Child sexual exploitation and child prostitution in Sri Lanka: A legal perspective.
Abstract— child sexual exploitation and child prostitution are some of the major challenges which Sri Lanka is facing as a developing tourist destination. Poverty, lack of education and inequality are some of the main causes for these kinds of issues. Sri Lanka is sometimes known as the heaven for sexual relationships among tourists due to the commonly found child prostitution services.This issue arises mostly in south Asian countries like Sri Lanka, India, Nepal ,Cambodia, Thailand and Philippine. Sri Lanka has a beautiful coastline around the country as it is an island so it was an attractive tourist destination which bought the country a huge benefit for the country’s economy but on another hand it exploited the countries future generation by giving a new face to these kinds of issues. This research will be focused on commercial sexual exploitation of children and child prostitution in Sri Lanka, how it is addressed on the legal framework and how the law has tried to prevent them and protect the children. Further, it focuses on the pros and cons of the legislation, provisions and make recommendations for it.
Keywords—sex tourism, sexuality, child prostitutes, beach boys, childhood, prostitution
As stated in Article 1 of the United Nations Convention on the Rights of the Child 1989, “A child means every human being below the age of 18 years, unless under the national law applicable to the child. Majority is attained earlier.” In Sri Lanka the age of majority is established as 18.
Children are the most vulnerable group in the growing society. Though there are so many child rights available still children are faced to sexual abuse, commercial sexual exploitation, child marriages and international adoption trade are some of them.
The main objective of this research is to analyse whether the existing Sri Lanka law related to commercial sexual exploitation of children are adequate to protect the children. Furthermore, it discusses suggestions on how to protect and prevent this issue.
This research is a normative research and was based on a literature review that includes statutes, international treaties and conventions on child sexual exploitation and journal articles on sexually exploited children. Additionally reports prepared by National Tourism Administration, UNICEF, International Labour Organizational have been used to enrich the research.
III. Discussion and Conclusion
Among the major problems that today’s world is facing, sexual exploitation of children is among the most crucial. Sexual exploitation of children is a serious challenge of most developing countries which are mostly tourist destinations. A study conducted by the United Nations Children’s Fund (UNICEF) in 2001 on commercial sexual exploitation of children provides a range of highly challenging statistics from around the world. For example, the study states that in between 400,000 and 500,000 child sexual workers are in India. Cambodia has a 31 per cent of minor sex workers. Even in Europe for example in Lithuania 20 per cent of prostitutes are children. Mostly this can be seen in tourist destinations especially in developing countries in South – East Asia such as Thailand, Cambodia, and Sri Lanka, Philippines, Nepal, India and other tourist destinations in Europe, Africa and America.
Tourism itself is not the cause of sexual exploitation of children, its nature provides all the necessary factors such as social inequality, corruption, gender discrimination, cheap labour practices and poor educational opportunities can be identified as the root cause of this issue. Because of these conditions, children prematurely engage in livelihood activities, the most in demand and most lucrative of which is sex. (Richter, ;Swart-Kruger, 1995)
Mainly child Sexual exploitation is done through child prostitution. This is much invisible in Sri Lanka, but as the tourism industry developed and foreigners start to travel to Sri Lanka this problem got a new face because some of the foreigners were seeking sexual relations with young boys.
When it compares to other South Asian countries, in Sri Lanka boys are more vulnerable than girls. According to the UNICEF estimate, over half of the 30,000 children sex workers in Sri Lanka are boys. In Sri Lanka there two types of child prostitution can be found. One is mostly known as “Beach Boys”, who are often forced to work by those who own property along the coastline. Beach Boys or male prostitutes are mostly self-employed and work alone or in gangs. They practice their trade in the beach resorts along the west and south-west coasts. Mostly their age ranges between 8-15 years, most of them are dropouts from school.
The other is “Bonded Children”, who are as young as five years of age. They are used for prostitution and pornography, which are controlled by international rings. These children come from poor families around tourist coastal areas. Most of them were trafficked by an agent or pimp and put into prostitution. Often these children are injected with drugs or hormones and at last they get addicted to them. If these children are not removed from this in their early age it is difficult to effectively rehabilitate them.
Prostitution of boys is unrecognised and a prohibited subject in many South Asian countries, as a result of this cases which are involving the prostitution of boys are often unreported and covered in silence. Usually the perpetrators who are involved in these kinds of crimes are Swiss, German, Dutch and French paedophile.
Hence, this research analyses the existing protection and trends in the application of Sri Lankan law in relation to protect the children from sexual exploitation and prostitution.
Commercial sexual exploitation of children and child prostitution defined.
As stated in the Stockholm Declaration and agenda for action of the world Congress against commercial sexual exploitation of children, commercial sexual exploitation is “A fundamental violation of children’s rights. It comprises sexual abuse by the adult and remuneration in cash or kind to the child or the third person or persons. The child is treated as a sexual object and as a commercial object. The commercial sexual exploitation of children constitutes a form of coercion and amounts to forced labour and a contemporary for of slavery.”
It is important to distinguish Child Sexual Abuse (CSA) from Commercial Sexual Exploitation (CSEC) to understand the issue well.
” ….. criminal practices that demean, degrade or threaten the physical and psychosocial integrity of children, in particular, sexual abuse by an adult and remuneration in cash or kind to a child or third party. There are three primary and interrelated forms of CSEC: Prostitution, pornography and trafficking for sexual purposes. Other forms of CSEC can include child sex tourism, and child marriages. (ECPAT International & plan international report on laws & legal procedures concerning the CSEC in India, 2004).
The term, “CSEC implies sexual abuse while sexual abuse can be done within the home, but it never implies necessarily the child should be further exploited to the benefit of the abuser or others.
The optional protocol to the convention on the right of the child 2000 on the sale of children, child prostitution and child pornography an international instrument focusing on all three aspects states child prostitution as, “the use of child in sexual activities for remuneration or any other forms of consideration”.
Legal mechanism for the protection of children from commercial sexual exploitation and child prostitution.
International law, human rights and child rights instrument provides sufficient protection for CSEC. United Nations convention on the rights of child (UNCRC), 1989 prohibits the involvement of minors in the sexual industry. Children are recognized as a group requiring “safeguard and care, including appropriate legal protection” in order for them to “fully assume (their) responsibilities within the community”, says the preamble of the UNCRC.
Sri Lanka adopted the UNCRC in July 1991 and became a signatory to the global plan of action for children also in 1991. Article 34 of the UNCRC makes compulsory for state parties to undertake to protect the child from all forms of sexual exploitation and sexual abuse and to take all appropriate national, bilateral and multilateral measures to prevent the following:
Inducement or coercion of a child to engage in any unlawful sexual activity.
Exploitative use of children in prostitution or other unlawful sexual practices.
Exploitative use if children in Pornographic performances and materials.
As stated in article 25 and 39 the UNCRC state parties should take appropriate steps to recover physical, psychological and social integrity of children who have been the victims of any form of sexual exploitation. Article 36 also says that protection should be afforded to the child against all form of exploitation detrimental any aspect of their welfare.
Sri Lankan law: As Sri Lanka is a dualism country it has to implement national legislations to make these international conventions active within the country. So, Sri Lanka took certain steps to give effect to these conventions at the national level. The penal code of Sri Lanka; ordinance no.2 of 1883 and subsequent amendments, the vagrant’s ordinance 1941, the brothels ordinance, the children and young person’s ordinanceno.48 of 1939 are the legislations of Sri Lanka which are relevant to child sexual abuse and CSEC.
In article 27 (13) of the second republic constitution of Sri Lanka 1978 states, “children shall be protected” and the action will be taken through article 12(4) of the constitution. There wasn’t any legislative provision of criminalizing a sexual abuse or exploitation of children until the penal code amends in 1995, 1998 and 2006.
In 1995 sexual exploitation of children was introduced as a crime under the Sri Lankan penal code. Section 360B of Sri Lankan penal code, criminalises any person who allows a child to be on any premises for the purpose of ‘causing the child to be sexually abused or to participate in any form or sexual activity or in any obscene or indecent exhibition or show’. Furthermore, the section 360B of the penal code provides penalties for sexual exploitation of children it says a person who commits the offence shall on conviction be punished with imprisonment of either description for a term not less than five years and not exceeding twenty years and may also be punished with fine. (Penal code amendment, 1995)
The section 363 of the penal code defines rape as a forced penetrative sexual intercourse with a female victim by a male perpetrator. Furthermore section 364 (e) mentions about rape of a female child under 18 years and the later part of the section state about statutory rape and penalize with rigorous imprisonment for a term not test than ten years and not exceeding twenty years and with fine and shall in addition be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person and if offence Is committed in respect of a person under sixteen, years of age, the court may, where the offender is a person under eighteen years of age and the intercourse has been with the consent of the person, impose a sentence of Imprisonment for a term less than ten years.
However, an intercourse with a male child under the age of 16 or 18 is not recognizing under rape or statutory rape. But homosexual relations are prohibited and shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be punished with fine and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shell also be ordered to pay compensation of an amount- determined by court to the person in respect of whom the offence was committed for injuries caused to such person under section 365 and 365(A) of the penal code.
Specifically these sections don’t protect male children age between 16 to 18 as statutory rape protects female children. Sections 365 and 365(A) can be used as convicting children as co- Perpetrators rather than victims. So abolition of articles 365 and 365A of the Penal Code is better to prevent children from being treated as offenders instead of victims in exploitative situations. Or else the phrase “where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished” should be repealed. Even section 363 of the Penal Code should be amended and include the offence of statutory rape for boys.
If we focused on England, Wales and North Ireland (United Kingdom) they are much forward than Sri Lankan law because ………… have to add some countries and compare with their laws and enforcement…………
The children and young person’s ordinance no.48 of 1939(CYPO) has provisions on child prostitution and child brothel. Section 72(2) on chapter 5 of the CYPO states, Where any offence mentioned in subsection (1) (offences which falls under rape and sexual harassment) has been committed in respect of a child or young person being a female, a person shall, if he has knowingly allowed her to consort with, or to enter or continue in the employment of, any prostitute or person of known immoral character, be deemed to have caused or encouraged the commission of that offence for the purposes of this section. This offence has penalties under section 72(1) of CYPO the offender is liable to imprisonment of either description for a term not exceeding two years. When reading this section it is clear that CYPO has legal provisions to criminalize and punish such offenders but do it really protect the entire children, clearly the answer is no because these sections have only focused female children so its proven that even CYPO doesn’t protect the male child.
But however, section 73 of CYPO
Sri Lankan law prohibits the mechanisms surrounding child prostitution, including procuring a child for prostitution, permitting a child to be on premises for the purpose of sexual abuse, and causing ‘the seduction or prostitution’ of a child. (Jason Squire and Sarasi Wijeratne, 2008)
As the above discussion reveals, it is apparent that Sri Lankan law relating to child sexual exploitation and child prostitution has its own weaknesses. When deeply going through the penal code it can be understood that penal code as a whole address all forms of sexual abuse but it doesn’t properly protect children between ages 16 to 18. It can be pointed out as a weakness of the legislation provisions. Though the legislation is successful it has some gaps in it, one is its inability to address the issue of child prostitution., specially boys who are sexual exploited mostly by tourists. Another weakness on the legislation is it doesn’t prohibit directly or doesn’t directly consider as an offence of having commercial sexual intercourse of a client with a child. So, I recommend that the legislation provisions should be amended with the above gaps filled to resolve these issues and protect children.
Another side of this is that the issue was addressed by the legislation provisions though the success of these legislations and mechanisms are still on doubt. Law has all the measures to apprehend and punish the offenders and protect the children but the difficulty lies in enforcement too.The law enforcement authorities should be monitored so they will take positive steps to address this issue and protect the children who will be the future of the country.
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