Wednesday September 12, 2012
Rage over rape of innocents
Along The Watchtower
By M. VEERA PANDIYAN
While seeking adequate punishment for cases of sexual crimes against minors, focus should also be on providing proper sex education, especially in recognising and preventing sexual assaults.
JAILBAIT. That’s the term used to portray sexually attractive minors in the United States, plainly explaining the risks of trying to get physically intimate with the under-aged.
It describes a person below the age of consent with whom any form of sex is regarded as statutory rape and that anyone who dares to do this will end up behind bars.
Statutory rape is indeed a heinous crime. Everywhere in the world, laws formulated for it are meant to frighten perverts and predators eyeing to exploit vulnerable children and teenagers.
In Malaysia, where the age of consent is 16, public outrage over the Court of Appeal judgments and release of offenders against girls aged 12 and 13 is yet to simmer down.
Former national bowler Noor Afizal Azizan, 19, was bound over for five years on a RM25,000 bond while for electrician Chuah Guan Jiu, 21, it was three years for the same amount.
The judges took the “future” of the young men into consideration and also mentioned that the sexual acts were “consensual”, in spite of the fact that the question of consent is not an issue for statutory rape.
In both cases, the judges also noted that the rapist were “young and first offenders”.
Section 294 of the Criminal Procedure Code does allow the courts the discretion to bind offenders on a good behaviour bond if the person is a first-time offender and if the offence is committed under mitigating circumstances.
But honestly, what are the justifying conditions for having sex with a child of 12 or 13?
Then there is also this case of a kindergarten co-owner whose 20-years’ jail and 10 strokes of the cane sentence for raping a four-year-old girl in 2008 was overturned by the Penang High Court.
And what was the basis of his acquittal? The High Court found that the child’s testimony had a common condition ailing most of our supposedly mature politicians – discrepancies and contradictions.
As if that wasn’t hard to swallow, the judge also said this in his 64-page decision:
“We must not forget who is involved in this rape allegation, even if she is an adult, in which women have a tendency to exaggerate about a sexual act. So, for children of tender years, they confuse facts with fantasy.”
The Penang-based Women’s Centre for Change (WCC) rightly pointed out that courts must be sensitive when considering testimonies of young children as they may not be able to describe the sequence or details of sexual assaults like adults.
The WCC also duly noted that the judge’s alleged statement that “women have a tendency to exaggerate about a sexual act” and that it was “easy for a woman to allege rape” was an insult to all women.
To their credit, the responses of both Attorney-General Tan Sri Abdul Gani Patail and Chief Justice of Malaysia Tun Arifin Zakaria show that they are equally concerned about recent and judicial decisions concerning statutory rape as the average Malaysian.
The A-G has described the slaps on the wrists as “an aberration of justice for those who most need the protection of law” and that they must be rectified.
On his part, Tun Arifin has also placed on record that the Court of Appeal had the powers to review the case upon application by the Attorney General’s Chambers.
But the rapes of minors continue, even as the ire over the judgments rage on.
Last week, three men allegedly raped a 15-year-old girl they befriended via short messaging service (SMS) in Kampung Muhibbah Batu 3 in Tapah, Perak.
The Form Three schoolgirl was taken out for a meal on Sept 3 by one of the men whom she had befriended over the phone just three days earlier.
The brute picked up his two friends and took turns to rape her in a house belonging to one of them. The cops are reportedly still looking for the child rapists.
Top officials of the Women, Family, and Community Development Ministry have called for stiffer laws for statutory rape, in the wake of the recent statutory rape case judgments but as Datuk Seri Nazri Aziz, the de facto Law Minister has said, there is nothing wrong with the laws but questionable sentences.
As highlighted by the Bar Council, perhaps we need a sentencing council to ensure a semblance of evenness in meting out appropriate penalties for odious crimes.
Like the Sentencing Council for England and Wales, set up under the Coroners and Justice Act 2009, such a body – comprising retired judges, prosecutors, senior lawyers, MPs and academics – could help promote better consistency in judgments.
Under the UK’s guidelines, the rape of a child below 13, under the Sexual Offences Act 2003, can lead to a maximum penalty of life imprisonment.
While the seriousness of the offence may depend on many factors, the nature of the sexual behaviour would be the main indicator of the degree of harm caused.
The guidelines also provide enough scope for aggravating and mitigating factors.
The suggested starting point for rape if a victim is under 13 is 10 years’ jail, eight to 10 years if the victim is 13 or more but under 16, and five years if the victim is 16 or above.
But in the case of sexual crimes involving young people, it should not be just about adequate punishment.
The more important aspect is proper sex education, specifically in the scope of preventing sexual assault.
In Malaysia, it is clear that more needs to be done by parents, schools and society to prevent youths from committing statutory rape and make prepubescent and teen girls recognise what constitutes sexual abuse and how to defend themselves from such assaults.
> Associate editor M. Veera Pandiyan remembers this humorous quote by comedian Bill Cosby: Sex education may be a good idea in the schools, but I don’t believe the kids should be given homework.