THE issue of consent should not arise at all in a case of statutory rape, opines retired Court of Appeal judge Datuk Shaik Daud Ismail.
“Whether as a defence, or even in mitigation, the issue doesn't arise. Because if you take consent into the picture, then why bother having a special provision for statutory rape?
“It would just be the same as a (non-statutory) rape case,” he points out.
Under Section 375(g) of the Penal Code, statutory rape is defined as someone who has sexual intercourse with a woman “with or without her consent, when she is under 16 years of age”.
“That is definite. It has been clearly defined already. So consent' as a defence cannot be used at all. And in my view, it should not even be used as a mitigating factor,” he says.
On the matter of consent, it is not merely about the girl giving her consent for sex, but “whether she is old enough to understand the consequences, and if she is capable to deal with responsibility of a pregnancy and a child”.
“All these things are what needs to be considered when you are talking about whether a child is old enough to give her consent',” he argues.
Another point that needs to be considered is the age of the perpetrator, he says.
The Child Act 2001 defines a child as a person “under the age of 18”.
In relation to criminal proceedings, juveniles are those under 16, and they would be tried in the juvenile court, says criminal lawyer S.N. Nair.
He refers to Section 82 of the Penal Code, a provision for absolute doli incapax, where “nothing is an offence which is done by a child under 10 years of age”.
For a child between the ages of 10 and 12, Section 83 of the code states that nothing is an offence if the child “has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion”.
The Juvenile Courts Act 1947 defines a young person as a person who has “attained the age of 14 years and is under the age of 18”.