With the dead body of five year old Seya Sadewmi being discovered in a patch of bushes near a small stream in Kotadeniyawa, several social discourses have come to limelight. Primarily, there seems to be a push from the society for the reimplementation of the death penalty. Secondarily, there is the issue of the media, pardon the expression, overstepping the boundaries of their freedom of expression. Thirdly, there is the usual scenario of those attempting to fish in troubled waters. In addition to these three issues, I have also observed in numerous videos, how the crime scene is being contaminated by those who rush in without any care in the world as to whether they will be destroying valuable evidence pertaining to the crime. These issues demand analysis and in the following passages, I express my opinions of the same. This piece is not about the innocent dead child, but about the problems arising from the social discourse pertaining to her death.
Judging by the fact that a lot of controversy has arisen on and around Article 9 of the Sri Lankan constitution, which gives ‘foremost place’ to ‘protect’ and ‘foster’ Buddha Sasana, it is surprising to see how many are willing to easily depart from the first precept of the five precepts by advocating the reimplementation of the death penalty. As was aptly and sarcastically stated by Mr. Thishya Weragoda (young, dynamic Attorney – at – Law) for the protection of the ‘dharmadweepaya‘ we seem to be in need of a hangman and a noose. According to what little I know of Buddhism, one needs to inculcate in oneself ‘sīla’ as a foundation to follow dhamma. The moment that one strays beyond the five basic precepts, it is questionable whether their so-called devotion to Buddhism is one of ‘shraddā’ or of ‘amulikā shraddā’. Moreover, it is necessary to ascertain whether the taking of a life, which is to do with the ‘an eye for an eye’ approach, or what we call lex talionis in Roman law, can really help to deter, rehabilitate the society and is of any utilitarian value. I am of the view that it only amounts to revenge. If it is of utilitarian value as one can gain a pleasure out of the revengeful happiness that one gains from the murderer being put to death, then we have to reassess where we stand as ‘decent’ human beings.
As there is a social dialogue in relation to the reimplementation of the death penalty, it is important that one refers to countries with such laws to ascertain whether their crime rates are lower. Some expressing views on social media argued that crime rates can be reduced by the introduction of stricter penalties as in Saudi Arabia. While it is true that certain countries such as Saudi Arabia, Afghanistan, Iran and China have strict penalties against rapists, these countries seem to be avoiding the maintenance of an official database containing statistics of such crimes. However, other sources indicate that rapes go unreported in these countries due to various reasons such as honour killings, victim shaming and strict requirements of burden of proof (see this, this, and this). This poses the question whether stricter laws necessarily reduce crime rates.
According to Article 1 of Law of Criminal Procedure in Saudi Arabia, ‘court shall apply Shari’ah principles, as derived from the Qur’an and Sunnah’. The interpretation of Shari’ah principles pertaining to rape in Saudi Arabia is that the perpetrator be executed through the act of throwing stones at him (See Elizabeth Peiffer, ‘The Death Penalty in Traditional Islamic Law as Interpreted in Saudi Arabia and Nigeria’  William and Mary Journal of Women and the Law 507). However, it is questionable whether women and children are protected from this punishment as traditionally perpetrator’s evidence is used to ascertain his guilt and the rape victim is expected to bring in testimonies of four witnesses in order to fulfil the requirements of her burden of proof. It is amusing to think that a perpetrator would first invite four witnesses to observe his crime so that it later becomes easier for the victim to satisfy requirements of burden of proof. However, some argue that this is a common misconception pertaining to An-Nur 24:5 of the Qur’an which states that those who accuse chaste women of unfaithfulness are required to bring four witnesses to prove their claim or else suffer eighty lashes for the immorality that they have performed. The argument is that this requirement has no connection whatsoever to do with rape.
Irrespective of the legal situation in Saudi Arabia, attention needs to be paid to the practical implementation of their laws as well. There was an equally powerful social discourse regarding the Saudi Arabian court which sentenced the 19 year old gang rape victim to receive 200 lashes for violating the norm of being accompanied by a male at all times in public. It is hence possible to state that the mere existence of stricter laws would not bring about justice.
According to Section 427 (2) of the Afghan Penal Code, in cases of aggravated forms of sexual violence, the perpetrator may be sentenced to death or long imprisonments. Amnesty International records that 240 cases of honour killings have been reported in Afghanistan despite the existence of strict laws. Moreover, the number of rapes reported is considered to be much lower than the actual incidents just as in Saudi Arabia due to the honour killings to which victims are subjected.
Iran and China are also nations where the death penalty is imposed on those convicted of rape. China, as per Article 139 of its Criminal Law, contains punishments varying from an imprisonment of three years to death penalty depending on the gravity of the crime that has been committed on the victim. Iran shares certain similarities with the facts that have already been recorded in this piece in relation to Saudi Arabia and Afghanistan.
It is not surprising to note that sites comparing rape statistics of the world do not often contain statistics of countries in question due to the sole reason of such statistics being officially unavailable. In that light, there is no wonder that these countries with higher penalties and higher non-reporting rates of rapes do not make the list of nations with the highest rapes of the world. It is hence clear that a mere reimplementation of the death penalty will have no bearing on the reduction of rapes in Sri Lanka. If crime and deterrence went hand in hand, there should be no crimes at all in Saudi Arabia where there are brutal, inhumane punishments against offenders.
Even if one does support the death penalty in relation to serious crimes, it is also necessary to think of instances of injustices that can be so brought about. It was reported in December 2014 in Mail Online that a Chinese man who was executed on a conviction of rape and murder nearly two decades ago has later been declared innocent. The irreversibility of death penalty poses this problem especially because justice does not always take place merely due to the existence of law. I beg to ask those who propose the death penalty whether they are willing to take on the responsibility of the death of an innocent individual in case an executed prisoner is later found to be innocent. All I know is that I do not want blood on my hands and therefore that I abstain from proposing that the death penalty being reinforced.
The second issue pertaining to the 5 year old girl’s death is the proliferation of sites and media outlets posting pictures and videos of her dead body. It is also ironical that the National Child Protection Authority of Sri Lanka which has been incapable of preventing crimes against children, cautioned the public against posting such videos and pictures. According to currently available data, in 2011, a total of 1463 rapes committed against children have been reported in Sri Lanka. In that light, I am not exactly certain as to how prevention of publication of crime victims’ photos and videos alone is expected to do justice to Seya and other victims although I agree that the media has overstepped its boundaries in using her pictures, perhaps to gain more views. This calls in to question the extent of media freedom that should exist in a country. While the media should publish news of crimes with the expectation of having an impact on the society whereby people are made aware of both how to abstain from committing crimes and also to educate them of how to be safe from crimes, it is questionable whether it is necessary to publish pictures of a sexually abused infant in order to do that. This is one aspect of fishing in troubled waters.
Secondly, a dialogue that I observed on social media also indicated that bringing of Shari’ah legal penalties for those who commit such barbaric crimes would deter perpetrators and put an end to crimes against women and children. I personally observed this soon escalating to a dialogue on whether Islamic law is superior or the penalties that existed during the ‘ time of the Sinhalese Kings’ are superior. This is the second aspect of seeing opportunity in calamity. According to the facts that I have portrayed above regarding nations with severe penalties for crimes, there does not appear to be a correlation between the increase of penalty and the decrease of crimes. In fact, there is no official data even suggesting that crimes are lower in nations with higher penalties or the death penalty. Accordingly, I am only left with a feeling of bitterness in my head against those who want to exploit this tragic incident to bring to the core a conversation as regards which extremist interpretation of law is superior.
The other issue of importance with regard to all crimes, that do not however seem to initiate sufficient dialogue in social media, is the importance of preventing crime scene contamination. It needs no mentioning that evidence is of great importance in a criminal matter and every piece of evidence that can be gained from the body of the victim, the crime scene and the surrounding areas of the crime scene are of utmost importance. Section 114 of the Code of Criminal Procedure of Sri Lanka states that the accused should be released if there is an insufficiency of evidence, and the relevant authority fails to justify the accused being produced in a court of law. Moreover, Section 370 requires an inquirer to proceed to the place of crime when the person has died of unknown causes. This requirement is in place to allow finding of more pieces of evidence from the crime scene. If not for this law, it would be convenient to demand that the dead body be brought to the inquirer in order to carry out the investigation. This highlights the importance of not contaminating the crime scene and keeping it as untouched as possible until it is subject to the inquirer’s investigation. It is important to not move or change the position of the dead body as the posture may also contain evidences as regards the cause of death. For instance, in most cases of asphyxia the cause of death is easily ascertainable if the posture of the corpse is not subsequently changed by someone who comes to the crime scene. Cordoning off of the crime scene is extremely important. However, in Seya Sadewmini’s incident, anyone who watched news videos could have observed how crowds of people came to the crime scene, thus, perhaps destroying a multitude of valuable evidence that could have been gained from the scene of the crime. Such contamination could erase traces of foot prints etc belonging to the perpetrator which could be of extreme importance in identifying the culprit.
While the impact of social media on law, governance, justice and freedom is commendable, incidents of this nature may also indicate a negative aspect. Overpublicizing certain news elements merely for personal gains, prove to be extremely harmful to the cause at hand and may also cause unspeakable misery to those connected with the incident. It is time to rethink whether the introduction of harsher laws in the absence of mechanisms to raise awareness in the society is useful and effective as a tool of crime prevention. It is also time for people to learn to abstain from crime scene contamination. Moreover, those who are good at promoting self-serving agendas using any and every platform better rethink and reformulate their notion of decency.