Published by The StarOnline on 30 August 2012.
NOW that their trials are over, former national youth squad bowler Noor Afizal Azizan can go on to fulfil the promise of his bright future and electrician Chuah Guan Jiu can focus on his fixed job and many years ahead. Through it all, no one spoke of the 13-year-old girl Noor Afizal took to a hotel to spend the night with, or the 12-year-old schoolgirl who was “coaxed” to go to her 21-year-old electrician boyfriend's flat instead of to school because he said he was too sick to take her.
These were prepubescent girls who were deemed to have consented to sex with the older boys they were dating and Court of Appeal president Justice Raus Sharif wrote in his written judgment that Noor Afizal had not “tricked the girl into submitting to him”.
In the electrician's case, Sessions judge Sitarun Nisa Abdul Aziz also thought the “sexual act was consensual”, even though DPP Lim Cheah Yit recounted how the girl had repeatedly asked Chuah to take her to school. If she did give consent, there was certainly trickery and fraud involved.
The fact remains that the girls were 12 and 13, children barely out of primary school. They are not old enough to be able to legally buy cigarettes, or even obtain medical treatment if they had contracted sexual transmitted diseases.
The law on statutory rape was meant to protect these very girls. Section 375(g) of the Penal Code states unequivocally that a man has committed statutory rape if he has sexual intercourse with a girl under 16 years of age, with or without her consent.
It is rooted in the presumption that girls below 16 have not attained the mental maturity to consent to sex, and this law was enacted to protect children from abuse. It places the onus on those around her to not have sexual intercourse with her, even if she gives consent, because she is not deemed mature enough to give consent.
In other words, the older guys should have known better. Noor Afizal and Chuah were found guilty of raping the underaged girls, but were not jailed. They were bound over for five years and three years respectively on a RM25,000 good behaviour bond.
The public uproar has been over how these young men got away with a slap on the wrist, and how the emphasis has been on not blighting their future.
Our teenagers are growing up inundated with overt sexual messages from the media and the Internet, without the benefit of a full-fledged sex education curriculum, or avenues to get answers. Clearly, our young people are having sex with each other but there is a line drawn by the law. And that is sex with girls below 16 children is off limits, even to their peers.
By letting Noor Afizal and Chuah off lightly, are the courts sending out mixed signals? Are they saying these two girls aged 12 and 13 are capable of giving consent for sex, and are they saying future good behaviour is sufficient punishment for having sex with minors? What is the message that teenage boys and younger men are getting? At the root of it all, this is about protecting our children boys and girls.
A 12-year-old girl was lured by a man twice her age into his flat, and coaxed into having sex with him, and he got away with a promise to behave himself for the next three years. Where does that leave her? What about her worth? What are we doing for these two girls? How do we protect other naive young girls from being sweet-talked by an older teen into a sexual relationship if he knows he could be found guilty of statutory rape but walk away with a promise to behave? If we do not uphold unequivocally our intolerance of sex with underaged girls, what does that say about us?
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Adult women especially if they are less educated and financially dependent have problems saying “no” to their boyfriends and husbands sometimes even fathers uncles and brothers. Female employees often have to say “yes” to their bosses or risk losing their jobs. If these women well above the legal age have difficulties in turning away sexual advances what more a 12 or 13-year-old girl? This is why the statutory rape law exists. It presupposes that an underage person cannot have the wherewithal to refuse sex with an older person. Even if the person is only a few years older. And if the younger person is female growing up in a society where men are assumed to always hold more power in any relationship then what choice would she have but to say “yes”?
Suhakam has voiced “great concern” over sentences meted out recently on two offenders guilty of statutory rape, saying they may not have protected the interest of the victims. “Whether the rights, protection and best interests, not to mention the future, of our minors have been and will be upheld and safeguarded in cases involving statutory rape is now doubtful in the light of those sentences,” said the human rights commission’s chairman Hasmy Agam.
Hasmy said that Suhakam was alarmed that the consent of the child victims appeared to be one of the mitigating factors in both cases, though he noted that there had been similar sentences in the past in cases of statutory rape committed by young first offenders... He said that the vulnerability of a child was also recognised by the Convention of the Rights of the Child (CRC) “which states, inter alia, that the child by reason of his/her physical and mental immaturity needs special safeguards and care, including appropriate legal protection.” “It is also of great concern that the lenient sentences meted out might send the wrong message to would-be offenders, thus would not be an effective deterrence for statutory rape cases,” he argued.
Sebuah NGO yang memperjuangkan hak wanita mempersoalkan kemunasabahan seorang kanak-kanak memberi keizinan untuk melakukan hubungan seks dengan seorang lelaki yang lebih tua. "Di segi perundangan dan moral, bolehkah mereka memberi keizinan itu?" soal Pengarah Eksekutif Pertubuhan Pertolongan. Wanita (WAO), Ivy Josiah, ketika dihubungi untuk mengulas mengenai dua kes penggantungan hukuman yang dijatuhkan ke atas perogol kanak-kanak. Beliau menegaskan bahawa, di segi undang-undang, kanak-kanak di bawah umur tidak boleh memberi keizinan itu dan itulah sebabnya undang-undang seperti Akta Kanak-Kanak 2001 digubal untuk melindungi mereka.
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