The Legal and Judicial Construction of Gender in Sexual Crimes in Sri Lanka

Abstract

The core values of equality, impartiality, and justice underlie the legal system. This study interrogates the extent to which these values are protected in the statutes and case law on sexual violence, specifically, rape, grave sexual abuse, and sexual harassment in Sri Lanka through an examination of how the relevant substantive and evidentiary laws, as well as judgments delivered by the Superior Courts on sexual crimes during the period 2020-2021 constructs gender. This study utilises Critical Discourse Analysis as a methodological framework and frames the findings on the legal and judicial construction of gender through Judith Butler’s discourse theory of gender performativity. The study argues that the law constructs a binary understanding of gender, and only recognises violence that is inflicted on specific bodies. The study further challenges the perceived neutrality of evidence laws by demonstrating how gendered presumptions and gender-based stereotypes underlie laws on character evidence and credibility. The study further argues that gendered presumptions underlie the judicial evaluation of the evidentiary principles of corroboration, and prompt complaint, while there is some evidence of the Superior Courts of Sri Lanka making progressive strides gender-sensitive evaluation of witness credibility. Therefore, several recommendations are made at three levels: ministerial, judicial, and legal, to guarantee the constitutional right to equality through legal reform, enhance judicial capacity for gender-sensitive judicial reasoning through training, and ensure gender-sensitive legal representation in Court.