As rapists walk free, child rights groups demand stiffer penalties

The activists fear the two recent cases will dissuade judges from meting out even the mandatory and minimum five-year sentence for child rape. — Reuters pic

KUALA LUMPUR, Sept 5 — Child rights groups want the federal government to revamp the law to provide for tougher sentencing of convicted sexual offenders as the public continues to rage over the courts’ decision to release two young men found guilty of raping their underage girlfriends last month.

Today, a kindergarten owner found guilty of raping a four-year-old girl was also reported to have escaped mandatory imprisonment and caning with the High Court here overturning his conviction and sentence after saying there was no proof of penile penetration and the victim’s testimony was unreliable.

Several child rights advocates told The Malaysian Insider there were weaknesses in the existing law regarding rape — especially those dealing with minors.

“The law, as it is written and enforced, should be in line with international obligations to protect children,” said Brian Lariche, executive director of Malaysian Child Resource Institute (MCRI).

He welcomed news that the Ministry of Women, Family And Community Development had sought a review of the law on statutory rape after the Court of Appeal last month ruled to overturn 21-year-old national bowler Noor Afizal Azizan’s custodial sentence by reasoning that he had a “bright future” and the sexual act had been consensual even as it upheld his conviction for having sex with a then 13-year-old girl.

The case triggered widespread condemnation among civil society for setting a precedent for convicted child rapists to escape jail. Public uproar grew louder after a Sessions Court released 22-year-old electrician Chuah Guan Jiu — convicted of raping his 12-year-old girlfriend — on a RM25,000 good behaviour bond for three years.

Lariche said the two court sentences “trivialise the crime and which compromise a child’s right to protection from sexual exploitation.”

“The sentencings [sic] are not in line with what is currently stipulated by law and therefore does raise the question of arbitrariness on the part of the judges. ‘Rape’ and the ‘age of consent’ are clearly defined, but in these cases, were not adhered to,” he said.

In Malaysia, the law provides for a narrow definition of rape.

According to Section 375 of the Penal Code, “A man is said to have commit ‘rape’ who... has sexual intercourse with a woman” against her will or without her consent or had gained it under coercion, or if the alleged victim is under 16 years old — the legal age of consent.

Section 376 prescribes a mandatory jail sentence of at least five years and not more than 30 years and whipping for convicted child rapists.

However, judges hold a discretionary power under Section 294(1) of the Criminal Procedure Code to release a first-time offender on probation of good behaviour if they decide there were certain mitigating factors.

“If we leave the law as it is right now, when certain cases pop up, the judges may think that the minimum five year (sentence) is too harsh and be unable to impose anything else except a good behaviour bond,” another child rights advocate, Sharmila Sekaran from Voice of the Children, told The Malaysian Insider.

The local NGO advocates law and policy reforms besides providing training on children’s issues.

“We want alternatives sentencing so that judges can impose harsher sentences on them,” its executive director said, referring to first-time offenders.

Like Larich, Sharmila said current laws were not clear enough to cover the scope of situations that could occur in rape cases.

Dr Hartini Zainudin, a consultant for Yayasan Chow Kit — a non-profit child outreach group based in the national capital’s grittiest street — said merely amending the existing laws concerning statutory rape was not enough and pushed for a “total overhaul that advocates the best interest of the child”.