Court accepts argument that homosexuality is neither a mental illness nor an offence.
In a ground-breaking decision, the Wattala Magistrate’s Court dismissed a case filed against a lesbian woman accepting the submission of defence counsel that homosexuality is neither a disease of the mind nor an offence.
Background to the case
A case was filed at the Wattala Magistrate’s Court against a 22-year-old lesbian woman. The parents of the victim, with the help of the Welisara Mahabage police, had filed a motion in Court seeking a declaration that she was mentally ill because she was a lesbian.
The parents of the victim had been illegally confining the adult woman and subjecting her to abuse, harassment, and forced conversion services after she informed them of her sexual orientation and that she was in a consensual and loving, same-sex relationship.
The matter was initially raised with the Welisara Mahabage Police when a friend of the victim made a complaint to the Welisara Mahabage Police after receiving an email from the victim explaining her illegal confinement.
The victim and her parents were then summoned to the Police for further inquiry. Here, the parents of the victim informed the Police that the victim was suffering from a mental illness as a result of her homosexuality. The Police then further discriminated the victim based on her sexual orientation. The Police, on the request of the parents of the victim, subjected her to a psychiatric evaluation with a psychiatrist suggested by the OIC. The parents of the victim then made a complaint against their daughter stating that she was in a same sex relationship and suffered a mental illness therefore they wished that she be produced before a Judicial Medical Officer for psychiatric evaluation. The victim objected to this examination on the ground that no court order was issued.
One week later, the Police summoned all parties back to the Police station stating that there was no evidence of an offence being committed on the part of the victim and they wished to release her possessions back to her. The counsel appearing for the parents of the victim then contested the ownership of the possessions. The Police then stated that this dispute should be resolved by the Magistrate and presented the facts to Court.
First hearing before the Interim Magistrate
On 21 March 2022, the case was taken up before an Interim Magistrate at the Wattala Magistrate’s Court. Appearing on behalf of the parents,the parents’ lawyers, a President’s Counsel, made an application to the Court that the victim suffers from a mental illness and should be subjected to a psychiatric evaluation by a Judicial Medical Officer (JMO) because of her homosexuality. Despite there being no specific offence charged and no legal basis for a medical examination, the Interim Magistrate had ordered the victim to be produced before a JMO for examination before the next hearing.
Interim Magistrate’s decision successfully challenged
Following this decision by the Interim Magistrate, the victim’s lawyers filed a revision application to the High Court of Negombo to contest the Interim Magistrate’s decision. The lawyers argued that the Interim Magistrate had reached her decision merely upon submissions provided by the complainant and not upon any legal reasoning.
Magistrate’s often issue orders subjecting LGBT people to anal and vaginal examinations and STI testing purely on the request of the police. Such decisions can be challenged through revision applications. This case highlights this possibility.
Sri Lanka College of Psychiatrists statement on homosexuality
In August 2021, the Sri Lanka College of Psychiatrists also issued a statement that homosexuality was not a mental illness. They further went on to state that the myth of homosexuality being a mental illeness lacked any scientific-based evidence and called on the relevant authorities to repeal S.365 and 365A of the Penal Code.
Sections 365 and 365A of the Penal Code do not expressly criminalise homosexuality but is misapplied and misinterpreted by law enforcement to persecute LGBT people.
The case was called again recently by the Wattala Magistrate Court. The Magistrate was then informed of the revision application that was made against the order of the Interim Magistrate. Further allegations were then put forward by the complainant’s lawyer that the victim had been ‘brainwashed’ and ‘abducted’ by her partner, despite the victim’s claims of being in a consensual relationship. This was despite the victim having earlier made a statement to the Mahabage Police Station that she does not wish to live with her parents.
Arguments were then raised by the victim’s lawyer that since the victim was of 22 years of age, she is an adult and is in full capacity to make her own decisions. The victim’s lawyer also informed the court of the statement issued by the Sri Lanka College of Psychiatrists, which rejected homosexuality as a mental illness. Furthermore, evidence was provided to the fact that the victim did not suffer from any mental illness that warranted her confinement since she was holding a Bachelor’s Degree in Business and was employed as a teacher.
The complainant’s lawyer argued that releasing the victim to the public would endanger children as she was a teacher.
Being a lesbian is not an offence
The victim’s lawyer further stated that the victim’s sexual orientation as a lesbian does not constitute as an offence under the Penal Code of Sri Lanka. In a U-turn for the police, the final report submitted by the Welisara Mahabage Police Station also stated that there was no evidence of any offence being committed by the victim.
Following these arguments, the Magistrate stated that there was in fact a lack of evidence of any mental illness and that no offence had been committed by the victim.
Magistrate dismissed case
The Magistrate dismissed this case on the grounds that a JMO examination was not warranted since there was no evidence that the victim was suffering from a mental illness, thereby accepting that homosexuality was not a disease of the mind.
The victim was supported by a collective of pro-bono lawyers working with legal probono organisation iProbono. Lawyers included President’s Counsel Dilrukshi Wickremasinghe, Erandhi Abeynake, Thishya Weragoda and Shevindri Manuel.