Should this “rapist” really go to jail?

A different perspective on sex with a minor

Social media is abuzz about the story of a national ten-pin bowler who had his sentence of being “bound over” on good behaviour for 5 years restored by the Court of Appeal here.

The facts

It would appear that the bowler, when aged about 18 or 19, had consensual sex with a girl who was then aged 13 years and 4 months. After the girl’s father gave evidence, the bowler changed his plea to one of guilty and after what seem to have been an impassioned plea in mitigation, the bowler was sentenced to being bound over. It was reported in Harian Metro as follows:-

Semalam ditetapkan untuk perbicaraan hari pertama kes itu, namun selepas saksi pendakwaan pertama iaitu bapa mangsa memberi keterangan, tertuduh melalui peguam bela Azrul Zulkifli Stork memberitahu mahkamah dia mahu menukar pengakuannya.

Abu Bakar dalam penghakimannya turut meneliti semua fakta kes yang dikemukakan Timbalan Pendakwa Raya, Ifa Sirrhu Samsudin serta rayuan peguam.

Mengikut pertuduhan, Nor Afizal didakwa merogol gadis berkenaan yang ketika kejadian berusia 13 tahun empat bulan antara jam 12.30 pagi hingga 5 pagi, di bilik bernombor 225, tingkat dua, Hotel Kings, Ayer Keroh pada 5 Julai 2010.

Tertuduh didakwa mengikut Seksyen 376 Kanun Keseksaan jika disabitkan boleh dipenjara sehingga 20 tahun dan dikenakan sebatan.

Sementara itu, Azrul merayu mahkamah menggunakan budi bicara peruntukan Seksyen 294 Kanun Acara Jenayah kerana tertuduh adalah pesalah muda yang perlu diberi peluang selain dia masih atlet dan itu adalah kesalahan pertamanya.

Beliau juga menyatakan tertuduh adalah atlet yang mengharumkan nama negara dan negeri serta menanggung keluarga kerana ibu bapanya tidak bekerja.

Katanya, kepentingan awam juga membawa maksud tertuduh diberi peluang kerana mempunyai masa depannya cerah selain pertuduhan itu adalah rogol bawah umur dan tiada unsur paksaan.

Ifa bagaimanapun meminta mahkamah menjatuhkan hukuman berat ke atas tertuduh sebagai pengajaran atas perbezaaan usianya 19 tahun manakala mangsa pula 13, ketika kejadian.

Katanya, sebagai atlet, kesalahan dilakukan tertuduh turut mencemarkan imej negara dan negeri.

The Prosecution appealed against the sentence, arguing that it was too lenient. Apparently, the Melaka High Court imposed a 5 year sentence. That sentence was overturned by the Court of Appeal earlier this week, and the order that the bowler be bound over by the Sessions Court was restored. Since this matter started in the Sessions Court, no further appeal can be made.

(The New Straits Times reports that the bowler’s counsel said the bowler was actually 18 at the time of the offence, not 19. The Sun and the Malaysian Insider also report the story.)

There is now an uproar over this. A few points, however, should be noted.

Rape and statutory rape

1.What the bowler did was undoubtedly “rape”, as defined in what is now section 375(g) of the Penal Code.

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions…

(g) with or without her consent, when she is under sixteen years of age.

It’s called “statutory rape”, because it does not matter if the woman consented or not. Traditionally, rape means forcing a person to have sex.

But note that the girl was 13 years and 4 months old at the time (as seen from the Harian Metro article) whilst the boy was 18 or 19, not 21 as Charles Santiago – and many others I am sure – seem to think. (He was 21 when the Court of Appeal heard the matter. So the girl is now 15 or 16).

UPDATED: Charles Santiago has corrected his opinion piece after the publication of this article.

So, effectively, what this case is all about is a Form 6 boy who had sex with a Form 1 girl. The law says he is a rapist. Perhaps he was a smooth talker, or perhaps the girl looked much older and they were experimenting. I don’t know. It was his first offence, as far as we know, and it looks as if it was completely consensual (though, of course, one could argue that the girl’s consent is of little value given her tender age).

Young Man’s Defence

The law in Malaysia does not allow any leeway even when the age difference between the offender and the victim in a statutory rape case is small. However, many jurisdictions have seen the injustice in this, and their laws reconize that there is a different in kind in the nature of the offence when an older man has sex with a young girl, and when two young people are experimenting. So, for example, in England, section 6(3) of the Sexual Offences Act 1956provides that

(3)  A man is not guilty of an offence under this section because he has unlawful sexual intercourse with a girl under the age of sixteen, if he is under the age of twenty-four and has not previously been charged with a like offence, and he believes her to be of the age of sixteen or over and has reasonable cause for the belief.

This was called the “young man’s defence”. The law in England has been amended, but it would appear not yet in force. This defence will soon be open to any man, so long as he reasonably believed that the woman was over the age of 16. See section 9 of the Sexual Offences Act 2003 (not yet in force). Significantly, the burden remains with the prosecution to prove that the man could not have reasonably believed that the girl was over 16, and not for the accused to prove this. (For some historical background, and the impetus for this legislative change, seeRegina v K [2001] UKHL 41.)

In England, the Crown Prosecution Service summarizes their guidelines on when prosecutors should prosecute offences such as this by stating that “a man who is considerably older that the girl is likely to be prosecuted, especially if he owed her a duty of care; whereas it may not be necessary to prosecute a young man with whom the girl has been having a consensual relationship.”

The young man’s defence is not available in Malaysia, nor is there a defence to a man who reasonably believes that the person he is having sex with is a woman aged over 16. As long as the victim is under 16, it is an offence, presumably even if the “rapist” is also under 16.

Get some perspective before condemning

So, the bowler has still been convicted of an offence. The only thing is that his sentence has been restored to the sentence originally imposed on him. He has not been sent to jail for 5 years for what some may call a youthful indiscretion.

From the newspaper reports, we cannot know whether or not this man is a sexual predator. We do know that he is very young, and possibly has a bright future. We don’t know whether he believed the girl was older than she was, and whether that belief was reasonable. We do know that jail time would certainly have destroyed his life, job prospects and bowling career. All because he had consensual sex with a Form 1 girl when he was in Form 6.

Bear all this in mind before you go and condemn the Court of Appeal judgment restoring the original sentence.

LB: This has not been the first time Shanmuga K has embroiled himself in an attack on women’s groups. Read his Oy! Women! Wake Up and Smell the Coffee on what is now section 375(f) of the Penal Code [at that time, a proposed section 375(g)].

- Loyarburok