by Kalyananda Tiranagama
Lawyers for human rights and development
The Ministry of Justice published in the Official Gazette on December 24, 2021 the Prohibition of Obscene Publications Bill aimed at prohibiting the publication, distribution, sale, import and export of any material, object or obscene thing. The bill was to be enacted to combat child pornography as well as protect those who face harassment and exploitation due to the lack of strong laws to deal with offenders.
The word “obscene” was described in the bill as “any matter, object or thing which, by itself or when comprising more than one distinct element taken in isolation, is sufficient to deprave and corrupt the mind of a reasonable person, but does not include any matter, object or thing containing anything done in the interests of science, literature, art, education or learning”.
As the press reported, in a dramatic turn of events, the bill was withdrawn by the Minister of Justice just 48 hours after it was published. The ministry secretary said the decision to withdraw the bill was taken due to concerns expressed by civil society activists and other stakeholders, who opposed the bill on several grounds, including Copyright. An amended bill will be presented to Cabinet for approval, once discussions have taken place with interested parties, including the BASL.
This is a long overdue amendment. To combat the growing sexual abuse of women and children, there is an urgent need to strengthen the law against obscene publications.
Looking at police statistics on sexual offenses against women and children over the past 25 years, it is clear that there has been a steady increase in the number of sexual offenses against women and children.
There are a large number of obscene and pornographic publications distributed in our country. There is no doubt that the pornographic and obscene material readily available in our society has greatly contributed to the continued increase in the number of sexual offenses against women and children across the country.
Soft pornographic material displayed openly and freely available throughout the country is more harmful than hard pornographic publications which have a very limited circulation, being blatantly illegal and disseminated by stealth.
Much of the material contained in soft pornographic publications will have a long term destructive effect on the reader, corrupting their mind and degrading their character. Anyone, including children, can easily access it.
Soft pornographic posts may have the effect of: a. Corrupt the minds of those who read them; b. Destroy the moral basis of society; vs. Encourage children to have sex prematurely; D. Promote the sexual abuse of women and children; e. Promoting perverse sexual habits; and F. Promote prostitution.
Existing Obscene Publications Act
The legal provisions relating to obscene publications in Sri Lanka are contained in sections 285 and 286 of the Penal Code and in the Obscene Publications Ordinance No. 4 of 1927 as amended by Act No. 22 of 1983. Two new sections – S. 286A and S.360B. were introduced by the 1995 amendment to the Penal Code. While Sections 285 and 286 deal with the printing, importation, distribution, sale and possession of obscene publications generally, Sections 286A and 360B deal with the use, use or permission of children to appear or perform in obscene or indecent exhibits, performances or photographs.
A. Provisions of the Penal Code:
285. Whoever sells or distributes, imports or prints for sale or hire, or voluntarily exposes to public view, any book, pamphlet, drawing on paper, painting, photograph, representation or figure which is obscene or attempts or offers to do so shall be punished with imprisonment for up to three months or a fine or both.
Art. 286. Whoever has in his possession such a book or other obscene object referred to in the last preceding article shall be punished with imprisonment for up to three months or a fine, or both.
S. 286A (1) Any person who –
engages, employs, assists, persuades, uses, incites or coerces any child to appear or perform in an obscene or indecent exhibition or performance or to pose or model or appear in an obscene or indecent photograph or film or sells or distributes, or otherwise publishes, or has in its possession, such photograph or film; Where
being a parent, guardian or person having custody of a child, obliges or permits that child to be employed or to participate in an obscene or indecent exhibition or performance or to pose or model for or appear in any obscene or indecent photograph or film as referred to in paragraph (a);
takes or assists in taking indecent photographs of a child; Where
distributes or shows such photograph or any publication containing such photograph;
has in its possession for distribution or exhibition, such photograph or publication;
publishes or causes to be published, such photograph or publishes or causes to be published, any advertisement likely to convey the message that the advertiser or the person named in the advertisement is distributing or displaying such photograph or any publication or intends to do so –
commits the offense of obscene publication and exhibition relating to children and shall, on conviction, be punished by imprisonment for not less than two years and not more than ten years and may also be punished by a fine.
In this section – “child” means a person under the age of eighteen; and “film” includes “any form of video recording”.
S. 360B (1) Anyone –
knowingly permits any child to remain on any premises, for the purpose of causing that child to be sexually abused or to participate in any form of sexual activity or any obscene or indecent display or performance;
acts as a procurer of a child for the purpose of sexual intercourse or for any form of sexual abuse;
incites a person to be the client of a child for sexual intercourse or for any form of sexual abuse, by means of the written press or other media, oral advertisements or other similar means;
takes advantage of his influence over, or his relationship with, a child, to procure that child for sexual intercourse or for any form of sexual abuse;
threatens or uses violence against a child to procure sexual intercourse or any form of sexual abuse;
gives monetary consideration, goods or other advantages to a child or his or her parents with the intention of procuring that child for sexual intercourse or for any form of sexual abuse, – commits the offense of “sexual exploitation of children” and shall be punished with imprisonment on conviction of either description for a term not less than five years and not more than twenty years and may also be punished by a fine.
B. Provisions of the Obscene Publications Ordinance
S. 2 Is a breach of this Ordinance punishable on conviction by a magistrate –
for the first offence, with a fine not exceeding two thousand rupees (one thousand rupees before the amendment (1983)) or imprisonment of either description for a term not exceeding six months (three months before the amendment), or with both such fine and imprisonment; and
for a subsequent offense committed after conviction for the first offence, to imprisonment for a term not exceeding six months and further to a fine not exceeding two thousand rupees, for committing any of the following acts, namely:
for commercial purposes or for the purpose of trade or distribution or public display to make or produce or hold for any purpose stated or otherwise, any writings, designs, prints, paintings, prints, pictures, obscene posters, emblems, photographs, motion pictures, video tapes or any other obscene object;
for the purposes aforesaid, to import, transport or export or cause to be imported, transported or exported any of the said obscene materials or things, or to put them into circulation in any way whatsoever;
to carry on or take part in any business, public or private, relating to any of the said obscene matters or things, or to deal in any way with the said matters or things, or to distribute or exhibit them publicly or make a deal out of lending them;
to announce or make known by any means whatsoever, with a view to aiding the said traffic or punishable traffic, that a person is engaging in any of the above punishable acts, or to announce or make know how or from whom said obscene things or things may be purchased directly or indirectly.
(To be continued)