Statutory Rape Experts Push For Reform Warn Not To Criminalise Teens

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The suggestion for girls in statutory rape cases to be charged alongside the adult male perpetrator has sparked calls by experts for a holistic approach when close-in-age teens are involved.
Child welfare and legal experts who spoke to Malaysiakini believed the law should distinguish the act of rape by a predatory adult male from a non-exploitative romantic relationship between underage children.
According to child welfare activist Hartini Zainudin, teenagers under 16 do not have the capacity to give legal consent regardless of gender and treating them as criminals can cause trauma and create stigma that can affect their future.
“Rather than punishing the teenagers under criminal laws, it would be better for the country to invest in comprehensive sexual education, counselling, and psychosocial support, and in-community prevention programmes.
“With comprehensive sexual education, teenagers can understand their rights, consent, and risks of pregnancy and contracting diseases.
“Counselling and psychosocial support can be provided for the teenagers and their parents, while through prevention programmes, there would be engagement between parents, schools, NGOs, and religious authorities,” she said.
Child welfare activist Hartini ZainudinHartini, who is Yayasan Chow Kit co-founder, also expressed her agreement with suggestions mooted by several lawyers for Malaysia to have a “Romeo and Juliet” law.
She said many countries have allowed a “close-in-age exemption” where minors having sex with other minors within a small age difference, like a two to three year gap, are not treated as criminals.
However, she stressed that such a law should not allow exploitation by adult males.
“For example, a man aged 19 who has sex with a 15-year-old girl. While their age gap is not too much, there is a risk of power imbalance, manipulation, or subtle coercion.
“The law must be clear about the age limit and maximum age gap to prevent abuse,” Hartini said.
Considering mental age and maturity
Lawyer Puvarasan Balaiyah pointed out that while Section 375(g) of the Penal Code - which criminalises sex with girls under 16 regardless of consent - is designed to be “purely protective”, a rigid approach has often led to outcomes that “defy common sense”.
This happened particularly in cases involving close-in-age teenagers where the relationship may be genuinely consensual, he said.
“We must introduce a mechanism that gives due weight to the right mental age and maturity of the victim,” he said.
Puvarasan suggested that a holistic legal review must consider three factors: actual maturity, power dynamic, and proportionality and justice.
“Chronological age doesn’t equate to cognitive or emotional development. We must integrate insights from child development experts to assess a minor’s capacity for informed consent.
“The law must differentiate sharply between predatory adult exploitation (where the strict liability rule is absolutely essential) and non-exploitative relationships between two adolescents with a small age gap.”
According to Puvarasan, the law must also ensure that the punishment fits the true nature of the act.
The blanket imposition of a rape charge on a teenage boy for a non-exploitative, consensual relationship with a slightly younger partner, he said, “is often a failure of justice”.
Differentiating boys and men
Veteran criminal lawyer N Sivananthan said it is fairer to amend the law, which recognises only a man as being able to commit rape.
According to him, the law should state that if an offender is also under age 16, and the sex was consensual, he or she would be entitled to probation or rehabilitation punishment.
“For those above 16, the current law suffices as it may amount to using undue influence on a girl who may be gullible and easily influenced.
“That would be a step in the right direction as it doesn’t unfairly prejudice a boy under 16 who may also lack the maturity to appreciate his actions fully,” Sivananthan said.
Veteran criminal lawyer N SivananthanLast week, Kelantan police chief Yusoff Mamat sparked controversy after he suggested 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.
While his remarks attracted criticism, several lawyers 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. - Mkini

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