Medico-legal aspect of offences against the person
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Date
1988
Authors
Babapulle, C.J.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Peradeniya
Abstract
The Penal Code of Ceylon (Sri Lanka) modelled on the Indian Penal Code and enacted in 1883 has remained substantially the same despite developments in many of the disciplines to which the law is related. Medicine is one such discipline and the progress it has made has rendered many provisions of the Code (of medico-legal importance) in need of restatement.. Whilst the requirement of. reform has been accepted in principle by such acts as the creation of a Law Reform Commission, little headway has been made. That reform should be preceded by research including n comparative study of our law with the law of those jurisdictions having n similar social and political background has also been recognized. With the need for reform, of research and of comparative analysis in mind, this study was undertaken to review the medico-legal aspects of offences in respect of the person (dealt with in chapter XVI, of the Sri Lankan Code) so as to indicate some avenues along which a restatement of the 1a\-.' in respect of the "person" may be undertaken. The scope was restricted to the substantive law (adjectival law being dealt with only peripherally) with aspects relevant to the victim being the main consideration. Chapter one presents the grounds which justify the study its aims and objectives, and the methods employed. Included in this chapter is a section providing material of general interest dealing with the criminal law, its relationship to society and ·morality, criminal' liability, the codified and common law traditions, the Continental and' 'Commonwealth' Codes the later incg1udirig discussion .of the Indian Penal Code as well. 'Then follow sections dealing with the criminal law of Sri Lanka and the place of the Penal Code in the criminal law. Concerned as this study is with the "person", the second chapter inquires into the legal and non-legal aspects of "person" and "personality" distinguishing the legal notions from the psychological and philosophical' notions. A basic difficulty presented' itself in that the Chapter of the Code of relevance was titled "offences affecting the Human Body" - there being no direct ,reference to "person ", This necessitated and enquiry.. into some aspects of legal biology (with which Chapter. Two commences) viewing the human organism developmentally and progressively rather than episodically. The division of a human organism into a body and mind appeared artificial - the interdependence of one on the other being emphasized. The notion of legal personality seemed to be tied up with "beingness" - these aspects receiving due consideration. The Chapter draws implications from the discussion and points out certain anomalies and deficiencies in the Code. A brief enquiry into "offence and offences in respect of the person" concludes this chapter. The next chapter undertakes the task of systematisation of "offence affecting the human body (the person?)". Having first presented the broad grouping as presently found in our Code, the classification of similar laws in other jurisdictions Together with the criticisms . 1evelled atl some of these classifications, the chapter proceeds to present several tables . of classification of the existing law and also new proposals, The latter is based on the concepts of health, legal interest and harm, the harm to a person being initially either physical or psychological, but in either event involving the entire "being" or organism. A category of :"social harm" can be distinguished, but this has been accommodated under the category of psychological (mental) harm. Classification which is "as near as we possibly can (get) to the throbbing heart of the legal process" requires awareness of the meanings of terms and the identification of characteristics to serve as criteria for distinguishing one class from another. The chapter pays attention to this aspect. Chapters four to seven inclusive deal in turn with in-depth analyses of the offences (i) affecting life; (if) causing miscarriage, injuries to unborn children, exposure of infants and surreptitious disposal of the dead body of a child; (iii) hurt and (iv) sexual offences. Only those aspects of medico-legal relevance have been dealt with, with particular reference to the victim (patient). Peripherally, the doer (actor, offender, defendant) has also been considered as in the case of infanticide The final chapter concludes by indicating some avenues for restatement of the provisions in respect of the human body / person and of some of the general sections connected therewith.
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Keywords
Medicine , Forensic Sciences