Wednesday, August 29, 2012

Prison Sentence No Longer Mandatory For Statutory Rape?

Another youth has escaped imprisonment for committing statutory rape on a 12 year old girl.

The Star 29Aug 2012

There had been a public uproar when a former national youth bowler had earlier been bound over by the Court of Appeal for committing statutory rape on a 13 year old minor.

Of course people are more concerned now

I had written a post earlier on why I thought it was wrong for a court or judge to consider section 292 of the Criminal Procedure Code (CPC) to bind over an offender convicted of statutory rape and I don't wish to go into detail here.

Suffice it be said here that where the prescribed punishment for an offence is mandatory imprisonment, the court or judge cannot and should not resort to s 294 CPC to order a binding over instead.  Otherwise, it would make a mockery of the whole purpose of prescribing a mandatory punishment.

In the latest case I suppose the sessions court, a court subordinate to the Court of Appeal, had no choice but to follow the precedent set by the Court of Appeal.

The earlier case of the national youth bowler involved sex with a 13 year old and the latter case a 12 year old minor.

In both cases, it seemed that the fact sex was consensual was a factor the courts had taken into consideration in binding over the offenders instead of imposing a jail sentence, besides that the offenders were youthful and/or first time offenders and had a future ahead of them (who doesn't?)

What if the minor was under ten, say?

What I am concerned about is whether our learned (?) judiciary are correctly reading and applying the law or not.

I am also concerned that what might follow is that more will escape imprisonment for committing statutory rape and the message that we are sending out is that it is alright to commit rape on a minor so long as it was consensual and you were a youthful or first time offender or that you have "a future"(whatever that means and who doesn't anyway).

The funny thing is that as far as the offence of statutory rape is concerned, consent is irrelevant.

Right, I have no objection nor difficulty accepting that when it comes to the consideration of punishment for statutory rape, a court or judge can take consent into consideration as a factor in imposing a sentence, but not that a mandatory prescription of imprisonment can be ignored.

If this were so, we might as well do away with the punishment for committing statutory rape as far as the first-time/youthful offender is concerned. Then we are saying that there is nothing wrong for a youthful/first-time offender to go ahead commit statutory rape but not so for a less youthful offender and certainly not for a repeat offender.

How clever or confused that must be!

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