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Written by Afiq Terry
Case Facts
In this case, the daughter left the house without informing the father that she was staying for five days and four nights at the Defendant’s place. The girl only came home on the 19th of August and her father submitted a police report on 20th August stating she was raped by the Defendant multiple times. The problem was that the father of the girl only mentioned the girl’s age but did not present the birth certificate, as it was not requested by the public prosecutor. But the victim (in this case the Complainant) indicated that she was 15 years old at the time she was formally sworn as a witness. The victim presented the identification card but did not show her birth certificate. The Appellant was charged by the court with two revised charges of ‘statutory rape’ and was convicted under 376 of the Penal Code. The victim was allegedly 14 years of age and 4 months of age at the time of the offences.
With three strokes of rotan and eight years imprisonment, which the Appellant was to serve concurrently. The Appellant challenged both conviction and sentencing to the High Court. The facts showed no information regarding the date of birth of the victim apart from the complainant’s identity card that was presented in court as a display.
Appellant’s Argument
The learned judge of the High Court handled one principal ground of appeal concerning the matter of the age of the Complainant. The Defense argued that it was necessary for the prosecution to prove beyond a reasonable doubt that the complainant victim was under the age of 16 because the Complainant’s age was an essential component of a ‘statutory rape’ offence. The facts showed no information regarding the date of birth of the victim except for the evidence of the Complainant’s identity card that was presented in court as a display. In addition, the victim made contradictory explanations regarding what happened. She told her father that she had been abducted and raped, but her testimony claimed that she had gone from Alor Setar bus station to the accused’s house by taking a cab. Her credibility is therefore arguably quite suspicious.
Decision of the court
By allowing the appeal and setting aside the conviction and sentence, it was held that
1. In situations of statutory rape, the investigating officer must primarily determine that the claimed victim’s age was indeed below 16 when the offence was committed. In the immediate case, however, the prosecution had failed to provide prima facie proof or, without reasonable doubt, to prove that the victim was under the age of 16. The police investigator also failed to obtain undisputed proof of age on the plaintiff’s birth certificate.
2. The identity card of the accused victim cannot be used in law to demonstrate its age or date of birth. There is no presumption pertaining to the contents of that the identification card and the burden of establishing the truth of any data falls within the individual to whom that identity card was issued to or any person claiming that content to be true.
Analysis
In the obiter of the judgement, it was said that many young girls appear very mature and fully developed physically to be able to pass off, in appearance, as having attained the age of majority as well as womanhood. Hence, it is absurd and unrealistic to expect a male partner to have the prospect to require his female companion to prove to him that she is over 16 years old before he entertains her. However, the male partner still does have a duty to ensure that they are having consensual sex with women who can and are able to give consent.