‘Nonsense’ to set rapists free

Malay Mail (Used by permission)
by Meena Lakshana

A PERSON convicted of statutory rape would not have been able to walk out of the court room in the United Kingdom with a bound-over sentence. 

Anesta Weekes, QC, told The Malay Mail yesterday court guidelines on sentencing for sexual offences, drawn by the Sentencing Council for England and Wales, stipulate an immediate prison sentence for individuals convicted of rape.

“I have never imposed a bound over, which means they (the convicted individuals) walk out of the court room, because the guidelines indicate it should be an immediate prison sentence,” she said.

In an immediate response, former chief justice Tun Zaki Azmi said the two statutory rape cases, whereby a national bowler and electrician were given bound-over sentences despite being convicted of rape, were only “exceptions” and should not serve as precendents.

“These particular cases are exceptional. It cannot be used as a precedent for future cases,” he said.

Weekes serves as a part-time judge in the UK and deals with cases involving serious sexual offences, which includes rape.

She also said that there were no cases in the UK where the consent of a minor had influenced a judge’s sentencing in recent times, saying the point of having laws in place was to protect minors.

“It simply makes our law nonsense if that was done. I cannot imagine a case in the UK in which a judge would comment that he was imposing a lenient sentence because the minor consented,” she said.

“They (minors) can’t give consent at that age so I would have been criticised if I made that comment and it would be treated extremely seriously.

“It would go to our Chief Justice and I think the Chief Justice would want me to give an explanation if I gave a bind over to somebody who was convicted of raping a 12-year-old and if I added that the man was allowed not to go to prison because there was consent.”

She said cases involving serious sexual offences such as rape were dealt with very seriously in the UK where judges and prosecution lawyers are trained to handle such cases.

“You have to go for special training courses before you are allowed to sit as a judge in cases involving serious sexual offences,” she said.

“You learn about statutes, statutes on how to treat vulnerable witnesses in a courtroom.”

Weekes said women and young children were allowed to give evidence from a room connected to the court room by video-link if the judge felt it was appropriate.

“The judge needs to give that warning (to the jury) that this is the court wanting to get the best evidence out of the witness and it has nothing to do with whether or not the accused is guilty,” she said.

However, Weekes said major changes to the way in which sexual cases were dealt with in the UK were implemented several years ago following criticism from women’s groups that “the sentences were far too lenient and it gave the message that the judiciary were not treating it seriously”.

“The sentence range for rape was altered and, secondly, and perhaps more recently, we have a sentencing council guidelines on all offences and includes serious sexual offences,” she said.

“Also, judges are now allowed to say to a jury that they must be careful about the perceptions of men and women involved in rape.”

Weekes said this included a warning from a judge that not all women lied about rape when there had been a delay in reporting such an allegation, and post-traumatic stress often affected the victims and they may not remember exactly what happened.

“Women and children are often reluctant to tell the police that they have been raped, so there is a delay in coming forward to make the allegation but the delay does not equal that they didn’t have a serious and truthful allegation to make,” she said.

Zaki said that ordinarily, a rapist deserved the heaviest sentence.

“If you study all the past rape cases, they get at least 10 years and whipping, which is not even passed in England (I believe so, because they say whipping is barbaric),” he said in an SMS to The Malay Mail.

Bar Council president Lim Chee Wee said the establishment of a sentencing council in Malaysia would greatly promote consistency of sentencing as judges would have guidelines to decide on the appropriate sentence to reflect the degree of the crime committed.

“Consistency and proportionality of sentencing are the two most difficult aspects of sentencing and as both history and recent events demonstrate, these policies are often not upheld and the inconsistencies are prevalent,” he said.

“The sentencing guidelines for individual offences set out sentence ranges reflecting different levels of seriousness and within each range, a starting point for the sentence.”