Should we send all statutory rapists to jail?

A version of this article was published in The Star’s iPad application.

Over the course of the past few weeks, the nation witnessed two controversial decisions in cases of statutory rape. The first was a Court of Appeal decision involving a national bowler and the second one is a decision of a Sessions Court in Penang involving an electrician. In both cases, the Courts exercised their discretion under Section 294 of the Criminal Procedure Code (CPC) and ordered that both accused be bound over on bonds of good behaviour. The two decisions attracted condemnations from the public and civil society groups for allowing rapists to ‘get away’ with their crimes.

It would be pertinent to first understand what ‘statutory rape’ is. The offence of rape is found in Section 375 of the Penal Code. According to the said section, a man is said to commit rape when he has sexual intercourse with a woman under certain circumstances. Those circumstances are listed in the Code, amongst which is with a woman is under 16 years of age, with or without her consent. This is what we refer to as ‘statutory rape’, although the term ‘statutory rape’ does not expressly appear in the Penal Code. The offence of statutory rape was formulated in order to protect minor girls.

Once an accused has been found guilty or has pleaded guilty, the Courts would then have to sentence the accused person. There is no golden rule or an iron case formula in the sentencing of accused persons following a conviction in criminal cases. However, there has always been a general principle that the Courts have a flexible and free discretion to be exercised judicially and with a judicial conscience in deciding the form and period of punishment when sentencing a guilty accused.

According to the Penal Code, man who commits rape shall be punished with imprisonment and shall also be liable to whipping. Thus, a person who commits rape is to be sent to jail, to reflect the gravity of this offence. In spite of this, the Courts do possess discretion under Section 294 of the CPC to order a ‘binding over’ if the accused is a first offender, that is to say to suspend the sentence for a period of time, with or without sureties. In this period, the accused must be of good behaviour, failing which he would be liable to immediately serve his sentence. A binding over is not an acquittal, the accused is still guilty and he would still have a record of his conviction. To say that the two accused has been let off by the Courts would be inaccurate.

In the case of the national bowler and the electrician, the Courts have exercised their discretion under Section 294 of the CPC. The legality of this exercise is not in doubt; they do have such powers. What we can and should question is whether they have exercised their discretion correctly. In sentencing, the Courts would have to consider the mitigating and aggravating factors of each case. The mitigating factors are factors which would lessen the sentence, whilst the aggravating factors are factors which would increase the sentence to be meted out. Similarly, these factors would have to be considered by the Courts in the exercise of their discretion under Section 294 of the CPC.

One of the factors considered by the Courts in both cases is the issue of consent. The girl in both cases were said to have consented to the sexual intercourse by their respective partners. In both cases, this was taken as a mitigating factor. Critics argue that consent should not be a mitigating factor at all as consent is irrelevant in statutory rape. But this is true only insofar as proving guilt of the accused. An accused charged with statutory rape cannot use consent in his defence.

However, consent is a relevant factor in sentencing. In the Penal Code itself, Section 376(2) provides for minimum prison sentences that must be meted out if the rape occurred under certain circumstances. It provides that if the rape is committed on a girl under 12 years old, there would be a minimum sentence of not less than 5 years. But if the rape is committed on a girl below 16 years old but presumably above the age of 12, a minimum sentence should only be meted out if the offence occurred without the girl’s consent.

Similarly, the consent of the girl may be a mitigating factor in sentencing. There is no legal provision to say that an element of an offence that need not be proved can never be a mitigating factor. Age, family background of the guilty accused, whether the guilty accused is a first time offender, whether the guilty accused is genuinely remorseful are all mitigating factors that the Courts routinely consider, yet none of these are elements to be proven or may be used in the defence.

No two crimes are the same, no two victims are the same, no two guilty accused are the same and no background facts of each criminal case differs from each other. It is for this reason that the Courts are equipped with discretion and they are less fettered with precedents when it comes to sentencing. Would it be fair to sentence a thief who stole to feed his family the same sentence as a thief who habitually steals as a hobby?

The furore surrounding the two Court decisions does not stem from errors in law but arguments premised on public policy and morality. At the end of the day, we are unhappy at the decisions not because they are wrong in law but because we want to see these two guilty accused spend time in jail for their crimes.

Are we as a society, making a collective stand that every single person who commits statutory rape must be sent to jail? If this is the stand that we want to take, we must amend the law to remove the Courts discretion in sentencing statutory rapists. The law should provide for a minimum prison sentence and expressly exclude any exercise of binding over the guilty accused.

Statutory rape is a grave offence, make no mistake about it. Rape should never be taken lightly. But we must be clear in our criticisms and on how best to deal with rape. Many have argued that the two should serve time in jail as a deterrent to others, but is there evidence to show that jailing criminals is an effective deterrent? It is also generally accepted that young offenders should be kept out of jail as it may cause them and society more harm than good.

What about the girls, you may ask. What about justice for them? But the criminal justice system was not put in place primarily as a means for victims to obtain justice. A crime is a wrong committed against the State, that is why it is the State that prosecutes and not individuals. That is why victims cannot influence the prosecution and while the Courts may take into consideration the victim’s statement during sentencing by way of a ‘victim impact statement’, this is only one of the factors. Also, looking at it objectively, would justice be served for the victims and their families by sending the 2 guilty accused to jail?

Here are some thoughts to ponder; what if we take a hypothetical yet entirely plausible scenario of an 18 years and 1 month old boy having sexual intercourse with a 15 years and 11 months old girl. The boy is in Form 5 (as he was in remove class for one year) and the girl is in Form 3. Both of them freely consented and there was no force or deception involved leading up to and during the intercourse.

The boy would be guilty of statutory rape, without a doubt. Put aside the moral and religious arguments for one moment and ask ourselves; should we jail the boy for his indiscretion? If the answer is yes, one wonders how many of our school students would be incarcerated for being sexually curious.

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Syahredzan Johan adalah seorang peguam muda dan seorang rakan kongsi di sebuah firma guaman di Kuala Lumpur. Dia melihat dirinya sebagai seorang pengkritik politik dan pengulas sosial. Tetapi dia sebenarnya hanyalah seorang warga Malaysia yang mempunyai terlalu banyak pendapat. Dia adalah seorang yang patriotik, walaupun bukan dengan cara biasa seperti mengibar bendera. Dia percaya Malaysia mempunyai potensi yang hanya dapat direalisasi sekiranya rakyatnya belajar bersatu-padu dan bukannya berpecah-belah. Ikutilah Syah di Refleksi Minda.

Posted on 10 September 2012. You can follow any responses to this entry through the RSS 2.0.

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