Sunday October 28, 2012
Leniency bill: Yea or nay?
BY LISA GOH
While some find the Bill a laudable step forward for statutory rape cases, others in the legal fraternity believe discretion in sentencing should be left with the judiciary.
IT began with the two statutory rape cases where the offenders were let off on a bond of good behaviour as they were deemed to have “a bright future”.
What followed was a maelstrom of public outrage, and in its aftermath is a new Bill that would disallow judges from handing down lenient sentences to statutory rapists.
Dubbed the “No Leniency Bill”, it seeks to curtail a judge's discretion in binding over a person convicted of statutory rape, even if the person is a first-time offender.
The Bill will add a provision to Section 376 of the Penal Code to state that Section 294(1) of the Criminal Procedure Code (CPC) would not apply to statutory rape cases.
(Section 294(1) states that following a conviction of a first-time offender, regard may be given to the “character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or to any extenuating circumstances under which the offence was committed”, and that the court has the discretion to have the offender enter a bond of good behaviour, instead of “sentencing him at once to any punishment”.)
But is this new Bill the best move forward? Even within the legal fraternity, opinions are divided some are for it while some others are arguing that it will further erode judicial discretion.
Veteran criminal lawyer Karpal Singh, for one, supports the Bill. In fact, he takes it one step further and says that two sections of the CPC, not one, should not apply when it comes to statutory rape cases.
“What also needs to be looked at is Section 173A of the CPC. It should be both. The amendment (to Section 376) should say that both Section 173A and Section 294(1) shall not apply (for statutory rape),” he says.
Section 173A allows judges the discretionary power to discharge an offender conditionally (under a bond of good behaviour) or unconditionally, “without proceeding to record a conviction”.
“What is the point of exempting Section 294(1), if Section 173A is still open (to the courts)?”
Retired Court of Appeal judge Datuk Mahadev Shankar sympathises with the movers of the Bill.
“I hold strong views against the sexual interference of minors,” he says. “If Parliament in its wisdom feels this needs to be done, I respect that because it is done with good motive, and with the intention of producing good results. But believe me, it won't stop the crime. The death penalty hasn't stopped murderers or drug traffickers. So the proposed amendment is only a partial solution to this problem. We also have to overhaul other aspects of the social process.”
Minister in the Prime Minister's Department Datuk Seri Nazri Aziz announced the Bill recently, saying he had spoken to Attorney-General Tan Sri Abdul Gani Patail on the provision, and that the latter had agreed. He was reported as saying that the Bill would, therefore, be “tabled in the next session of Parliament”.
Nazri added that he had also taken into consideration the views of women's groups and other non-governmental organisations which were upset by what they regarded as very lenient sentences passed on former national youth squad bowler Noor Afizal Azizan and electrician Chuah Guan Jiu for statutory rape.
Penalty for statutory rape is a jail term for a minimum of five years, up to a maximum of 20 years, and whipping. However, the two were bound over for RM25,000 for good behaviour for five years and three years respectively after being found guilty of statutory rape in August this year. They were 19 and 21 respectively when they committed the offences, while their victims were 13 and 12.
While some find the Bill a laudable step forward, others in the legal fraternity are less keen about it.
UiTM Emeritus Professor of law Datuk Dr Shad Saleem Faruqi, for example, believes that the law is not yet in need of serious change.
“Sentencing is a judicial function. Judges must be given discretion to tailor the sentence to the gravity of the offence,” he says.
“I am not in favour of mandatory penalties which will cause judges to treat all cases alike. In law and life, there can be massive permutation of facts. Cases are not all alike, even if the facts are similar.”
And if parties are aggrieved by a judge's ruling, he says, the appeal process is there as a safeguard to rectify the situation.
According to Dr Shad Saleem, what concerns him more is that the law ought to be more consistent when it comes to the rape of a minor, be it a boy or a girl.
“The law must always be consistent in principle. And in this, it is not consistent for rape. According to our Penal Code, only a woman can be raped. But what if a young boy is raped by a much older man? Sodomy law is there, but it doesn't deal with the issue of rape, or statutory rape. A man violated will also have a sense of indignation. The same principles should apply,” he argues.
Removing a judge's power of discretion in statutory rape could prove to be a dangerous move, Dr Shad Saleem cautions.
“Sometimes a girl can look older than her age, like a young sex worker, and she could lie about her age. In such cases (if the Bill is passed), a judge would have no choice but to sentence the offender to jail and for whipping. I think it is dangerous not to allow mitigation.”
He adds that such a law would also have to apply, even if it was a 17-year-old boy having sex with his 15-year-old girlfriend.
“It would apply, and the fact is that our young people these days are sexually active. Pornography is easily available and cannot be controlled on the Internet. And so this 17-year-old boy will have to be tried as an adult in the courts,” he says.
Bar Council president Lim Chee Wee concurs. He points out that the new amendment fails to consider young love relationships, a situation which is recognised in England and Wales, where the Crown Prosecution Service (CPS) Legal Guidance on the Sexual Offences Act 2003 explicitly states “that prosecutors may exercise more discretion where the defendant is a child”.
He says the CPS also cites Lord Falconer in Parliament, stating “where sexual relationships between minors are not abusive, prosecuting either or both children is highly unlikely to be in the public interest”.
Instead of amending the law, Lim suggests the setting up of a sentencing council.
“Consistency and proportionality of sentencing are the two most difficult aspects of sentencing, as both history and recent events demonstrate. One of the most common ways of resolving this dilemma and achieve consistency in sentencing is the establishment of a sentencing council, which would promote consistency by having guidelines for judges to decide on the appropriate sentence to reflect the crime committed and proportionate to the seriousness of the offence.”
He explains that sentencing guidelines for individual offences would set out sentence ranges reflecting different levels of seriousness and within each range, a starting point for the sentence.
The composition of these councils includes judges, prosecutors, civil societies, defence lawyers and academics.
“The guidelines also provide guidance on factors the court should take into account that may mean a more or less severe sentence should be imposed.
“The jurisdictions which have it include England and Wales, Scotland and Australia (New South Wales and Victoria). The Sentencing Council for England and Wales promotes greater consistency in sentencing, while maintaining the independence of the judiciary,” says Lim.
Regardless of which side of the fence these legal experts sit on with the new Bill, all seem to agree on one point public interest must be served, as Karpal aptly summarises.
“I think it's very important public opinion has to be the test in the end. You can't run away from that. Public opinion dictates the type of law we need in the country.”