Consent can be factor in statutory rape, says lawyer

Prominent criminal lawyer Baljit Singh Sidhu said the impression that the two men convicted of statutory rape escaped punishment because their jail sentences were suspended is erroneous. 

Baljit said that a bound-over is actually a "severe" and "heavy" penalty as the offender could face multiple charges if he misbehaves during the probation period. 

"They are not getting away scot-free. If (a bound-over offender) commits an offence during the probation period, he will face charges for that offence as well as be punished for the initial offence. It's a heavy penalty," he said.

In fact, he said in the case of the national bowler Nor Afizal Azizan, the bound-over sentence is a "better punishment" than jail time considering the mitigating factors found by the court. 

"The court found no violence and brutality and there was consent, so why should he be sent to jail? Some people end up becoming bigger criminals after spending time in jail," he said when contacted.

Nor Afizal, now 21, was convicted of raping a girl aged 13 years and four months when he was 19 years old. 

Law considers consent

On the matter of consent, Baljit said the Penal Code as revised in 2006 specifically states that consent is a factor to determine the punishment for statutory rape.

Section 376 of the Penal Code states that the minimum sentence if the victim is under 12 years of age is five years in jail and/or whipping, whether or not the victim consented to the act. 

However, no minimum sentence is provided if a victim is above 12 and under 16, and had consented to having sex with the offender.

"Bounding over, though, lies outside the ambit of punishments for this offence, and the court can decide this in extenuating circumstances, usually in the case of young offenders," he said.

Baljit, who was on the Bar Council criminal law committee that provided input to the parliamentary committee which worked on the Penal Code revision in 2006, said that the consent provision was included to take into account consensual sex between teenagers.

"The parliamentary select committee included (then de facto law minister) Radzi Sheikh Ahmad and (Seputeh MP) Teresa Kok (and) took a year, went throughout the country to get input from stakeholders and even went to Australia, UK and Singapore for this purpose," he said. 

Defence of 'youthful indiscretion' 

Meanwhile, lawyer Syahredzan Johan said the present law on statutory rape could be improved by allowing a young person to use "youthful indiscretion" as a defence, as in the United Kingdom.

"It may not be applicable for someone aged above 18, but in the case of two 16-year-olds having sex, or even a 16-year-old girl and a 17-year-old boy, should the boy be sent to jail?" he asked. 

While including the age gap between victim and offender into the legislation such as countries like Finland may be helpful, Syahredzan said such considerations should ideally be left to the court.

"Lawyers can argue that the age gap (is small), that it is a case of experimental young people, which they cannot argue if the offender is 40. 

"But the court must be given discretion to decide based on different circumstances... We cannot say everyone should go to jail," he said.

He added that defence lawyers are likely to now use the Court of Appeal decision on the national bowler in cases of statutory rape, but whether this leads to a trend in terms of court decisions is yet to be seen. 

'Wrong decision'

Nevertheless, Syahredzan opined that the judgment in the case of electrician Chuah Guan Jiu, 22, who was bound over after being convicted of twice raping a girl aged 12 years and 10 months, was likely influenced by the Court of Appeal decision. 

"In the electrician's case, I believe that the judge wrongly decided and was not justified in bounding over the offender," he said. 

He said that there were "material differences" between both cases, including the fact that the electrician's case had gone to full trial, while the bowler had pleaded guilty.

"I would also argue that in the electrician's case there was an element of deception as Chuah had persuaded the girl to skip school and follow him home under the guise that he was ill.

"This does not appear in the case of the bowler," he said.

Baljit, however, is optimistic that the courts will consider each case carefully regardless of the Court of Appeal decision. 

"I am confident that when it comes to this offence (rape), the court protects the public interest jealously," he said.