victims along with the finding of

no drastic increase in the number of reported sexual offences in this study,

while many international studies have reported a drastic increase in the

reporting of sexual offences. The study revealed several reasons for the attrition of sexual offences,

including marriage, acquittal in the courts due to insufficient evidence,

withdrawals, non-participation by the victim, and prosecutors dropping the

case citing insufficient evidence. The most cited reason for attrition was

marriage between the victim and the perpetrator. S.M.H.M.K. Senanayake’s

“Reasons for female children to elope with boyfriends in the Anuradhapura

District” reported that a significant number of underage girls are produced

for medico-legal examination following elopment with their boyfriends and

engaging in sexual intercourse, as this amounts to statutory rape. The courts

allow them to marry at the age of 18 years before a judgment is given. These

types of cases are likely to drop at the initial stages of the investigation.

Given that this study has demonstrated that 28/60% of the cases of attrition

due to marriage had occurred at the HC level, this raises a possibility of

other factors resulting in the marriage between the victim and the alleged

perpetrator.

Conviction rates for male and female victims were almost identical at 21%;

however, the attrition rate was noted to be high in female victims (47%

versus 29%). The number of male victims in this study was very low and

there was no significant association between attrition and gender.

There was a significant association between attrition and the type of sexual

offence. A higher rate of attrition in cases of apprehension followed by

alleged rape and incest was noted. Apprehension in essence would have no

material evidence, which would explain the higher rate of attrition. However,

in terms of alleged rape, the observed higher attrition rates require further

research to identify the reasons. Except for a very few cases, the records in

Police registries were highly inadequate (on details regarding medico-legal

examinations and the findings of the examinations and trace evidence

analysis).

The highest number and proportion of attrition were noted in victims

belonging to the 12-16 years age group and in cases where the age difference between the victim and the perpetrator was less than 10 years.

This phenomenon demonstrates the relationship between statutory rape

and elopement and a large number of cases dropping out of the criminal

justice system before a verdict is reached.

A higher conviction rate and lower attrition rate were noted as expected in

cases with shorter intervals between the alleged incident and the initial

presentation. However, the records were insufficient to analyse the

relationship between the presence or absence of medical evidence, trace

evidence, and other forensic medical factors.

The major limitation of this study was not having a centralised source or

database to obtain important data on cases of sexual offences. Many

countries employ computerised databases to store data and manage sexual

offences.