The advent of rape pornography in sri Lanka

BY FAIZER SHAHEID-2017-07-12

The gruesome rape and murder of Vithya Sivaloganathan in 2015 is hardly

discussed anymore, even among the activists who laboured and campaigned
vigorously to have the perpetrators arrested, at least, not outside of the North
where the entire ordeal took place. However, the case filed in the Jaffna High
Court has progressed steadily, and as if the details of the rape and murder were
not already disturbing enough, investigations have unearthed information far
more disturbing than originally anticipated.

Let me put it in perspective. Imagine that your wife, or daughter, or mother, or

sister, or even a close female relative or friend was abducted, raped, and
murdered in a gruesome manner. How would you deal with a situation like this?
The information itself is bound to haunt you, if not cripple you, for the rest of
your living days. Having to explain to the ever inquisitive gossip mongers itself is
torture. Now, imagine having to relive those memories every single day of your
life. What if the episode was captured on video and posted on the internet for all
to see? What if time and again the video was shared with you? If you have
encountered a nauseating emotion of extreme agony and revulsion, then imagine
the plight of the family of Vithya Sivaloganathan.

Background

The following information is factual and was obtained from a close relative of
Vithya Sivaloganathan, who wished to remain anonymous, a few days after the
incident. It was 7:00 in the morning on 13 May 2015 when 18-year-old Vithya
Sivaloganathan had left home. Clad in her school uniform, she set out to
Pungudithivu Maha Vidyalayam, where she schooled. Her journey took her
through a small secluded pathway that led to the Aaladi Junction. However, on
that fateful day, she never reached school, nor was she seen anywhere nearby.
She did not return home after school either.

Her parents began to get nervous, and by 3:00 in the evening, her brother
Nishanthan had begun enquiring about her whereabouts. Vithya's family joined
shortly afterwards. By 6:00 in the evening, a complaint was lodged at the closest
Police Station, but the Police had been uncooperative. The Police had allegedly
hinted that Vithya may have eloped with somebody.

That night it rained heavily, however, the family could not stay indoors. They
pursued their quest to look for clues. At dawn, Vithya's pet dog returned to
Nishanthan with her shoes, and he wasted no time following the dog to the
location. He traversed through the narrow secluded pathway that led to the
Aaladi Junction. There was only shrubbery and grass on either side, and then he
saw her.
Vithya was found stark naked. Her hands and legs were tied using the ribbons
from her school uniform. Her body had been heavily mutilated, and her skin tone
had changed. Her breasts had been brutally ripped off her body, reportedly using
a blunt knife. She had been forced to swallow her undergarments which were
found inside her body, close to her chest. It appeared she had suffocated to
death.

The Police arrived only at daylight, and by then, the people had gathered around
Vithya's untouched corpse, some of whom had snapped grotesque images of the
scenes and uploaded them onto the internet. The people had also begun agitating
over the lack of interest displayed by the Police, and the Police sprang into action.
Police dogs were used to trace three of the suspects after locating pieces of
Vithya's torn breasts, and through them, another five suspects were identified.
The five suspects had attempted to flee the country, but the people of Jaffna
rounded them up and handed them over to the Police.

A suspect by the name of Mahalingam Shashikumar also known by his alias Swiss
Kumar, who is said to have spearheaded the conspiracy, too had attempted to
flee the country by using some of his political connections, but the people of
Jaffna had valiantly intervened and prevented his escape. The Police had
eventually arrested a total of 12 persons, and filed indictment charges against
nine of them including Swiss Kumar. The other suspects were P. Indrakumar also
known as Sinnaraja, P. Vijayakumar also known as Ravi, P. Thawakkumar also
known as Sendil, Mahalingam Shashidaran also known as Shashi, T. Chandrakanth
also known as Chandra, Sivadevan Kushanthan also known as Periyathambi, P.R.
Kuganathan also known as Sishanthan and Jayadaran Kokilan also known as Karu.

Recent Updates

The accused have since been presented before Courts and remanded, and
investigations continued. More recently, newly appointed Chief Justice, Priyasath
Depp had appointed a three Judge trial at bar to hear the trial of Vithya. It was the
first of its kind to be held in the Jaffna High Court. The three Judge bench
comprised of High Court Judges Sasi Mahendran, M. Ellencheliyan, and A.
Premashankar.

Three months after the case commenced, Police continued to hear the
testimonies of the Defendants and more information had unravelled. A State
witness by the name of Udayasuriyan Sureshkaran testified in Courts that
Sivadevan Kushanthan also known as Periyathambi had paid P. Vijayakumar also
known as Ravi a sum of Rs 23,000 to abduct the girl three months prior to the
incident.

According to Sureshkaran, Periyathambi had been following the girl for three
months and on a certain occasion made a confession of love to Vithya, at which
point, Vithya had slapped him with a slipper. Thereafter, Vithya had avoided
responding to Periyathambi completely. In addition to this, the Attorney General's
Department team led by Additional Solicitor General, Dappula de Livera revealed
to Courts that the ordeal was conspired prior to the abduction, rape, and murder.
The intention of the suspects was to record Vithya being sexually abused and
gang raped and to sell it as pornographic material, Dappula de Livera had also
revealed.

Additional Solicitor General, Dappula de Livera further claimed that there was an
international racket involving the sale of real life rape porn in South Asia, and
such a video would have raked in large sums of money. However, although
Dappula de Livera had claimed there was evidence to indicate an intention to sell
the video as pornographic material, the video in question had not been
discovered.
The Responsibility of the TRCSL

Whether or not the video had been deleted, or if it will eventually be discovered
and presented as evidence, what is most frightening is the claim that there is a
demand for rape porn. The rape porn industry is an emerging trend in South Asia,
and there appears to be a great demand for it in India. Research into the matter
has revealed that there are actual Indian pornographic sites on the internet
catering specifically to this category of pornography. Although no figures have
been gathered yet, the existence of such websites on the internet itself is rather
disturbing. No efforts have been made to block such websites in Sri Lanka and this
is even more disturbing.

The Sri Lanka Telecommunications Act, as amended by Act No. 27 of 1996, set up
the Telecommunication Regulatory Commission of Sri Lanka (TRCSL), which is
empowered by the Act to deal with such situations. The objectives of the TRCSL
are specified in Section 4 of the Act. Sections 4 (c) reads: "to protect and promote
the interests of consumers, purchasers, and other users and the public interest
with respect to the charges for, and the quality and variety of telecommunication
services provided and telecommunication apparatus supplied."

According to the above provision, the TRCSL is expected to monitor the flow of
information and ensure the restriction of accessibility of such rape related
pornographic material for the protection of public morality and promotion of
public safety. If that state run body does not restrict such websites, the increased
access to such web portals will increase the demand for such rape porn in the
international arena. The value of the material will then increase, which means
there will be a sharp increase in the number of incidents related to sexual
misconduct and violence against women and children, both locally and
internationally.

Implications for Women and Children

The crime of rape and human trafficking are surprisingly common all over the
world. While some of the victims are men, women and children have also been
targeted. The crime of rape is an extremely detestable crime and the suspect, if
convicted, can end up with a life sentence. It is detestable because it causes
immense psychological trauma and can have a lasting impact on each of the
victims of the crime, and their loved ones. In such circumstances, imagine the
plight of a victim who is sexually abused, humiliated,dehumanized, and then
shamed publically. Since pictures and videos that are uploaded onto the internet
stay on the internet almost indefinitely, the victims and their families are
constantly reminded of the traumatic event that took place and this can hinder
the healing process.

It is also imperative to note that Sri Lanka has ratified the United Nations
Convention against Transnational Organized Crime and Palermo Protocol to
Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and
Children (2000). Sri Lanka has been a signatory to this Convention from 13
December 2010 and has enacted many provisions to effectuate the Convention.
Article 27 (13) of the Sri Lankan Constitution compels the State to protect
children, and Article 12 (4) requires the State to take action to ensure protection
of women and children.

Despite these measures, it is a proven fact that enforcement mechanisms are

lacklustre. Even the due process requires time, and very often, the victims find
themselves facing untold predicaments at the hands of the perpetrators. Victims
and their families are usually further victimized until and unless the cases are
withdrawn, and for this reason, many of the victims refuse to make formal
complaints. Though disgruntled, they generally choose to live with the agony
rather than worsen the effects by making a formal complaint. If this is the plight
of rape victims and their families, what would be the plight of the victims of rape
pornography, which has been captured on video camera, and uploaded onto the
internet for the whole world to see?

State Action

There is no specific provision to deal with pornographic content on the internet.

Pornography is generally dealt with in accordance with offences included in the
Penal Code of Sri Lanka and the Obscene Publications Ordinance of 1927. Trading,
producing, distributing, or exhibiting any obscene photographs or
cinematographic films will be viewed as an offence under the Obscene
Publications Ordinance. Yet the punishment is a term of imprisonment not
exceeding six months and a fine not exceeding Rs 5,000.

The crimes of abduction, rape, and murder are all considered serious crimes
under the Penal Code, but the Penal Code does not deal with the additional issue
of videography. The TRCSL can be of enormous help, but the mandate provided to
it is limited. During the period of the previous regime, there had been stringent
enforcement mechanisms to restrict access to pornographic websites.

However, newer pornographic websites emerge on the internet at an alarming

rate, and it is fairly challenging to keep track and restrict access to each new
website. The current regime announced in March that fresh legislation will be
introduced to prevent exploitation of children, and to safeguard children from
exposure to pornographic material. Comments were also made about the
inadequacy of laws and the archaic nature of the Obscene Publications Ordinance,
however, no measures have been implemented thus far.

Conclusion

The issue of the emerging rape porn industry is a threat to men, women, and
children. It must be distinguished from general pornography where there is
consent. Non-consensual publication of pornography is also another area that
needs to be dealt with.

When rape alone is a major criminal offence, videoing the crime and making it
viewable to the entire world is the worst type of torture for any victim who
survives such an incident. If the victim is murdered, like in the case of Vithya
Sivaloganathan, the family members of the deceased are traumatized for the rest
of their living days. The country is in urgent need of legislation to address this
specific issue. Although human trafficking is already considered a transnational
organized crime, it is imperative that rape porn should also be considered as a
transnational organized crime. Countries must nip this issue in the bud before
things get out of hand. South Asian countries in particular need to address this
issue fast.

Sri Lanka is also a member of the SAARC Convention on Preventing and

Combating Trafficking in Women and Children for Prostitution 2002. The scope of
this Convention is to promote cooperation amongst member States to effectively
deal with various aspects of prevention, interdiction, and suppression of
trafficking in women and children among other things. It is mandatory that SAARC
comes together to combat rape porn, which can also lead to human trafficking in
the long run. It is sincerely hoped that the Sri Lankan Government will act on this
issue and develop a model to combat rape pornography, especially on the
internet, and set an example to the rest of the world.
(The writer is a law tutor and an independent researcher of laws. He holds a
postgraduate degree in the field of human rights and democratization from the
University of Colombo and an undergraduate degree in Law from the University of
Northumbria, United Kingdom)
(faizer@live.com)
Posted by Thavam