Use the law to protect our girls

  • Nation
  • Sunday, 26 May 2013

Izzah, an innocent kampung girl, follows her uncle to Kuala Lumpur when he promises her a job. When they get to the city, however, he sells her to a brothel. Luckily, the son of a tycoon, Johan, comes to her rescue. But he could not resist her charms and rapes her. To save her honour, she begs him to marry her.

Forced into the marriage, Johan resents Izzah and treats her cruelly. But Izzah remains a dutiful wife, and her patience pays off when Johan falls in love with her. He repents and mends his ways. And they live happily ever after.

If you think this all sounds a tad dramatic, it is. Basically, this is the plot of a Malay movie that hit the local box-office last year.

In fact, if you had asked young Malay girls who their ideal man was then, many would have answered “Johan”.

Despite the age difference of the “heroines”, one cannot help drawing parallels with another story that caught the nation’s attention recently – the recent statutory rape case in Sabah where the 40-year-old perpetrator married his victim, a 13-year-old, as a way to absolve the wrong he had done.

Those who were disturbed by the message of the film now have their fears vindicated: society’s awareness of rape is still generally low, and is mired in patriarchal beliefs and misogynistic prejudice.

The practice of marrying rape victims after the suspect is accused of rape is a reality in our country, says Melissa Mohd Akhir, advocacy officer with the Women’s Centre for Change (WCC).

“In my experience as former prosecutor, such ‘marriages’ were more prevalent in statutory rape cases where both parties are young of age, for example a 15-year-old girl-child and a 19-year-old in conflict with the law. It is only in extremely rare cases that there is more than a 15-year age gap between the adult accused and the child-victim,” she says.

Unfortunately, she adds, the WCC and their partner women’s groups in the Joint Action Group for Gender Equality (JAG) have no data on its rampancy.

Melissa believes this phenomenon should raise the alarm bells for the authorities, particularly the Attorney-General’s Chambers (Prosecution Division) and the Syariah courts.

The two authorities, Melissa says, need to monitor the number of these cases as they carry the responsibility of exercising essential discretion here, either in deciding to discontinue such criminal trial or in giving permission for the accused person to marry the child.

“These authorities should be responsible for monitoring such cases and releasing the full data to the public as a form of monitoring in the public interest, so that any pattern of ‘rampancy’ may be addressed,” she says.

This is definitely crucial in light of the rising number of rape, especially rape of minors.

As police record shows, rape cases continue to rise each year – from 138 cases recorded in 1980 to 3,595 in 2010! It is estimated that 10 women are raped every day, with many more going unreported. At least half of the victims are said to be children and teenage girls below 16 years old.

The increase in the rape of minors is also consistent: 378 were reported in 1991, and as at July 2012, 859 cases were reported. As former de facto Law Minister Datuk Seri Mohd Nazri Abdul Aziz summed it up in Parliament last year, some 6,000 statutory rape cases were reported in the last five years.

While the common belief is that many of these cases involve “young couples in love” due to the growing number of sexually active youths in the country, there is also a worrying trend of adult/child relationships, and even paedophilia.

The findings of the Rapist & Rape Report (published in 2008 by Era Consumer Malaysia) should be taken to heed.

The two researchers for the study, Dr Rohana Ariffin, retired associate professor of Universiti Sains Malaysia, and academic Dr Rachel Samuel, spent 10 months interviewing 90 convicted rapists aged 20 to 72 detained in four prisons nationwide.

Their research found 66 of the inmates surveyed were convicted of raping underage girls, with 82% of respondents aged 50 and above having raped girls aged 16 and below. Dr Rohana believes the trend continues today with rape victims becoming increasingly younger.

It is time that the authorities study the trend. (Currently, all these offenders are lumped under the category of statutory rape.)

The way some of the recent statutory rape cases were dealt with reiterates the need for urgent action, notably the leniency showed to two offenders – former national bowler Noor Afizal Azizan, 19, and electrician Chuah Guan Jiu, 21, for their crime against a 13-year-old and a 12-year-old respectively – while the judges ponder on the victims’ consent for the sexual violence committed against them.

But just as in the latest case in Sabah, while the circumstances surrounding the case are unclear, the law is not.

Section 375(g) of the Penal Code (Act 574) states that sexual intercourse with a girl under 16, with or without her consent, is an offence of statutory rape.

Like in many countries that recognise the heinous nature of statutory rape, the law was formulated to protect minors from being taken advantage of sexually by adults.

A statutory rape is a statutory rape, reiterates Malaysian Council of Child Welfare vice-president Datuk Dr Raj Abdul Karim.

“In line with international norms as in the Convention on the Rights of the Child (CRC), the issue of consent does not arise when a person has sex with a minor under the age of 16 years. This is considered abuse or exploitation of young girls. The law on statutory rape is meant to protect young girls below 16 years from being abused, tricked or harassed into having sex.”

She stresses that the laws are based on the premise that until a person reaches a certain age, that individual is legally incapable of consenting to sexual intercourse. The law assumes, even if he or she willingly engages in sexual intercourse, that sex is not consensual.

The adult perpetrator needs to be responsible for his action and understand the consequences of his irresponsible behaviour on the young girl, Dr Raj says.

“There is no excuse for having sex with girls as young as 12 and 13 as these girls are vulnerable and should not be subjected to being placed in comprising situations.

“Young girls are not ready for sex and are not ready to bear the consequences of early sexual activity. Minors like these would certainly undergo emotional, psychological and mental trauma, which can develop at any time and lead to long-term and life-long consequences.”

A knotty issue

The dilemma in Malaysia, as pointed out by WCC programme director Dr Prema Raj, is the conflicting message from the laws relating to the issue of sex with an underage girl. In fact, Dr Prema had even put out a hypothetical question in civil society journal Aliran last year: “Is marriage now going to be used as a method of escaping prosecution for statutory rape in civil courts?”

As she highlighted, on the one hand you have the statutory rape law, which makes it a crime for anyone to have a sexual relationship with girls below the age of 16. On the other hand, there is the provision in the legal marriage age which allows Muslim girls younger than 16 to be married off with the permission of the Syariah Court.

The contradiction between the two laws creates a loophole just waiting to be exploited by anyone looking to escape prosecution for statutory rape.

The public outrage rightfully put the spotlight on the controversial practice of child marriages in the country.

In the 2000 Population and Housing Census, it was recorded that 6,800 girls under the age of 15 were married and 235 children between the ages of 10 and 14 were widowed, and 77 divorced or permanently separated.

This case highlights the need to not only review the implementation of the statutory rape legislation but also raise awareness on the seriousness of the sexual crime against minors.

Citing the recent case, Dr Raj says the circumstances should be given serious thought and consideration on future implications to prevent other predators taking the same plea bargain, leaving our young girls unprotected and exposed.

“Laws are to protect people, in this case young girls, from harm or danger. Besides, as many studies show, sexual crimes are repetitive and one is never sure that those let free will not repeat these acts. I do not think there is a need to amend the law but there is a need to enforce the law in relation to the severity and nature of the crime.

“Having sex with a minor below the age of 16 years is considered statutory rape as defined in the Penal Code. The issue of consensual sex does not arise as it is very difficult to prove whether consent was actually given,” she adds.

Girls aged 12 and 13 are not mentally mature enough to be able to make such informed decisions and to be responsible for that decision. In most cases, says Dr Raj, there will always be an element of coercion and the girls subjected to intimidation and duress, resulting in them giving in without knowing what they have been subjected to.

As Dr Raj attests, “Coercion, intimidation, threats and other forms of duress are very difficult to prove.

“The subject of consensual rape and non-violence, as said earlier, is difficult to prove unless there are obvious signs of physical violence.

“But the act of having sexual intercourse with young girls is in itself an act of physical violence.”

To be fair, Attorney-General Tan Sri Abdul Gani Patail has come out to say that they will not tolerate any kind of statutory rape and will take a firm stand in prosecuting it.

The issue remains, can somebody else exploit the loophole?

Melissa explains that article 145(3) of the Federal Constitution and Section 376 (1) of the Criminal Procedure Code (CPC) place on the Public Prosecutor the discretion to conduct or discontinue a criminal case.

However, in exercising this discretion, a variety of factors should be considered, such as public interest, impact on society, prospect of success and getting conviction, and the impact or seriousness of the crime.

Ultimately, the principle of the best interest of the child must be the basis of all decisions.

This is one of the key principles of the UN Convention on the Rights of the Child (CRC), of which Malaysia is a signatory. In other words, Malaysia is obligated to ensure that all laws and action affecting children should put their best interests first and benefit them in the best possible way, says Dr Raj.

This would require awareness and sensitivity programmes to expose all judges to the rights of a child and the application of the law, including Malaysia’s obligations under international laws (CRC and CEDAW), to guarantee that decisions are made based on the principle of the best interest of the child.

Melissa agrees. “Prosecutors must be sensitive to the vulnerabilities of child victims, and have regard for their mental and physical well-being as they are likely affected by the decision to withdraw or pursue the case in the long term,” she says.

Wider responsibility

The attitude of parents and society plays an important role, Melissa stresses.

“Sometimes, the child’s parents could be the main obstacle to proving the crime of rape,” she says.

“When the parents marry off their child to the accused, the prosecution’s control over the outcome of the case becomes extremely difficult because the child and the family may become uncooperative prosecution witnesses.”

The circumstances that force the parents’ hand, such as extreme poverty, shame and not knowing what to do with a sexually active child, should also be taken into account.

“All of us have to play a part in ensuring that children are not exploited, from eradicating poverty to changing the society’s attitude of viewing marriage as the ultimate (ab)solution to social ills, to sowing respect and care for the best interests of each child in each adult,” says Melissa.

“At the same time, the government and public institutions must not enable child marriages that further compound the problems in society.”

JAG urges that immediate protection, counselling, support and assistance be provided to the victim and her family by the relevant authorities.

“The child protector should be using the full powers of the Child Act 2001 to intervene for the best interest of the child. Laws and practices that are harmful to children’s well-being must be challenged and rectified.

“Our children need protection and we have a duty and obligation to protect them at all costs.”

Referring to the sentencing guidelines started by the Malaysian Bar, Melissa recommends that the identification of elements of exploitation of children be included.

“For example, in the UK’s Crown Prosecutor guidelines, the age difference between the child and the accused is a very strong consideration factor. The implementation of our laws must be based on sound basic rules that are applied to the unique circumstances of each individual case, including expert assessment of the child in question and the dynamics of the power relations between both parties.”

Another move is to strengthen the rape victim’s cases in court which, more often than not, rely heavily on the victim’s testimony for conviction.

Supporting evidence may come from various sources, for example psychological experts who have continuously assessed the victim, says Melissa.

“These experts may be able to explain some parts of the victim’s evidence that others, including lawyers and judges, may not be able to understand.

“This may help counter the ‘rape myths’ propagated in the court trials, for example that early teenage girls are promiscuous and able to ‘consent’ to rape.”

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