Prosecuting Statutory Rape Victims A Flawed Take

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Kelantan police chief Yusoff Mamat has been subject to critical public opprobrium for suggesting that girls involved in statutory rape cases be criminally indicted too, apart from the adult male perpetrator.
In justifying his bold proposition, he argued almost 90 percent of statutory rape cases are consensual in nature.
To be fair to him, the 90 percent figure was not a figment of his imagination. According to him, the statistical number is in fact derived from police investigations.
He also believed the law is more geared towards prosecuting men, even though in a plethora of statutory rape cases, he said both parties are essentially partners in crime.
Despite the fact that the home minister was relatively quick to conclude that Yusoff’s view is merely a personal one, Yusoff seems to be serious in his recommendation.
He does plan to discuss his proposal with the Attorney-General's Chambers, the Kelantan Islamic Religious Affairs Department, and relevant parties to ensure fairer action.
Though Yusoff’s view may be seen as weird at best and outrageous at worst, in my opinion, we may still need to respect it.
After all, the strength of democracy lies in its readiness to tolerate even a lousy opinion. That is, in my view, the true essence of democracy.
Takes two to tango but…
For Yusoff, in any rape cases - including statutory rape - there are invariably two perpetrators, as it takes two to tango. Ergo, justice demands that both criminals ought to face the same music.
To punish only one party, namely the male perpetrator, would be unfair and discriminatory - that is basically the central plank of his argument.
With due respect, the fallacy of his argument lies in his utter failure to draw a fine line of demarcation between rape and statutory rape. Both crimes are poles apart.
Yusoff may argue that a female partner of “consensual” rape involving Muslims should be charged with an offence of fornication or adultery under syariah law.
While consent can become a good defence in a rape case under Section 376 of Penal Code, for statutory rape, consensual sexual intercourse is not considered a defence at all.
Be that as it may, any male offender who commits statutory rape is committing a crime against an underage girl. Under this type of offence, there is only one malefactor, though the sexual intercourse may be mutually consented.
As of now, the consent of the victim (the underage girl) is legally assumed to be absolutely defective and meaningless in any statutory rape offence.
In short, there are actually no two partners committing a crime of rape as far as statutory rape is concerned. Only one perpetrator has committed the crime. The other one is a victim. Period.
Hence, allowing the law to punish the underage girl is akin to punishing the victim.
Power dynamics
The strictness of the law on statutory rape is premised on the theory of imbalance of power.
Power, as we know, is a prerequisite of responsibility, and the primary justification for statutory rape laws is that girls in any society do not have enough power to resist coercive male initiative in sex.
While Yusoff may sincerely believe that his proposal is to provide a clear message to teenagers, ensuring that they do not get involved in such acts, asking the state to equally punish the underage girl for statutory rape is definitely not a good remedy.
It would merely discourage any victim of statutory rape from bravely coming forward and lodging a complaint. Like it or not, the fear of penal consequences is real. - Mkini
HANIPA MAIDIN is a former deputy minister of law.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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