The Sun
Statutory rape is dealt as ‘rape’ under the Penal Code because the law perceives that when a man/boy has sexual intercourse with a girl under 16, at the time of giving consent, she is unable to understand the nature and consequences of the action.
By making it illegal for an adult to have sex with a child, the law aims to protect the child from adults, especially when there is position of power.
Statistics from Crime Investigation Department show that although more than 90% of the reported sexual crimes involving victims below 18 are solved with the perpetrators (irrespective of age) arrested and convicted, there is an increasing trend in these offences (see table).
The number of child perpetrators involving sexual offences continued to increase from 2007 to 2010. This year, from January to June alone, there are 1,295 cases involving 1,854 perpetrators, of which 324 are child offenders.
According to a source, there were over 600 cases reported and over 800 children aged between 13 and18 years arrested last year (2009).
“From January to May this year, some 200 cases were reported with over 300 child perpetrators arrested for statutory rape cases. However, the number of those charged is not available.”
“Charging an underaged boy for consensual sex with an underaged girl is a rare scenario in the country, despite the number of arrests made on the offence,” said the source.
He said there are many “half truths” and “unfounded fears” among lawyers and social workers that the law unjustly punishes a ‘child’ caught having consensual sex with his underaged girlfriend.
“While the provision of the law in Section 376 of the Penal Code states that any person convicted of rape can be jailed from a minimum of five years to a maximum of 30 years and can be liable to whipping, one has to remember that this would only apply to convicted adults.
“The law shows compassion for those adults who have consensual sex with a girl under 16, as there is no minimum term of imprisonment in such cases, unless the girl is under the age of 12.
Even if there is consent, the minimum five years’ imprisonment is activated,” he said.
Based on previous cases of “juvenile offenders” charged for statutory rape, the source said there are possibilities for the offender to be bound over for good behaviour after being sentenced.
That said, under the law, there are provisions for alternatives to imprisonment for convicted offenders.
“Child offenders found guilty of offences including rape will be sentenced under the Child Act. Imprisonment is the last resort for the convicted minor as provided in Section 96 (Restrictions on order of imprisonment) of the Act," which states that a child below 14 shall not:-
> be ordered to be imprisoned for any offence; or
> be committed to prison in default of payment of a fine, compensation or costs.
> be ordered to be imprisoned if he can be suitably dealt with in any other way whether by probation, fine or being sent to a place of detention such as the Henry Gurney School.
Family law practitioner Honey Tan, who is also with non-governmental organisation Pusat Kesedaran Komuniti Selangor (Empower), pointed out that Section 91 of the Child Act provides powers of Court for Children on proof of offence.
If a Court for Children is satisfied that an offence has been proved, it has the power to order the child to be-
> admonished and discharged;
> discharged upon his executing a bond to be of good behaviour and to comply with certain conditions;
> placed in the care of a relative or other proper person for a specified period with certain conditions;
> fined;
> placed under a probation order under section 98;
> sent to an approved school such as the Henry Gurney School;
> (if male) whipped with not more than 10 strokes of a light cane.
Despite the laws providing leniency for offenders, Tan said that prevention is still the best cure and one of that is sex education.
She said that measures like community services are for “youthful offenders”, who are aged 18-21, which is provided under Section 293 of the Criminal Procedure Code.
Lawyer Datuk Yasmeen Shariff, who has been practising Family Law for 20 years, pointed out that “there were many cases of statutory rape, where the girls stood by the boys to defend them but legally they are in a position where they cannot do much.
“There are programmes by government and NGOs to encourage the young to participate and equip themselves with the right knowledge to prevent them from going astray," said Yasmeen.
She also emphasised strong family values where parents and children discuss “taboo” subjects so that curious children would not seek “wrong” sources like peers or the Internet.
“"Boys should be taught to respect girls and girls should learn to say no (to pre-marital sex). Both sexes should be taught to respect their bodies. Pre-marital sex is not just a crime but goes against all religious and moral teachings,” she said.
However when “things” do happen, Yasmeen said parents should provide the needed support and not abandon their children.
"Abandoning them in their time of need might force them elope, run away from home, have back-lane abortions or abandon their babies," warned Yasmeen.
PETALING JAYA (Aug 8, 2010) : No matter what the age of the perpetrator, rape is a heinous crime. However, in cases of underaged pepetrators where there is consensual sex between the couple involved, imprisoning the minor offender for statutory rape should be the last resort.
This is the opinion of legal practitioners in Malaysia, who have handled minors in statutory rape cases.
In Malaysia, it is a crime to have sex with an under-aged girl, even if she had willingly consented to it. The law assumes that a person under 16 is legally incapable of consenting to sexual intercourse.
Thus, “consensual sex” by the under-16 girl is not accepted as a defence in minors charged with statutory rape.
The Child Act 2001, enacted to fulfil its obligation under the Convention on the Rights of the Child (CRC), defines anyone under the age of 18 as a ‘child’.
This is the opinion of legal practitioners in Malaysia, who have handled minors in statutory rape cases.
In Malaysia, it is a crime to have sex with an under-aged girl, even if she had willingly consented to it. The law assumes that a person under 16 is legally incapable of consenting to sexual intercourse.
Thus, “consensual sex” by the under-16 girl is not accepted as a defence in minors charged with statutory rape.
The Child Act 2001, enacted to fulfil its obligation under the Convention on the Rights of the Child (CRC), defines anyone under the age of 18 as a ‘child’.
Statutory rape is dealt as ‘rape’ under the Penal Code because the law perceives that when a man/boy has sexual intercourse with a girl under 16, at the time of giving consent, she is unable to understand the nature and consequences of the action.
By making it illegal for an adult to have sex with a child, the law aims to protect the child from adults, especially when there is position of power.
Statistics from Crime Investigation Department show that although more than 90% of the reported sexual crimes involving victims below 18 are solved with the perpetrators (irrespective of age) arrested and convicted, there is an increasing trend in these offences (see table).
The number of child perpetrators involving sexual offences continued to increase from 2007 to 2010. This year, from January to June alone, there are 1,295 cases involving 1,854 perpetrators, of which 324 are child offenders.
According to a source, there were over 600 cases reported and over 800 children aged between 13 and18 years arrested last year (2009).
“From January to May this year, some 200 cases were reported with over 300 child perpetrators arrested for statutory rape cases. However, the number of those charged is not available.”
“Charging an underaged boy for consensual sex with an underaged girl is a rare scenario in the country, despite the number of arrests made on the offence,” said the source.
He said there are many “half truths” and “unfounded fears” among lawyers and social workers that the law unjustly punishes a ‘child’ caught having consensual sex with his underaged girlfriend.
“While the provision of the law in Section 376 of the Penal Code states that any person convicted of rape can be jailed from a minimum of five years to a maximum of 30 years and can be liable to whipping, one has to remember that this would only apply to convicted adults.
“The law shows compassion for those adults who have consensual sex with a girl under 16, as there is no minimum term of imprisonment in such cases, unless the girl is under the age of 12.
Even if there is consent, the minimum five years’ imprisonment is activated,” he said.
Based on previous cases of “juvenile offenders” charged for statutory rape, the source said there are possibilities for the offender to be bound over for good behaviour after being sentenced.
That said, under the law, there are provisions for alternatives to imprisonment for convicted offenders.
“Child offenders found guilty of offences including rape will be sentenced under the Child Act. Imprisonment is the last resort for the convicted minor as provided in Section 96 (Restrictions on order of imprisonment) of the Act," which states that a child below 14 shall not:-
> be ordered to be imprisoned for any offence; or
> be committed to prison in default of payment of a fine, compensation or costs.
> be ordered to be imprisoned if he can be suitably dealt with in any other way whether by probation, fine or being sent to a place of detention such as the Henry Gurney School.
Family law practitioner Honey Tan, who is also with non-governmental organisation Pusat Kesedaran Komuniti Selangor (Empower), pointed out that Section 91 of the Child Act provides powers of Court for Children on proof of offence.
If a Court for Children is satisfied that an offence has been proved, it has the power to order the child to be-
> admonished and discharged;
> discharged upon his executing a bond to be of good behaviour and to comply with certain conditions;
> placed in the care of a relative or other proper person for a specified period with certain conditions;
> fined;
> placed under a probation order under section 98;
> sent to an approved school such as the Henry Gurney School;
> (if male) whipped with not more than 10 strokes of a light cane.
Despite the laws providing leniency for offenders, Tan said that prevention is still the best cure and one of that is sex education.
She said that measures like community services are for “youthful offenders”, who are aged 18-21, which is provided under Section 293 of the Criminal Procedure Code.
Lawyer Datuk Yasmeen Shariff, who has been practising Family Law for 20 years, pointed out that “there were many cases of statutory rape, where the girls stood by the boys to defend them but legally they are in a position where they cannot do much.
“There are programmes by government and NGOs to encourage the young to participate and equip themselves with the right knowledge to prevent them from going astray," said Yasmeen.
She also emphasised strong family values where parents and children discuss “taboo” subjects so that curious children would not seek “wrong” sources like peers or the Internet.
“"Boys should be taught to respect girls and girls should learn to say no (to pre-marital sex). Both sexes should be taught to respect their bodies. Pre-marital sex is not just a crime but goes against all religious and moral teachings,” she said.
However when “things” do happen, Yasmeen said parents should provide the needed support and not abandon their children.
"Abandoning them in their time of need might force them elope, run away from home, have back-lane abortions or abandon their babies," warned Yasmeen.
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