When rap for rape is too low

The question of when to be lenient in rape is not just touchy but perplexing and rather subjective.

RECENT court decisions which saw convicted rapists get away with non-custodial sentences must call into question the kind of legal system that permits this to happen.

The public at large is understandably outraged that two rapists have got away without jail sentences when the law – Section 376 of the Penal Code – under which they were charged provided for up to 20 years in jail and whipping.

The courts seem to have been swayed by the view that since there was consent, there was no force used. Since there was remorse, they could use Section 294 of the Criminal Procedure Code which allows those guilty to be bound over instead of undergoing custodial sentences.

Section 375 of the Penal Code states the conditions under which rape is committed.

One of those conditions is when sexual intercourse takes place with or without the consent of a girl when she is under 16 years of age, commonly called statutory rape.

Punishment for rape is set out under Section 376 which states plainly that whoever commits rape will go to jail for not less than five years and not more than 20 years and shall also be liable to whipping.

The courts, including the Court of Appeal, however seem to have used the provisions of Section 294 of the Criminal Procedure Code for first offenders, part of which is as set out below:

"When any person not being a youthful offender has been convicted of any offence punishable with imprisonment before any Court if it appears to the Court that regard being had to the character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or to any extenuating circumstances under which the offence was committed it is expedient that the offender be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties and during such period as the Court may direct to appear and receive judgment if and when called upon and in the meantime to keep the peace and be of good behaviour."

Section 294 has been used by the Court of Appeal to justify its decision in the rape case involving national youth squad bowler Noor Afizal Azizan who was bound over for RM25,000 to be of good behaviour for five years after he pleaded guilty to raping a girl aged 13. He was 19 at the time.

Following upon Noor Afizal's case earlier this month, two days ago mechanic Chuah Guan Jiu avoided custodial sentence when he was found guilty of raping a 12-year old girl when he was 21. The Sessions Court judge ordered Chuah to be bound over for three years on a RM25,000 good behaviour bond.

While the law seems to allow latitude for judges in almost any case of first offenders by using Section 294, the public will naturally be quite upset if it goes against what it perceives as justice.

Notwithstanding the Court of Appeal's written judgment in the Noor Afizal case, there are legitimate concerns that are raised by the judgments.

First, the two rapists in this case were adults, over the age of 18, when they committed the offences.

Second, the offence was inflicted upon girls who were minors whom society looks upon as children. It does not mean that a person is no longer a minor on attainment of sexual maturity.

Third, such sentencing is likely to encourage similar behaviour among more adults who could plead for leniency under Section 294 as first-time offenders who have other redeeming qualities.

Fourth, there was quite a difference in age between the accused and the victim. For the first case, the difference was six years (19 and 13) and in the second case nine years (21 and 12).

As young adults, it would be a stretch to imagine that both rapists did not think they were dealing with little more than children.

The issue of consent certainly arises in terms of mitigation but many would disagree that it carries so much weight that Section 294 should be applied to this case.

Clearly society at large feels that a girl of under 16 does not have sufficient maturity to decide on sexual matters.

It is to protect them that the law has decreed that a person commits rape when he has sexual intercourse with a girl below 16, with or without consent.

The matter can be considered differently if both parties are under 16, in which case the provisions for youthful offenders would apply. But to make allowances for an adult who rapes a minor is stretching the law a bit too far.

One of the concluding remarks for the Noor Afizal case by the Court of Appeal in its judgment was this:

"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 had not shown any remorse to his act or there is no guarantee that he will not be committing the same offence in 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."

There will be many who disagree with that simply because they do not consider rape a trivial offence. They will disagree too over whether the offender was a "young boy".

It looks like the question of when to use Section 294 is not only touchy and perplexing it is quite subjective – perhaps too subjective.

It remains to be seen if the Attorney-General will call for a review of the Court of Appeal's decision. If that fails and if the public still remains indignant, the only recourse may be to change the law to stop Section 294 being used to avoid custodial sentences in cases of serious offences such as rape.

It looks like it may have to come to that.

> P. Gunasegaram is NOT a lawyer.

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