Lawyers for Liberty views with concern the controversy surrounding the recent statutory rape of two girls, age 13 and 12 where the perpetrators, age 19 and 21 respectively were not imprisoned but sentenced to a bond of good behaviour by the courts.
It goes without saying children and young people count as among the most vulnerable members of our society and the criminal justice system must strive to protect and support them including ensuring sexual offenders are apprehended and brought to justice. They are rightfully afforded special protection and their best interests should be the main consideration in any legal and policy reform.
Although we are cognisant and agree that an under-age person is not in a position to give consent (age 16 under Malaysian law) and therefore sex with an under-age person is considered rape irrespective of consent, we are of the view the courts should still have a discretion to provide a range of sentencing including imprisonment and in exceptional circumstances, binding over for good behaviour with the accompanying conditions.
While we are not privy to all the facts, the discretion in both cases may have been exercised improperly as the age gap between the perpetrator and victim is rather large and not a situation where both parties are about the same age.
However it would be blinkered to insist the perpetrator should be imprisoned in all statutory rape cases (including for a minimum of five years) regardless of the mitigating factors including the age of the perpetrator, expert/medical reports, the background and facts including their relationship, whether violence or coercion was involved, whether he was a sexual predator, a first offender, of general good character, has a bright future, reasonably believed the girl was older than she was and other relevant considerations.
Although judges do not always get sentencing right, discretion should nonetheless remain as they are in the best position to take into account the various considerations during sentencing rather than be straitjacketed by detailed legislation that is more likely to lead to injustice.
Lawyers for Liberty
3 September 2012