On Statutory Rape in Malaysia

Firstly, let me start with the fact that I have the utmost respect for Datuk Paduka Marina Mahathir. To me, she is a shining example of what it is to be Malaysian. Her work over the years stands as a testament to the strength of her character, and the fullness of her heart.

Therefore, it was shocking for me to read her views regarding statutory rape in her "Musings" column titled "A mockery of statutory rape law", which appeared on September 11, 2014 in The Star.

In it, she started with 2 stories involving 14-year-old girls. It then went to section 376 of the Penal Code, the cases of Nor Afizal Azizan and Chuah Guan Jiu, a comment about movies that use rape as a plot device, and then she touched on the Kota Kinabalu case of Riduan Masmud (though his name was not mentioned), and a somewhat messy denouement.

I must protest.

Lumping together the cases of Nor Afizal Azizan, Chuah Guan Jiu and Riduan Masmud grossly glosses over the different facts of each case (save for the most prominent one, i.e., that the girls in all 3 cases were under-16), and the prevailing law of the land.

Yes, rape is about violence. That is true. Yes, statutory rape (sex with a minor who is legally not able to give consent to the act of sex) is both illegal and reprehensible. But the situation is not as black and white as the column suggests.

Let's start with consent. In Malaysian law, section 375 of the Penal Code  (PC) says that sex with a woman without her consent (among other things) is rape. If consent is obtained by threats or deception, it is not a valid consent; and if sex ensues, it is rape. This is the simple summary of the law on rape.

If the woman is under-16, then the law deems any sexual intercourse with her as "rape," even if she consented. That is why the term used is "statutory" rape. It means that under statute (the law passed by Parliament), when a girl under-16 says "yes" to sex, the law still considers it rape, and the man who has sex with her can be charged with rape (and most likely will be found guilty if the element of "penetration" is proven).

This issue of consent affects both conviction and sentencing.

For conviction, the key question during a statutory rape trial is, "Did the man have sex with a girl under-16?" If the answer is yes, then he will be convicted of statutory rape.

After the issue of conviction is dealt with, the issue of sentencing arises. The important issue in sentencing is this: What is the appropriate sentence for the man who has been convicted of statutory rape?

The issue of "adequacy of sentence" often riles the public up for cases of statutory rape. Most of the time, he perception is, "that's too lenient." This perception is fuelled by the - sometimes incorrect - view that the young girl was a victim of the lust of an older man who took advantage of a naïve and innocent young girl. That is the usual view that plays in our minds when the term "statutory rape" is mentioned.

It is not an accurate view.

It does not always reflect reality. 

Not all statutory rape cases are about a girl/woman walking down the road, getting pulled into the bushes/vehicle, getting raped and beaten and then left like garbage after the act. These kinds of rape (whether statutory or not) would attract sentences that are retributive or deterrent. No one would argue if the court imposes a sentence of imprisonment (and caning) closer to the maximum in this scenario. Normal reasonable members of society would want it. I would want it.

But what of the statutory "rape" that happens when, say, the girl is 15, the boy is 16, they love each other, and start experimenting with sex? No violence, no coercion; just hormones. This happens everyday. The only reason the word "rape" is used is because under the laws of Malaysia, the girl cannot give consent because of her age, and therefore any sexual encounter she has will be deemed as "rape" in the eyes of the law. The boy has no defence. He is guilty of "rape" as defined by the law.

This is where the element of consent, and judges' discretion, comes into play: during sentencing. The law recognizes that an offence has been committed. The boy is guilty of rape. He will have a criminal record to his name. That's a given. But whether he will be given a slap on the wrist, or community service, or spend time in reform school, or go to prison (with or without caning) depends on the 6 key factors listed below (among other factors that I will not list in full here, in the interest of brevity). The judge will weigh both the aggravating and mitigating factors of the case, and decide what is the most appropriate sentence in light of the particular facts in that case.

Some key factors that the court will consider are as follows:-

1. Was there violence used?
2. Is this his first offence?
3. What is his age? [Children, i.e. those under 18 years old, get special consideration from the court because they are governed by the Child Act 2001  which has the stated purpose of "rehabilitation" in the preamble.]
4. Did she get pregnant? Did she give birth? What happened to the child?
5. Were they boyfriend and girlfriend?
6. Was the victim willing (Did she give her consent)?

For example, in Nor Afizal Azizan  and Chuah Guan Jiu, both girls willingly had sex with the men. There was no force nor violence. And the men were not all that much older than the girls - Nor Afizal was 6 years older while Chuah was 10 years older. These factors can, in law, be valid reasons why the sentence imposed on the boys/young men would be lenient rather than harsh.

For the record, only Nor Afizal was ultimately given a bond of good behaviour. Chuah Guan Jiu, who was initially allowed the bond by the Sessions' Court, was sentenced to 5 years imprisonment by the High Court on an appeal by the prosecution. Both have criminal records for rape now. Only Nor Afizal did not go to jail.

To further illustrate on the issue of adequacy of sentence for statutory rape cases, section 376(2)(e) PC specifically states that, for rape, there must be a minimum sentence of 5 years imprisonment if the girl is under-12. However, section 376(2)(d) PC, by implication, provides that if the girl is under-16 (i.e. between 12 and 16) and she consented to the sex, then the court is not obliged to imposed that minimum 5 years sentence of imprisonment. The Penal Code itself makes the distinction between the different ages of teenage girls and their ability to consent. This is a good thing. It acknowledges that young teens (under-12) and older teen girls are different, and it allows judges the discretion in sentencing when the victim is an older teen girl.

The judgment of the Court of Appeal in the case of Nor Afizal also took pains to note that,  

"Each case depends on its own facts and it is neither feasible nor desirable to attempt to lay down any fixed sentence that is meant to govern this type of cases. Therefore, these observations made by this court should not be misconstrued as intending to have blanket application or applying to all cases involving young offenders charged with the similar offence ... In the present case, if the appellant had been older, or he had used force, coercion or violence on the victim, or he had tricked the victim into submitting to him or he had not cooperated with the police and he had not shown any remorse to his act or there is no guarantee that he will not be committing the same offence in the future, we would not have any hesitation, as we have done in many other cases of similar nature, to impose a lengthy custodial sentence. But before us is a young boy who was extremely remorseful for what he had done and had thrown himself to the mercy of the court by pleading guilty to the charge."

Trial judges in statutory rape trials have, and should always have, a wide discretion because they can appreciate the various factors that come into play for sentencing for different accused in statutory rape cases.

When we consider the case of Riduan Masmud, the factors are different. The girl did not consent. He was much older than her - she was 12, he was 41. He even tried to pay off her father. She had to stop her schooling. These factors weighed very heavily against him and that was why upon conviction he was sentenced to 12 years imprisonment plus 2 strokes of the cane. (He is currently free on bail as has appealed to the High Court against both conviction and sentence. The appeal is fixed on September 29.)

One other factor that most lay people do not understand are the principles of sentencing. In brief, there are different reasons for sentencing. If a crime is violent and there are many aggravating factors (like cruelty, repeat offender, or premeditation), or protection of public interest, then sentences would be retributive or deterrent - for example the death penalty for murder, kidnapping for ransom, or drug trafficking. A long jail sentence, usually with whipping, await persons convicted of armed robbery, snatch thefts, or rape that involves violence.

But if the perpetrator is under-18 then, in law, he is a 'child'. The Child Act 2001 comes into play and the 2 guiding principles are that 'sentences' [technically 'order' since even the word 'sentence' is barred from being used by the Act, see section 91(2)] have to be rehabilitative, and in the best interest of the child. A child can still turn over a new leaf. A child can still be given a second chance.

Applying this to the above hypothetical situation where the girl is 15, the boy is 16, the boy would probably be given a bond of good behaviour, and not be sent to jail. This is, to me, a proper sentence. This is a proper resolution to the simple situation of hormonal teenagers in love and experimenting with sex. To put him in jail would doom him needlessly because our collective national morality is "offended" by the thought of hormonal teenagers in love actually experimenting with sex.

So far, my focus has been on the accused. What of the victim of rape/statutory rape? Does the court not think of her before passing sentence? The law remembers her. Upon conviction, there is a Victim Impact Statement that will be made by the victim, or her family, that the court must consider before passing sentence on the man [see section 173(m)(ii) Criminal Procedure Code].

The public has a right to be angry with the crime of rape. It is a heinous crime. It has even been classified as a war crime. But there are varying shades of the offence/crime of rape - how it happens, who are the individuals, what are their motivations, and what is the conclusion that is best in the particular circumstances of each case.

Yes, we should be angry at rape being the punch line of a joke. That should not be acceptable at all. Yes, we should throw the book at old Casanovas/Lotharios who prey on young girls with impunity.

But we should also accept the fact that fully consensual sex with no violence/threats between experimenting teenagers should not attract the same punitive sentence as a rape where the girl/woman was walking down the road, got pulled into the bushes/vehicle, was raped and beaten and then left like garbage after the act. The 2 situations are different. 
– September 28, 2014.

First appeared at: http://www.themalaysianinsider.com/sideviews/article/statutory-rape-cases-not-black-and-white-jason-kay