Sunday 12 August 2012
Public outrage as national bowler escapes jail for sex with minor
August 12, 2012
KUALA LUMPUR, Aug 12 — A 21-year-old national bowler who was let off with a RM25,000 bond instead of being jailed after he pleaded guilty to statutory rape has sparked a firestorm online over the court’s message on sex with minors even as it raises questions about the Penal Code and other criminal laws.
On microblogging site, Twitter, criticism against the appellate court’s decision grew so heated it spurred the creation of a hashtag movement — #BrightFutureRapeOK — on the subject.
“How ‘bright a future’ really?.....even if he brings back the olympics gold medal I’d still want justice be served,” said a Twitter user who called herself Adibah Noor on her account, ?@adibahnoor.
“Malaysian rapist walks scot-free for being a national bowler. Why. Is. My. Country. So. Messed. Up,” tweeted another cyber citizen identified as Davina Goh on her account, ?@duuuhvina.
“Justice gets bowled over #BrightFutureRapeOK,” Irwan Abdul Rahman said on his account, ?@irwanargh.
They were responding to Court of Appeal President Tan Sri Raus Sharif who was reported by state news agency Bernama to have agreed with Noor Afizal’s defence lawyer that public interest would not be served if the athlete was sent to jail as he had a bright future. The decision by the three-man panel — delivered last Wednesday — was unanimous.
The Court of Appeal had ruled to reinstate a Sessions Court sentence to bind over the athlete for good behaviour on a RM25,000 bond for five years after he pleaded guilty to raping the girl, then aged only 13, at a hotel in Ayer Keroh, Malacca at the time of the incident in 2009. Noor Afizal was reported to be 18 then.
Some commentors even took to branding Noor Afizal a paedophile-rapist as they slammed the judiciary for practicing double-standards and giving out what one tweeter suggested was a “licence” for an adult to have sex with a child.
“Whoaa, tuan haji Bright Future. Now that’s 1 big licence to bonk a minor...hehehehe,” said Ahmad Kerp on his Twitter account, ?@Mr_Kerp.
Statutory rape is when an adult man has sex with a girl under the age of 16, with or without her consent. It is punishable with a jail term of up to 20 years and whipping, as provided under section 375 of the Penal Code.
In Malaysia, a man is considered a full-fledged adult once he reaches 18 years of age and if he commits a crime, he will be judged as a grown-up and not a juvenile.
Child and women advocacy groups, however, appeared have mixed reactions over the issue.
Two children’s rights groups, Childline Malaysia and Yayasan Chow Kit — among the first to slam the Court of Appeal decision — accused the judiciary of sending the wrong message to the public on child sex.
“With due respect to the experience and discretion of the judges, we are concerned that a non-custodial sentence handed down to an adult offender, would trivialise the severity of the crime of statutory rape, and the precedence this would set for adult offenders in current and future statutory rape cases.
“Furthermore, the ambiguity of the reported mitigating reason of the offender having a ‘bright future’ is worrying in the possibility that a child’s right to protection and justice may be sacrificed, despite being a victim,” they said in a joint-statement on Childline’s Facebook page, a day after the Court of Appeal delivered its judgment.
They highlighted that a girl below 16 years old — the age of sexual consent — is not mature enough to make an informed decision about having sex, and requires the law to protect her against sexual predators.
Between 2006 and 2010, more than half a reported 16,159 rape cases involved girls below the age of consent, Childline said citing the Deputy Inspector-General of Police Datuk Seri Khalid Abu Bakar.
Some women groups said they were alarmed by the “light” sentence Noor Afizal was given.
“Our criminal justice system has failed our daughters and granddaughters when it trivializes an act of violence through the sentence that is meted out,” said Lee Wei San, the senior programme officer in the All Women’s Action Society (AWAM) said in an emailed reply to The Malaysian Insider.
“It has a dehumanising effect which normalises sexual violence and justifies the use (or abuse) of power instead of addressing the needs of our daughters and granddaughters for respect, love and most of all, justice,” she added.
Other women groups were more guarded in expressing outrage.
The Joint Action Group For Gender Equality (JAG), an umbrella body representing six women NGOs — Sisters In Islam (SIS), Women’s Aid Organisation (WAO), AWAM, Women’s Centre for Change, Penang (WCC), Perak Women for Women Society (PWW) and Persatuan Kesedaran Komuniti Selangor (EMPOWER) — merely urged the judges to clarify their reasoning in sentencing Noor Afizal.
The Malaysian Insider understands this is due to the rising rate of minors indulging in sex with their sometimes older partners, or as one women’s rights activist said, colloquially — “Suka sama suka”to mean consensual sex.
“On the surface, the judgement appears to hint at the application of a double standard by implying that anyone with the right ‘credentials’ can commit a crime, and get away with a rap on the knuckles.
“Does it mean that an individual who is perceived to have no future would get a heavier sentence?” JAG said in a joint-statement last Friday as they asked clarify their judgment.
Lawyers told The Malaysian Insider that the court’s decision that provoked such a public uproar is actually allowed in law and that it was commonly invoked by lawyers in defence of their clients who were first time offenders, even if it was not so commonly granted.
Criminal lawyer Sreekant Pillai said that even though section 376 of the Penal Code prescribes a mandatory jail sentence for those convicted of statutory rape, judges held a discretionary power under section 294(1) of the Criminal Procedure Code to release a first time offender on a probation of good behaviour if they decided there were certain mitigating factors.
“Section 294 is something that is being used by lawyers to defend their clients every day because it is available to them. It is a second chance section,” Pillai said.
He added that the provision in the criminal law is not “an outright get-out-of-jail scott-free card” as it was not easily meted out and came with conditions.
Should the convicted offender be found guilty of another offence again within the probation period, he would immediately have to serve a jail sentence besides his bailor having to pay up the bond.
“Don’t they deserve a second chance?” he asked.
Pillai said it was not so easy to criticise the Court of Appeal’s decision as as they must have certain reasons to decide it was better to keep Noor Afizal out of prison than inside.
Civil liberties lawyer, Syahredzan Johan, echoed similar views.
He pointed out that the public should not be so quick to bay for blood and assume that the penalties for statutory rape was created to protect children.
“I would not be so fast to assume that the offence of statutory rape was formulated to protect children.
“Ponder this; a grown woman having sexual intercourse with a boy can never be guilty of statutory rape. How can it be said that this offence was designed to protect children?” he said.
Syahredzan said the recent case showed there was an urgency to relook Malaysia’s archaic and narrow definition of rape under the law, and update the provisions based on current sensibilities.
“Oh definitely we need to relook at our rape laws, its outdated! Like how a husband can never commit rape on his wife. Or how statuory rape does does not cover a woman who has sexual intercourse with a child. Or how the law does not provide for what we call a ‘young man’s defence’ as in the UK, where a young person who honestly thought the female partner was of age only to find out she’s below 16.
“I would go further and say that we need to relook at our Penal Code offences again and review them,” he told The Malaysian Insider in an email.