It does not matter how far way you are from home for some local sensational news to jolt your senses. Malaysia has some great precedents for being a very unsafe/unequal country for women. This week the judges of the Court of Appeals enjoyed some limelight for the wrong reasons.
The learned gentlemen of the bench had set aside a decision by a lower court in a statutory rape case and let the perpetrator off with mere a rap on his knuckles out of 'sensible' consideration of his 'bright' future. Please read here for further details of the case - What price justice?
The offender had pleaded guilty to the charge of having sex with a minor (13 year old girl) in a hotel room. The offender was given a 5 year jail sentence and a fine of RM 25,000 by the Sessions Court. However, upon appealing his case, judges of the Court of Appeals set aside the jail sentence and allowed him to walk free!
I recoiled upon learning that the judges felt it was not in the best interest of society for a national athlete to be incarcerated for a crime he admitted to committing, since the act (referring to sex) was consensual.
The Age of Consent
There were so many things wrong with this judgement, first and foremost these judges had set a DANGEROUS precedent. They took it upon themselves to interpret what was consensual sex. Despite, having an iron-clad law which clearly defines the age of consent for sex which is 16 (it should be 18 in accordance with the CRC). In addition to this, Malaysia has ratified the Convention on the Rights of the Child (CRC) which states anyone under the age of 18 is a child. So, what was the basis of their judgement if we have such clear guidelines? Children are not able to give consent, especially in this case where the offender, an adult who had a lot more power and control over her. Therefore, how did they arrive at the conclusion that the sex was consensual?
This is compounded by the fact that sex education is not taught in schools in Malaysia. How would this child have had access to enough information to make such an important decision? A good syllabus would impress upon decision making skills, the ability assess risks and assertiveness. An empowered and informed child would be able to say 'No' if she was being pressured to have sex.
Power and Privilege
As a feminist I have to point out there were many dynamics at play here which resulted in a decision based on the narrow albeit limited perception of privileged men. The panel of judges were all male, middle-aged and privileged (educated and of means). The perpetrator of the crime was also privileged due to his stature as a sportsman and of means ( he could afford to engage a lawyer to appeal his case). He could have easily paid the paltry sum of RM 25,000 as a penalty.
The judges do not have an inkling of what it means to be a 13 year old girl. considering she would have been under tremendous pressure from a man who is famous and rich to have sex with her. Rape is about power, someone who exerts power and control over someone he/she perceives as weaker. That power is then used to sexually subdue, subjugate and violate which is clearly the case in this situation.
Patriarchy
Above and beyond this, it is patriarchy looking after its own. This is a rising male star in sports who has a 'bright future' which is in the best interest of the public. The public here probably refers to male, privileged members who enjoy sports (predominantly a male domain). It becomes acceptable to sacrifice a child in order to forward the interests of a male dominanted society. Did anyone deliberate on the best interests of the child involved? These vanguards of the rights of all members of society, people who are supposed to protect the best interests of all members of society have failed women and children spectacularly.
Where does this leave us?
In a country where there is a high incidence of violence against women and children, poor law enforcement and low levels of conviction of gender based violence, this case encapsulates dire straits of women's and children's rights. The burden of proof in gender based violence cases always falls on the survivor of the violence. This is a terrible burden to impose on someone who has just suffered irreparable physical and psychological damage.
It should be mandatory for judges to attend gender sensitization programmes as well as understand the dynamics of power in gender based violence. Judges should undergo objectivity tests to ascertain if they are capable of giving truly objective decisions despite their social conditioning.
The state is complicit in perpetuating gender based violence in the country because there is a severe lack of programmes available to increase awareness on gender equality. It is not a priority in the government allocations available for social development. Sex education must be implemented as soon as possible, focusing on inculcating children with effective decision making skills as well as assertiveness.
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