Sunday, 26 August 2012

Double standards in sentencing

Brave New World (The Star)
22 August 2012

There are times we hail court decisions and there are times we find them bizarre. But if we ignore the incredible disparities in some court decisions, it is only at our own peril.


HOSLAN Hussein gets one year in jail for inaccurately chucking (he missed) his slippers at a judge. Noor Afizal Azizan gets a fine and zero jail time for raping a 13-year-old girl.

It boggles the mind. Hoslan’s sentence, in my view, was very harsh and over the top.

But even if one were to believe that the sanctity of the courts is so fragile that a punitively deterrent punishment is required for the flinging of footwear, it is impossible to ignore the incongruous disparity in the punishments meted out to these two men for crimes of such vastly different seriousness.

Much has been said about the judge’s unbelievable comment when sentencing Noor Afizal. Apparently being a national bowler with a bright future is enough to let you escape jail time for rape.

Actually, what is this “bright future” the judge is thinking about? The man is a child rapist; he confessed to it. He should not be allowed to represent the country in anything at all.

And in case you think there are mitigating issues in this case, namely that the sexual act was supposedly consensual, allow me to argue otherwise.

In this case, the girl was under the age of consent. This means the crime committed is statutory rape. The issue of consent does not even arise in such cases.

The reason for this is because we as a society have long ago determined that the young girls of our community deserve protection.

It does not matter in the slightest that children mature at different rates; what matters is that in general, this society believes that girls under the age of 16 are not yet ready to make decisions regarding their own sexual activity.

There are mental, psychological and also physiological elements to this need for protection.

The sexual act by itself could have implications for a child’s well-being, but a child from our society would surely be traumatised in the event that she got pregnant and had to face either childbirth or abortion.

Furthermore in immature bodies, the experience can also be seriously harmful physically.

I use the term “a child from our society” because I realise the age of consent will differ from nation to nation and culture to culture.

But in the case of statutory rape, there is no room for comparative anthropology. What matters is what we value for our girls.

I always believe that Malaysians care for our children. We want them to have a sound and safe childhood so that they can go to school and build a strong foundation for their future.

This is why we want to protect them for as long as possible, for it is this safety that helps to establish an environment where they can mature and flourish at a pace which we believe is healthy.

The judge in making his decision could not possibly have been thinking about this bigger picture. For if he had, he would have realised that his judgment was not only about Noor Afizan and the girl he violated, but also about all the girls in this country and our collective concern for them.

He has in effect dealt a blow to one of the few noble values that the people of this country universally accept — that our children should be cared for and be protected.

It was pointed out to me that Noor Afizal was NOT fined but the money he paid up was a surety. I regret this sloppy mistake but it does not detract from the main thesis that the judge made a decision which in my opinion was not appreciative as to WHY we have a Statutory Rape law in the first place.



dukuhead said...

tiada otak punya judge

Anonymous said...


This must be one of your stupidest article. Of course all issues on staturory rape is about under age consent. But it does not detract the fact of consensual sex. See other jurisdictions in the west where age of consent is 16 or 18. We are facing teenage consensual sex issue and you argue on stupid things. You're lucky you're not my student. Otherwise I flunk you for stupidity.

You can censor my comment if you want. Ive had enough with all you goons.


Observer said...

There are too many inconsistencies with respect to the offence of statutory rape. To justify my comment would require a statement of more than the permissible length.

Suffice it is to say that judges dealing with the offence of statutory rape face insurmountable moral difficulties especially where a complainant is not the victim and where the social and cultural environment tolerate sex with so called minors.

The US, Britain, Australia and several European countries have found a convenient way out of this dilemma.

In the US where the parties in a rape complaint are married or where the underage “victim” has conceived and a relationship exists, the charge of rape is not proffered under the marital exemption convention practiced in the US. In some states in the US the defence of mistake of age is permitted.

In the US a country which borrowed the English law in this regard, the marital exemption is applied. In many states even 13 year olds are allowed to marry. How can we forget the marriage of famed American rocker Jerry Lee Lewis in the 195's to his cousin who was only 13 in order to avoid a charge of statutory rape.

My objection to your comments is that your criticism is akin to tying up the judge and beating him up.

Judges by convention and (dare I say law) cannot coment on their judgemnents outside court.

But the point is taken that the subject is highly contentious especially where in practice the practice of underage sex by consent amongst teenagers is prevalent.

Observer said...

Moving on to the other matter that you raised to compare with the rape offence, the offence of throwing a footwear in an Asian culture is the height of disrespect.

Footwear belongs to the lowest part of the human anatomy and throwing it at someone has certain unmistakeable cultural significance. In this case it secreamed obscenities at the judge and the institution he presided over and that raises the offence from one thats unaccetable to one thats intolerable.

Why a more severe sentence is required for the shoe throwing offence is because of the symbolism it carries with it. The King parliament and the courts and its officers are sacrosanct. For justice and the system to function the sanctity of these institutions need to be protected. They are hallowed.

There are processes and procedures available to express ones displeasure at them. Throwing footwear and other objects at them is not one of those methods and processes in an acceptable form. And the Judges must jelously guard their integrity and those of the institutions they preside over. If they did not and did not make an example of such offenders we are all in trouble.