Statutory rape: 'Can a child consent to sex?'

A women's rights NGO has questioned the plausibility of a child consenting to engage in sexual relations with an older man.

"Legally and morally, can they give consent?" asked Women's Aid Organisation (WAO) executive director Ivy Josiah, when contacted to comment on two cases of suspended sentences meted out to child rapists.

She pointed out that, legally, underaged children cannot give consent and that is why laws like the Child Act 2001 have been enacted to protect minors.

Under Malaysian law, those below the legal majority of 18 cannot get married without parental consent, cannot vote until they are 21 and cannot drive a car until they are 17.

Similarly, pupils and even some university students going on organised trips require permission slips signed by their parents.

Ivy (left) argued that it is the duty of the judiciary to explain how it has come to accept the ‘consent' of a 12-year-old to engage in sex with her 22-year-old "boyfriend".

Even if the child were to agree to sexual relations, she may not be physically and emotionally ready to face possible consequences, Ivy noted.

"Can they handle being pregnant? Can they handle being sick?"

She therefore called for a platform to educate children about sex, provide an avenue where they can talk about the subject openly, and to educate them about the consequences.

While accepting that judges have discretion in passing sentence, she said the courts should explain how those guilty of statutory rape will be "bound over for good behaviour".

"They should explain what it means and how it is going to be implemented. Will they be able to travel? How will they be monitored and who will do the monitoring?"

More importantly, she stressed that the judiciary must explain the "punitive element" in the sentence, as the case has outraged the public with its seeming slap-on-the-wrist approach.

Can of worms?

Her concerns were echoed by Seputeh MP Teresa Kok who said sex with minors is statutory rape under the law, and urged the courts to treat such offences seriously.

"While I agree that judges should be given the discretion to sentence sexual offenders, the courts should not send the wrong message to the public that statutory rapists will (get a light sentence)," she said in a statement.

Ivy and Kok (right) was commenting on a report by English daily The Sunyesterday that the Penang Sessions Court had sparedelectrician Chuah Guan Jiu from jail despite finding him guilty of statutory rape.

Convicted under Section 376(1) of the Penal Code for raping the girl on two occasions last year, Chuah faced up to 20 years' jail and whipping, but was only bound over for three years on a good behaviour bond of RM25,000.

Echoing the Court of Appeal's controversial verdict involving national bowler Nor Afizal Azizan who also escaped a custodial sentence for statutory rape, Sessions judge Nisa Abdul Aziz said Chuah is "young and has a bright future".

The court reportedly found that the sexual acts had been consensual, with no trickery on Chuah's part. It took into account that he was not highly educated, having dropped out of school at Form Two.

Earlier this month, the Court of Appeal bound over national bowler Nor Afizal on good behaviour for five years after overturning the Malacca High Court's five-year jail sentence for his statutory rape conviction.

In its written judgment, the Court of Appeal said this was to give Nor Afizal "another chance in life" in the hope that he would "turn over a new leaf".

Court of Appeal president Md Raus Sharif, who led the three-member bench, however stressed that the decision should not be construed to apply to all young offenders in similar cases.