Lawyers Moot Romeo And Juliet Law Not Charging Girls In Rape Cases

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Lawyers have suggested the introduction of a "sweetheart defence", also known as a "Romeo and Juliet law", instead of charging underage girls for "consenting" to statutory rape.
Kokila Vaani Vadiveloo explained that such a legal provision aims to prevent the prosecution of minors for having sex with other minors within a specified age range.
"In cases where both parties are minors and close in age, prosecutors (where there is such a law) are often more likely to recommend counselling or other non-criminal interventions rather than pursue a criminal charge.
"The focus shifts from punishment to protecting the minors and ensuring their well-being," the lawyer told Malaysiakini.
Lawyer Kokila Vaani VadivelooAgreeing on the need for such a law, Child Rights Innovation and Betterment (Crib) Foundation co-chairperson Ajeet Kaur called for the relevant laws to be amended to allow this, proposing an age gap of no more than three years.
This came following Kelantan police chief Yusoff Mamat's suggestion that girls involved in statutory rape cases should be charged alongside the adult male perpetrator.
He argued for the consideration of his proposal by saying nearly 90 percent of statutory rape cases are consensual, based on investigations.
Yusoff said he would discuss the proposal with the Attorney-General's Chambers, Kelantan Islamic Religious Affairs Department, and relevant parties to ensure fairer action.
Commenting on what would happen if this proposal were to pass, Ajeet said that victim-blaming and shaming would increase while police reports against sex crimes decrease.
"This will give rise to more victim-blaming statements and overtures like 'what was she wearing', 'she was dressed sexily', and so on," the lawyer added.
Protect victims, not punish
On top of that, Kokila cautioned that criminalising minors in such cases risks extending punitive measures to other sexual offences and unlawful acts involving young people.
"These risk embedding a societal mindset that minors can be partially culpable, especially when most statutory rape victims are female and perpetrators male, exacerbating gender inequality," she said.
Another lawyer, Nizam Bashir, warned that turning the proposal into law could set a troubling precedent by normalising the punishment of victims in sexual offence cases.
"Today, it's statutory rape. What will the frontiers be for tomorrow? Rape or other forms of sexual violence?" he mused.
Nizam stressed that the law must continue to uphold a framework centred on protecting victims, not holding them accountable.
Minors can’t consent
According to lawyer Rajesh Nagarajan, the problem with Yusoff's proposal hinges on the consent of a minor - a "legal impossibility".
He pointed to Section 375(g) of the Penal Code, which criminalises sexual intercourse with girls below 16 years old, even with her consent.
Lawyer Rajesh Nagarajan"This provision exists precisely to protect minors who, by law, cannot provide valid consent," Rajesh said, adding that the courts have consistently affirmed this legal principle.
Because of this, Rajesh said Yusoff's argument that the majority of statutory rape cases are consensual is baseless and without legal standing.
Kokila also criticised Yusoff's argument, saying he risks misrepresenting the legal framework as one that recognises the consent of minors.
‘Cops can’t unilaterally propose changes’
Nizam explained that Yusoff's suggestion opposes the statutory framework while transforming victims into co-perpetrators and forcing criminal culpability upon them, making them less likely to lodge police reports against sexual abuse.
He added that Yusoff overstepped his role as a state police chief.
Kelantan police chief Yusoff Mamat"Police officers enforce the law. They do not formulate legal policy. Proposing changes to statutory rape laws falls under legislative authority.
"That aside, there is a federal versus state dichotomy where criminal law is concerned. Criminal law, including statutory rape, falls under federal jurisdiction.
"State police chiefs cannot unilaterally propose changes to federal criminal statutes," Nizam said.
‘Religious authorities have no mandate’
Besides that, Rajesh described Yusoff's proposal to consult the Kelantan Islamic Religious Affairs Department over the matter as "troubling".
"This is a matter of criminal law, governed by the Penal Code, Sexual Offences Against Children Act 2017, and the Child Act 2001, all of which fall squarely within federal jurisdiction.
"Religious authorities have no mandate to decide or influence criminal liability under national law," he added.
He said this was emphasised in the Nik Elin Zurina Nik Abdul Rashid case, which saw the Federal Court nullifying 16 provisions under the Kelantan Syariah Criminal Code Enactment (I) 2019.
As the decision made it clear that criminal law lies exclusively within the federal legislative list, the involvement of the Kelantan Islamic Religious Affairs Department would be a "serious misdirection of law and jurisdiction", Rajesh added.
Child grooming
Last year, Bukit Aman’s Sexual, Women and Child Investigation Division principal assistant director Siti Kamsiah Hassan said the increase in statutory rape is believed to be due to grooming on social media.
The sexual grooming of children occurs when an adult gains a vulnerable child's trust to make way for a sexual relationship.
Bukit Aman’s Sexual, Women and Child Investigation Division principal assistant director Siti Kamsiah HassanSiti Kamsiah told Bernama that the majority of statutory rape victims told investigating officers that they got to know the perpetrator over social media before meeting them in person.
“This shows that these girls have undergone the grooming phase with greetings of ‘hi’ and words of praise, which leads to the girls sending nude photos.
“This is followed by the meeting phase, which results in these girls being raped, including by gangs,” she said. - Mkini

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