Will the judiciary take all the blame if both Nor Afizal and Chuah were to commit more rapes?
It’s confirmed that the two judicial experts who found statutory rape of two minors a non-issue need help in understanding what rape is â€“ or else they will go on delivering reproachful judgments in favour of rapists.
On Aug 28, Sessions Court judge Nisa Abdul Aziz released a 22-year-old electrician Chuah Guan Jiu on â€śgood behaviourâ€ť after he was convicted of raping his then 12-year-old girlfriend twice last year.
Chuah was instead bound over for three years on a RM25,000 good behaviour bond. He had committed the crime at his flat in Jalan Ru 1, Air Itam on July 18 and 19.
The offence under Section 376(1) of the Penal Code carries a jail sentence of up to 20 years’ jail and whipping.
But Nisa decided that since the sexual act was consensual between Chuah and the victim and that he had not tricked her into the act, no â€śrapeâ€ť had taken place.
Nisa made the perpetrator’s future her priority, not the fact that he had tricked his minor partner into having sex with him; the facts of the case stated that Chuah had persuaded the victim to skip school and follow him to his home, which then led to the offence being committed.
So the judge thought best that Chuah be bound over for three years on a RM25,000 good behaviour bond.
A shame that the judge failed to understand the psyche of a rapist who not once but twice raped his schoolgoing girlfriend. Worse still, Nisa made the probation report her â€śbibleâ€ť in stating that Chuah did not have a prior criminal record and was a Form Two school drop-out.
What is even more shocking is that Nisa, like her predecessor, Court of Appeal president Raus Shariff, displayed her ignorance on what constitutes statutory rape and that Malaysia is a signatory to the United Nations Convention on the Rights of the Child (CRC) 2009.
According to the Committee on the Rights of the Child â€“ Implementation Handbook for the CRC, a girl under the age of 18 is a minor and is not in a position to give informed consent.
The second-highest ranking judge in the country, Raus had opted to show concern for perpetrator Noor Afizal Azizan’s â€śbright futureâ€ť in setting aside the five-year jail term imposed on the national bowler by the Malacca High Court, and instead binding him over for good behaviour.
Nor Afizal, then 19, was charged with raping his 13-year-old girlfriend at a hotel in 2010.
A tragedy that Nisa and Raus have not only failed to uphold justice but they have also downplayed the crime of statutory rape, claiming, on the contrary, that consensual sex between a minor and an adult is “permissible” under the law.
Nightmare for the parents
By siding with the rapists, both Nisa and Raus have decided that the welfare of the rape survivors is none of their business and that irrespective of their ages, rape survivors are â€śpartyâ€ť to rape.
When Raus’s judgment created a public uproar, all he did in trying to clarify his decision was to say that despite being let off on a personal bond of RM25,000 for good behaviour, public interest had been served as Nor Afizal had been convicted and the offence recorded.
Raus’ clarification comes as a nightmare to the parents of the young girls. What do we make of such senarios â€“ a rapist is allowed to roam about freely simply because the judge was impressed with his â€ścredentialsâ€ť or because the rapist is too young to do jail time?
Are Raus and Nisa willing to take all the blame if both Nor Afizal and Chuah were to commit more rapes?
Also, since when has the perpetrator’s age and â€śbright futureâ€ť become a concern of the courts in crimes as traumatising as rape?
What Nisa and Raus have done is a travesty of justice, a blunder so serious that it has left the rakyat wondering whether justice is still alive or long dead in this country of 28 million people.
In these two cases, the injustice done to the rape survivors begs that â€śremedialâ€ť actions be taken to ensure judges stop being biased when dealing with rape cases; it is imperative too that judges stop finding faults with the rape survivors and no longer depict them as â€śguiltyâ€ť.
Are Raus and Nisa aware that in statutory rape which is also known as sexual assault or rape of a child or corruption of a minor or carnal knowledge of minor, overt force or threat need not be present as the law presumes coercion as the minor is legally incapable of saying â€śayeâ€ť to the act?
If judges keep reflecting their ignorance on cases that have devastating impact on the victims, where does that leave the ordinary rakyat out to seek justice from the courts?
Should justice continue to evade those who knock at its doorstep, the day will not be far when the nation mourns tragedies seen only in Hollywood or Bollywood movies.
Jeswan Kaur is a freelance writer and a FMT columnist.