Media Statement
Rape Laws: Unsatisfactory Sentencing
Recent cases have highlighted once again the difficulties and inadequacies of our rape laws. Not only is there discrepancy between different laws in this country, there are also the much-documented difficulties in obtaining a conviction.
Besides suffering the trauma of being raped, the victims are further traumatised by the medical examination, the endless questioning and the whole legal process not to mention the stigmatisation by society. There is also the general attitudinal problem which sees rape victims being blamed by others, and these may or may not include judges, police and others involved in the prosecution of the rapist. All of these problems intensify when the rape victim is mentally or physically disabled.
According to The Star (4 January 2001), a grandfather, 73, was sentenced to two five-year jail terms (to run concurrently) on two counts of raping a 15-year- old mentally disabled girl. The girl subsequently gave birth to his child. He is out on bail pending an appeal to the High Court.
Last year, a 46-year-old man was charged under the Women and Girls Protection Act 1973, and jailed for four years and fined RM 2,000 in default six months' jail for the rape of a 12-year-old mentally disabled girl (The Star, 26 October 2000). He raped her several times. The girl later underwent an abortion.
A month later, a 28-year-old man was charged under Section 376 of Penal Code and was jailed for 14 years and ordered to be whipped six times for raping his 13-year-old sister-in-law (The Star, 9 November 2000). He raped her several times.
It is deemed statutory rape when a person has sex (consensual or not) with a girl who is less than 16-years-old.
A person can be charged with rape under Section 376 of the Penal Code, which carries a jail term of up to 20 years (minimum of 5 years) and possible whipping upon conviction or with a lesser charge of 'carnal knowledge' under the Women and Girls Protection Act 1973. Section 16 (1)(1) of this latter legislation provides for a jail term of a maximum of 5 years or a RM 10, 000 fine or both upon conviction.
In each case of rape, it is not the victim who elects which charge is made against the offender. She can only make a police report. It is entirely up to the Deputy Public Prosecutor assigned to the case. The basis of the decision to prosecute under the lesser charge is not always clear.
Whatever the reason, it is just not acceptable that a rapist can get off so lightly with a lesser charge of 'carnal knowledge' under the Women and Girls Protection Act 1973 for raping a person, more so if she is underaged and mentally disadvantaged. It would seem that the crime is made doubly worse because of the girl's added vulnerability (i.e. her youth and mental disability). So instead of a rapist getting a more severe sentence for violating an underage mentally disabled person, the rapist gets a lighter sentence. Why is it that our legal system is unable to protect and support the very people who need the protection and support the most?
Sexual crimes against the young or the mentally or physically disabled have to be adequately dealt with and not side-stepped. Laws, legal procedures and support systems should be set up to support vulnerable members of our society.
The Women and Girls Protection Act 1973 is in the process of being repealed because it is being integrated into a new Child Bill. This gives the Government yet another chance to seriously review its relevance in relation to rape cases. Instead of merely repeating it wholesale within the Child Bill, Section 16 (1)(1) of the Women and Girls Protection Act 1973 should be repealed (i.e. removed). There has to be a serious review of the laws pertaining to rape (as well as the definition of rape) as defined by the Penal Code.
Dr Prema Devaraj | |||||||||||||||
Rape is apparently the most under-reported crime in the country. It is estimated that only one in every 10 rape cases is reported in the country. Of these reported cases, not all end up with convictions in a court of law. Very often the victims withdraw their complaint under pressure from their families, from the offender and from the whole legal process to which they are subjected. But for the cases that do make it to court and result in a conviction, jail sentences have been found to vary greatly.