EFFECT
OF WRONGFUL CONVICTION FOR SEXUAL OFFENCES IN SRI LANKA

–      A
case study with special reference to people who have been wrongfully convicted
for sexual offences in judicial zone of Gampaha.

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Name                                 : Siyapath
Sasindu Wickramarathne

Registration
No.                :

Programme                        : Master of Laws in Criminal Justice
Administration

                                            Department of Legal Studies

                                            Faculty of Humanities and Social Sciences

                                            The Open University of Sri Lanka

                                            January 2018

 

INTRODUCTION

 

“All presumptive evidence of felony should be
admitted cautiously; for the law holds it better that ten guilty persons
escape, than that one innocent party suffer” 1

 

Accusations of serious criminality, especially
alleged sexual wrongdoing, are often their own convictions in the high court of
public opinion because the stigma is so severe, and because definitively
proving innocence in a disputed sex case often is impossible.

–     
 (COTWA homepage)2

 

It
is difficult to imagine a greater injustice than to convict and send an
innocent person to prison. Indeed, the haunting menace of a man wrongfully
charged, convicted, and sentenced has long been part of the Sri Lankan consciousness.

 

Liberty
is the fundamental right of every democratic citizen. Wrongful conviction,
convicting a person of a crime he or she did not commit, violates
this basic right. The existence of wrongful convictions generates a number of
different concerns, such as the failure of due process, the limitations of the
adversarial approach, the legitimacy of the current justice system3 and the aforementioned
violation of human rights.

 

For
the purpose of this research, the term wrongful conviction is defined as a case
in which a government entity has determined that the originally convicted
individual factually did not commit the crime. The term exoneration refers to
the process by which a government body, by way of a pardon or judicial order,
concedes that a convicted person is indeed innocent.

 

Both
common law and the Human Rights Act assert the right to be considered innocent
until proven guilty, and the present research is focused on those who are
legally innocent. Either they have not been charged; or charged but not
prosecuted; or they have been prosecuted but were acquitted by a judge or jury
or they were convicted but later had their conviction quashed by the Court of
Appeal.

 

A
false accusation and/ or wrongful conviction of sexual abuse occurs more often
than most people would expect. Causes for false accusations are mostly
intentional, and otherwise erroneous. Responses to alleged sexual offences or
other physical abuse are prone to error in the absence of witnesses other than
the complainant or corroborative forensic evidence. In cases where there is no
such corroboration, police and prosecutors’ decisions about the veracity of
statements made by the accuser and the accused are likely to be influenced by
the prevailing cultural discourse and consequent presumptions about sexual
predators and their alleged victims.

 

 It is often argued that wrongful could have
severe consequences for the wrongly convicted person on several aspects. There is,
however, a lack of good research on the consequences of wrongful convictions
sexual offences. In order to close the gap in scientific literature, the
current study is focused on the effects of wrongful convictions for sexual offences
on several aspects (social, personal, and economic) of someone’s life.

 

This
research examines some long-term effects of a wrongful conviction for sexual
offence on individuals and their families both during imprisonment and
following their release. Finally, government responses to the issue are
discussed, illustrating their limitations and their relevance for criminal
justice policy and practice.

 

 

 

 

 

 

PROBLEM
STATEMENT

 

Research
on this area indicates that there is a paucity of good research about the effects
of wrongful convictions for sexual offences. Considering this gap in
literature, the current study is focused on the effects of wrongful conviction for
a sexual offence.

The
research is focused on the consequences on the social (how do family and
friends react; relationships; support from family, friends and others; coping),
personal (psychological consequences such as depression; stress; self-competence;
influence feelings and affect; and physical health), and economical (finding a
job, financial situation) effects on an individual’s life who has been wrongfully
convicted for a sexual offence. . This leads to the following research
question: what are the effects of being wrongfully convicted for sexual offence,
looking at social, personal and economical aspects of life?

 

RESEARCH
QUESTIONS

 

1.           
What is a wrongful conviction?

 

2.           
What results in wrongful conviction of
sexual offences? / Causes of wrongful conviction for sexual offence?

 

3.           
What is the physiological and/or
psychological effect of an individual and/or their families who has been
wrongfully convicted for sexual offence?

 

4.           
What are the current methods available to
curb wrongful convictions for sexual offences?

 

 

 

 

 

OBJECTIVES

Audi
partem alteram (‘Hear the other side’; sometimes expressed as ‘Let the other
side be heard as well’)4

In
a society which has made so much progress in addressing the needs of victims
and in taking account of their perspective, those who have been wrongfully
convicted for sexual offences sometimes see themselves as the forgotten victims.
They feel disregarded, their partners and children left to suffer the humiliation
alone. This qualitative study of people’s experiences of being wrongfully
convicted for sexual offences aims to give a voice to these other victims, by
way of a content analysis of first person accounts.

As
noted in the literature review, there has been minimal research specifically
addressing the impact of wrongful conviction for a sexual offence.  It appears that claims of innocence following a
wrongful conviction for sexual offence are less likely to be believed. Indeed,
questioning the veracity of allegations is seen by some as a betrayal of the
victim or ‘adding insult to injury’. Further, unless the suspect has a cast
iron defense or there is irrefutable forensic evidence to show the claim is
false, there is an inherent difficulty in establishing innocence.

In
so far as there may be tension between competing claims, concern to provide
justice for victims of sexual harassment seems to trump concern for avoiding
wrongful convictions of sexual offences.

The
main purpose of my research therefore is to gain understanding of and share
insight into the human costs of wrongful convictions for sexual offences, by
collecting new narrative material and reviewing existing accounts. While
victims of abuse are increasingly given a platform and encouraged to talk about
what happened to them, people who are wrongly convicted are discouraged from
speaking out, because they are not believed or because they are seen as harming
victims of abuse by detracting from their credibility and their confidence to
report offences. Thus, the purpose of my research is to start a conversation
about the impact of being wrongly convicted for sexual offences, including the
social, economic and psychological consequences, and the effects on families of
the accused.

 

LITERATURE
REVIEW

 

Wrongful
criminal convictions for sexual offences have come to the attention of the
public and the criminal justice community in Sri Lanka in recent decades.

 

Miscarriages
of justice, whether by error or malfeasance, have thus become a recognized
feature of the system. The reasons for miscarriages of justice are multifarious.
Some of the factors which can contribute to the conviction of an innocent
person for a sexual offence can include: confirmatory bias in police and
prosecution investigations, non-disclosure of exculpatory evidence, false
confessions, dishonest or mistaken witnesses, inadequate legal defense,
improper interventions or summing up by a judge; cognitive biases and
prejudices of juries, and the influence of media reports and populist opinion
on the decisions made by juries.

 

There
can be little doubt that accused persons will suffer to some degree when
accusations of such sexual offences are made that cannot be readily refuted.
The effects will obviously vary with the extent to which investigations and the
criminal process develops, and also the nature of the alleged sexual offence.

 

A
great deal of research on wrongful convictions has tended to focus on the many
systemic factors that contribute to these miscarriages of justice in Sri Lankan
context.  Although this is highly
important, little has been written from the perception of the wrongly convicted
for sexual offences.  While some research
have examined the experiences of the wrongly convicted from a psychological
standpoint, no research to date has examined how wrongly convicted persons for a
sexual offence experience, define, and cope with such wrongful conviction and
the effect of such wrongful conviction for sexual offence on them and their
families.

 

Given
the limited research on effect on individuals who have been wrongfully convicted
for sexual offences, the following literature review also refers to broader
research on individual experiences of wrongful charges and convictions for
sexual offences, and in general, the effects of criminal labelling, stigma and
imprisonment which have some bearing on the present research. It can be assumed
that such an accusation or a conviction for a sexual offence would be shocking
and traumatic for an innocent person. Those wrongfully convicted will face
punitive consequences, but those not prosecuted will also experience the stain
of suspicion.

 

DATA

Two
type of data will be used in order to collect the requite data for the purpose
of this research, namely primary data and secondary data.

 

Primary
Data

Following
a review of the relevant literature, the empirical methods comprise in-depth
interviews with victims of wrongful convictions for sexual offence in the
judicial zone of Gampaha and their families or, if the individuals preferred,
guided written accounts. Information that will be offered as a supplement to
the interviews or written accounts, such as legal documents, additional
statements and correspondence, will be included as submissions.  

In
addition to interviews with, and accounts provided by, those wrongfully convicted
for sexual offences, the study aimed to give a voice to those family members
who have supported them throughout in order to better understand the collateral
damage of a false conviction. The objective is to interview or collect written
accounts from approximately 30 wrongfully convicted people for sexual offences
living in the judicial zone of Gampaha, and also some of their relatives or
supporters in cases where this is appropriate, thus collating up to 40
interviews or accounts in total.

Topics
in the interviews, written accounts and the focus group focused on the
wide-ranging effects of false convictions for sexual offences, from the harm
done to their employment prospects, to their finances, to their physical and
mental health, to the effects felt by family members, to their own self-concept
and reputation, beliefs and outlooks, as well as their wider relationships with
friends and their community. The participants will also be asked about the
support they received, if any.

 

Secondary
Data

The
secondary data will be collected using text books, journal articles, magazines,
websites, encyclopedia and case law material.  

.

METHODOLOGY

 

Procedure

The
data is planned to be collected by victims who reside in the judicial zone of
Gampaha who have been wrongfully convicted for sexual offences, their relatives
and family members, officials and professionals. The potential participants will
be approached by telephone contact to obtain their consent to participate in
this research project.

Upon
receiving their consent the participants will be asked to sign a document of
consent in which it will be emphasized that the research is voluntary and anonymous.
By signing the document of consent, the participants give permission that the
results of the questionnaires would be used for scientific research. The
participants will be informed that they could stop at any time during the
assessment, and the data that was already collected would be destroyed.

Participants
who agree to participate in the research will be given a questionnaire. When
participants complete the questionnaires they will be asked to participate in a
face-to face interview.

During
the interview, the participant will be given a chance to speak freely about
anything, and they will be assured that there would be no judgement about what
was told during the interview.

After
this the participant will be given a chance to indicate if some parts of my
interview should not be used for the research study, if they do not feel
comfortable. The interviews will mainly be conducted in Sinhala Language as it
is the native language of most of the people in Sri Lanka. However, in cases
where a participant in not well conversant in the language of Sinhala,
interview can also be conducted in English language.

 

Material

For
the current study quantitative data will be collected, in order to give insight
into the social, psychological and economic effects of the wrongful convictions
for sexual offences.

The
questionnaire will be designed with several parts: demographic and features of
the wrongful convictions; personality, feelings and thoughts, feelings and
behaviour, physical complaints, social support, social rejection, and society.
The questionnaire will consist of closed-ended questions and some open-ended
question, to give the possibility to elaborate on the given answer.

To
gain insight in the social aspects of someone’s life the parts demographics and
features of the wrongful convictions, social support, social rejection and
society will be used.

To
gain insight in the personal aspects of someone’s life the demographics and
features of the wrongful convictions, feeling and thoughts and feelings and behavior
will be used.

For
the economic aspects the demographic part and the open questions will be used.

The
aim of the study will be to assess at the direct consequences of wrongful
convictions for sexual offences in several aspects of someone’s life.

 

·        
Demographics and features of the
false accusations.

 

This part of the
questionnaire will consist of several questions about someone’s age, gender,
work, educational level, marital status and if this changed during or
afterwards the wrongful convictions for sexual offence. In addition,
participants will also be asked to self-assess their experience about features
of wrongful convictions for sexual offences.

 

Besides these questions attention will
also be paid to the subject of media influence, financial and employment situation,
social network, psychological and physical health, which will be asked using open
ended questions. In these questions participants are provided with an
opportunity to indicate in which way the wrongful conviction for sexual offence
influenced a certain aspect of their life. The answers on the open ended
questions will be used to support the answers given on other parts of the
questionnaire.

 

·        
Social aspects

 

To measure the influence
of the social aspect on someone’s life questions will be asked to measure
social support from friends, family, and significant others. The questionnaire will
consist of items and the items will be scored on a 7 point Likert scale,
ranging from 1 “very strongly disagree” to 7 “very strongly agree”.

Participants will be
asked to indicate their feelings in general by the statements. Examples of
items are ‘My family really tries to help me’ or ‘I can count on my friends
when something goes wrong’.

 

Questions will also be
asked to measure feelings of rejection and perceived stigma. These questions
will consist of items for which the answer options will be “Yes” or “No”. An
example of an item is ‘After people found out that I was (wrongfully) convicted
of sexual offence, they avoided me’.

 

Questions will also be
asked to assess the ‘Society’ part. The questions will be designed to assess
‘Goal disruption, powerlessness, mastery, interaction anxiousness, personal
self-esteem, and collective self-esteem’. The items will be designed on a five
point Likert-scale ranging from 1 “totally agree” to 5 “totally disagree”. Examples
of items are ‘People in the society seem to be scared of me’ or ‘I am generally
treated as an object, rather than as a person’.

 

·        
Personal aspects

 

To
measure the influence of personal aspects on someone’s life four parts of the
questionnaire will be used. The first part will be on ‘Physical symptoms’, to
measure symptoms of psychopathology through physical experiences. The items will
have a response scale ranging from 0 “not been bothered by the wrongful conviction”
to 4 “This wrongful conviction is extremely bothering” Participants will be
asked about their experience during the time of their wrongful conviction for sexual
offence.

 

Questions
will also be asked to assess the ‘Feelings and Behaviour’ part to measure
depressive symptoms in the general population The questions will consist of
items  divided over 4 subscales, ‘Somatic
Retarded Affect’, ‘Depressed Affect’, ‘Positive Affect’, and ‘Interpersonal
Affect’. The items could be scored on a four point Likert-scale from 1 “Almost
never (less than 1 day)” to 4 “almost all the time (during the conviction and
afterwards)” in which participants can indicate how they felt during the time
of wrongful conviction and aftrwards. Examples of items are ‘I did not wanted
to eat; I had little appetite’, and ‘I felt depressed’.

 

Questions will
also be designed in order to measure the degree of stress that is appraised in
such a situation of being wrongfully convicted for a sexual offence. The Questions
will consist of items can be scored on a five point Likert-scale ranging from 0
“never” to 4 “very often”. Participants could indicate how many times they
thought or felt a certain way, during the time of the wrongful conviction and
even afterwards. Examples of items are ‘How many times did you feel nervous and
stressed?’ or ‘How many times did you had the feeling that everything was under
control?’.

 

·        
Economic aspects

 

The demographic part of
the questionnaire will be used to look at the influence on the economic aspects
on someone’s life, mainly through looking at the answers given on the questions
about the employment and financial situation and the answers given on the
open-ended questions.

 

CHAPTERIZATION

 

Chapter 1              Introduction

 

Chapter 2              Research Methodology

                              (i) 
  Research Problem

                              (ii) 
 Objectives

                              (iii)  Hypothesis

                              (iv)  Research Questions

                              (v) 
 Research Design

                              (vii) Mode of citation

                             

Chapter 3              Literature Review

 

Chapter 4             Defining
a wrongful conviction

 

Chapter 5              Sexual Offences under Penal Code
of Sri Lanka

 

Chapter 6              Causes of wrongful conviction for sexual
offences in Sri Lanka

 

Chapter 7              Effect of wrongful conviction for
Sexual Offence

                              (i)  
Social aspect

                              (ii) 
Personal aspect

                                          (a)
Physiological

                                          (b)
Psychological

                              (iii) Economic aspect  

 

Chapter 8              Current Criminal Justice system and
Miscarriage of justice in Sri Lanka

                              (i)   
Failure of due process

                              (ii)   Limitations of adversarial approach

                              (iii)  Legitimacy of current criminal justice system

                              (iv) 
Violation of Human Rights

 

Chapter
9              Government Response to the
issue of wrongful convictions for sexual offences

 

Chapter
10            Conclusion

     

 

TIME
FRAME WORK

 

Item

Time
Frame

Selecting
the topic and drafting of Research Proposal

December 2017 – January
2018

Literature
Review

January 2018 – February
2018

Preparation
of the Questionnaire

February 2018 – March 2018

Data
Collecting (Field Work)

April 2018 – June 2018

Data
Processing

June 2018 – July 2018

Data
Analyzing

July 2018 – August 2018

Drafting
the final Report

August 2018 – November 2018

Submission
of the final Report

November 2018

 

 

 

 

1 Commentaries
on the Laws of England (Sir William Black Stone 1975)

2 Community
of the Wrongly Accused (COTWA) website: http://www.cotwa.info/

3 Campbell, K.,& Denov M. (2004). The burden of innocence:
Coping with a wrongful imprisonment. Canadian Journal of Criminology and Criminal Justice,
46(2), 139-163

 

4 De Duabus Animabus Contra Manicheos
(St Augustine)