Wednesday, August 29, 2012

An amatuer case analysis by a frustrated Malaysian.

(Read my first post on this case here.)

The full judgement for Noor Afizal Azizan's case has now been released and is available here. You are welcome!

I am now going to completely contradict my previous stance. I side with the statement made by the Court of Appeal, in particular where they stated in Para 22 that "if the order of the suspended prison sentence has the effect of rehabilitating him, then public interest has indeed been served and best served."

The reasons for the court's decision in basically letting him off (his conviction is still recorded, but who are we kidding; do we really think he is in any way being punished?) were that Afizal was not much older than his victim, that the sex was consensual, that he had shown remorse and pleaded guilty, was a first time offender, and gave a guarantee that he would not repeat his actions. Oh, then there's the whole "bright future" thing, but my previous post has went into detail about my thoughts on that  ludicrous notion already, so no need to repeat myself.

However, the argument that completely swung me was Para 17 and 18, where the objective of sentencing was considered. The court claimed that by imposing a custodial (prison) sentence, public interest would still not be served because it would not serve as an effective deterrent towards future consensual statutory rape cases, because "the safeguard towards such cases lies at home, through parental disciplining and religious knowledge, and at school through sex education about the consequences of pre-marital sex."

This is a rape case; it is completely irreversible and should not be taken lightly. This was not theft or burglary, where any losses could be monetarily compensated. He had sex with a minor, which I'm sure he was aware was against the law, and last I heard breaking the law should come with dire consequences.

Having said that, I take a step back, and agree that jailing Azizan would not discourage underage sex. I personally know numerous people who had sex while they were underage, and I am pretty sure nothing would have discouraged them from doing so at the time, even the prospect of facing possible jailtime.

In good conscience, I cannot say that I believe these people should be put in jail, even if not all of them can rightfully be said to have a "bright future". Horny teenagers will always be horny teenagers, and noone ever thinks that they will get caught; in Para 7 it was recorded that the victim made no complaint, and the sex romp was discovered after her father read her diary, which leads us to a whole new issue of privacy and parental boundaries, but I digress.

I readily admit that the whole "bright future" issue shouldn't even have been brought up as such a big mitigation factor, and the fact that it was probably fueled many netizen's angry insistence that he should be jailed. I still believe that noone should escape criminal liability by sole virtue of being young and highly gifted. However, the whole issue is two horny teenagers having sex, which is so common that most people wouldn't have batted an eyelid at if noone went to jail, had the "bright future" thing not have been discussed.

Although I risk going into complete moral decay, I conclude by saying I believe that sans the whole "bright future" issue, the right decision was made by not sending Azizan to jail.

Nevertheless, I cannot say the same for this 22 year old who had sex with his 12 year old girlfriend and walked away free. He was sentenced to a RM25,000 three year good behaviour bond instead of jailtime, and yet again that stupid "bright future" issue was considered, because he dropped out of school at 14 and just managed to get a fixed job.

With Azizan, both parties had checked into a hotel (very extravagant for first-timers), and it was clear that they intended to have sex. However, Chuah Guan Jiu had "coaxed the girl into skipping school and following him back to his flat on the pretext of him being sick, and despite her asking him many times to take her to school, he still said he felt unwell and took her to his home."

It seems to me a clear-cut case of a grown man taking advantage of his very young girlfriend's naivete and the same arguments regarding consent in support of Azizan's case cannot and should not apply for him. I can't say much for the victim's taste in guys, but if she had indeed repeatedly asked to be taken to school, I dare to speculate that she had not intended to have sex with him, at least not right then.

One issue brought up in Azizan's case was age difference. There was a rough 6 year gap in Azizan's case as she was 13 and he was 19, but in Chuah's case he was 21 and she was 12.

Call me biased, but when there is near 10 years of an age gap, and the victim is only 12, I doubt there is true sexual consent. Which primary school student has sufficient capacity to give consent to sex? More pressingly, what kind of adult would want to have sex with a primary school student??

The kind of adult that should be put in jail is what I think. The material facts of both cases are completely different, and the objectives of sentencing in Chuah's case should be giving more weight towards retribution, rather than deterrence and rehabilitation. When you're a legal adult, I don't think the law should afford any leniency towards sex with a minor, because there is just that much more likelihood of taking advantage of the immature horny minor.

What next, Malaysia? A 30 year old having sex with a 15 year old and also not going to jail for it? Honestly, it wouldn't even surprise me at this point.

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