'What's the use of statutory rape law then?' one
lawyer asks, while joining others in urging the AG to seek a review of
the decision.
PETALING
JAYA: Several lawyers have condemned the recent Court of Appeal
decision with regard to a national bowler convicted of raping a minor.
The lawyers asked the Attorney General’s Chambers to appeal the
controversial decision of the three-judge panel to free ten-pin kegler
Noor Afizal Azizan despite him pleading guilty to having sex with a
13-year-old girl, citing his “bright future”.
While acknowledging that the court could decide things at its own
discretion, criminal lawyer Cheow Wee stressed that the current ruling
sent a wrong message that “certain people get special treatment”.
“The way the judgment was reported, it seems that he was special. Now
you are telling the public, you can have sex with anyone under 16 if
you are a big celebrity or bowler, and not put him behind bars. Where do
you draw the line then? Who has a bright future and who doesn’t
future?”
“The AG should review this. Might as well do away with the law. If in
all cases of statutory rape, the offender starts arguing that the court
should use the same discretion, how many fellows will be walking the
streets?” he said, adding that this was the first time he had heard of
such a decision.
Cheow said the fact that it was consensual cannot even apply as a
defence because it was a statutory rape case [where the victim is 16 and
below].
“In a typical rape case, the defence could still attempt to prove the
element of consent. But [for statutory rape] this is a strict statutory
offence, where consent, according to the provision, is not an issue. It
should be factored out entirely,” he said.
‘Court made an error in law’
Meanwhile, another criminal lawyer Baljit Singh Sidhu said the Court of Appeal had “made an error in law”.
“The public interest here cannot outweigh any other interest.
Offences of such nature are not accepted by any cross section of
society,” he told FMT.
“The offence committed by him is very serious … it cannot be considered for plea bargaining,” he said.
He said the AG must now, pursuant to Article 145 and Section 376 of
the Criminal Procedure Code, take into account public interest and make
an application to review it.
“AG’s paramount interest is to take care of public interest,” he added.
Activist-lawyer Fadiah Nadwa Fikri from Lawyers for Liberty said she
agreed with the position of women’s groups which criticised the appeals
court, saying the law on statutory rape was there to protect minors, and
not the offenders.
“This is statutory rape and the girl is a minor. We should follow
what the law says. While we also look at the nature and gravity of the
offence, to protect minors, we have to be more strict in imposing
punishments. Consent is irrelevant, this is simply still rape, under the
law,” she said.
Adding that the decision was peculiar, Fadiah compared this case to a
recent High Court decision to sentence blogger Amizudin Ahmat to three
months’ jail.
Amizuddin, who blogs at
sharpshooterblogger.blogspot.com,
was found guilty of contempt of court by breaching a court order
barring him from publishing articles defaming the Information,
Communications and Culture Minister Rais Yatim.
“Even a contempt of court case, the person is jailed for three months and a rape
case is dealt with as such? You have to balance out the interest of
the minor, the victim in the case. In this case, I believe the judges
have used their discretion wrongly. It is really scary,” she said.
Issue to be raised in Parliament
Yesterday, DAP lawyer Gobind Singh Deo had urged the AG to file for a review of the court’s decision.
The Puchong MP said he would raise the issue when Parliament resumed next month.
“The court must then give full reasons which must be made available
to the public for either affirming or setting aside the said decision,”
he was quoted as saying.
Last Thursday, it was reported that the Court of Appeal, headed by
Justice Raus Md Sharif, overturned a Malacca High Court decision made in
Sept 20, 2011 to jail Noor Afizal for five years. Also on the panel
were judges KN Segara and Azhar Ma’ah.
Instead, it allowed a petition by the sportsman to restore an earlier
decision by the Sessions Court that had only bound him over for good
behaviour for five years to the sum of RM25,000.
Both the Sessions Court and the Court of Appeal had considered the
fact that sex was consensual and that Noor Afizal was a first-time
offender and no ordinary person.
The 21-year-old bowler, 18 at the time of the offence, had pleaded
guilty on July 5 last year to raping the 13-year-old girl at a hotel in
Air Keroh in 2009.
Lawyers noted that when the court bound someone for good behaviour
for five years, it meant that the offender walked free, with a record of
conviction.
“If he is found to commit another offence, he can be brought to court
again to review the court’s position on the first offence. The court
can ask him why he shouldn’t be sentenced based on his first offence.
But if he is not caught, the bond will be refunded, end of matter,” said
one lawyer.
Statutory rape, or sexual assault against a girl aged below 16 — with
or without consent — is punishable with up to 20 years jail and
whipping.
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