Friday, August 10, 2012

Wa Lau! Now If You Commit Statutory Rape You Might Just Be Bound Over?

A few days ago, a panel of three learned Court of Appeal judges set free a man alleged to have committed statutory rape on a 13 year old girl by binding him over for good behaviour.

All judges are learned people. So are lawyers, who address each other in court as my learned friends.

Now, nobody is so churlish as to bemoan their learnedness. After all, these people must have burnt enough hours of the mid-night oil to have earned their scrolls, and our respect, in the first place.

Apparently, the learned judges decided to set the offender free because they reasoned that, agreeing with the defence counsel's argument, public interest would not be served by a custodial sentence as the offender, who is a national bowler, had a bright future ahead of him.

So, if an offender has a bright future (don't we all?), the law does not apply and he can in effect commit just about any crime and get away with it with just a binding over and a slap on the wrist?

We do not know whether or not the court had taken other factors into consideration, but if you look at the law on statutory rape that is, rape of a minor below 16 years, consent is irrelevant.

And the punishment upon conviction for committing statutory rape, is a mandatory custodial sentence. No two ways about it!

This is what section 375 of the Penal Code says on the offence of rape

A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions.....(f) - With or without her consent, when she is under sixteen years of age

The code goes on to prescribe in section 376 under Punishment for rape


Whoever commits rape shall be punished with imprisonment for a term not less than five years and not more than twenty years, and shall also be liable to whipping

Note: the emphasis on the words "shall" and "with imprisonment" are mine.

The word "shall" means mandatory in legal parlance, so a judge or court does not have a discretion here to impose a sentence other than a custodial one on a conviction for rape. At least, this is what lawyers and judicial people are are supposed to understand.

Now, had the operative word  been "may", or phrase been "shall be liable to" than a judge or court does have some discretion here.

In addition, a person convicted for rape "shall also be liable to whipping" that is, he may also been sentenced to be canned.

Under Malaysian law, only certain persons are exempted from being whipped for example: females, men aged 50 and above, persons below 10, the insane and those deemed not fit to be caned by a medical officer.

So, wa lau! what's happening?

So, if you have a bright future, just go ahead and have some fun?

Note2: It is true that a judge or court has the power to make a binding over order under the Criminal Procedure Code (CPC). But it is my view that this was not an appropriate case for making such an order. Sexual offences against a minor are serious offences. Public interest is not served by letting off a rapist if the only extenuating circumstance cited by the court was that the offender had a bright future ahead of him. This would in fact be putting a private interest ahead of the public interest to protect a minor against sexual abuse.

Further, this was a case where the prescribed punishment is mandatory imprisonment and it would defeat its very purpose were a binding over order made instead. It would have been different were the punishment prescribed a permissive as opposed to a mandatory one. For example: 'Whoever commits rape may be punished with....or shall be liable to ..." where in several decided instances, it had been held that the phrase "...shall be liable to..." gave the court the discretion to deal with an accused under s 294 of the CPC to a binding over order.

Were the court minded to be sympathetic, it could have had sentenced the offender to the lowest custodial term, that is five years. It would have sent the correct message to would be child rapists out there and both public interest and the interest of the offender would have been well served.

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