Child Rape Victim: Right to bail and Legal Representative

On Feb 15, a 15-year old girl was charged under Section 302 of the Penal Code (Act 574) for the offence of murder before the Magistrate Tengku Eliana Tuan Kamaruzaman in the Kemaman Court. No plea was recorded.

She was charged for killing her newborn baby after giving birth to it alone in a house in Kemaman. It was alleged that the girl had asked a friend for assistance in informing health authorities of the birth.

Upon arrival, the authorities found stab wounds on the baby, which were presumed to have been inflicted by the teenager through stabbing.

A child is defined as a person below the age of 18 years old according to the Child Act 2001 and according to section 82 of the Penal Code, a child below the age of 10 cannot be guilty of any offence as they are unable to form the guilty mind.

If a child under 10 years old commits any offences, she or he cannot be charged in any court of law. It must also be pointed out that anyone who had sex with a female under the age of 16, commits the offence of rape and the issue of the girl’s consent is totally irrelevant. Hence the 15-year old girl is a child victim and as a victim come perpetrator, she has certain rights laid down in the Child Act 2001 and some other statutes.

No doubt that the alleged offence is a serious offence but she is a child and a rape victim too!

This case presents several child rights issues as follows:

1. Statutory Rape Victim.

According to Section 375(g) of the Penal Code, a person below 16 years old, is deemed incapable of giving consent to sexual intercourse. Thus, the girl had been raped. As a State Party to the Convention on the Rights of the Child (CRC), Malaysia is duty-bound to protect the child from sexual victimisation. This can be gleaned from Article 19, which states: -

“1. States Parties shall take all appropriate legislative, administrative, social, and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment, or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide the necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement”.

Article 34 of the CRC similarly establishes the need to protect a child from sexual exploitation. The Article states: -

Out of state

“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall, in particular, take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

(c) The exploitative use of children in pornographic performances and materials”.

1. Child that Conflict with The Law

For a child who has allegedly acted in conflict with the law, any decision to detain the child pending trial, should have been a measure of last resort. Article 37(b) of the CRC indicates: -

” No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.

Even though Malaysia has placed a reservation on Article 37, Article 3(1) of the CRC places a broad obligation on Malaysian institutions to place primary consideration on the best interest of the child. The provision states: -

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

According to the Child Act 2001, upon arrest, a child must be taken before a Court for Children within 24 hours from the time of the arrest. This is stated in section 84 as follows:

84. (1) If a child is arrested with or without a warrant, the child shall be brought before a Court for Children within twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Court for Children. (2) If it is not possible to bring a child before a Court for Children within the time specified in subsection (1), the child shall be brought before a Magistrate who may direct that the child be remanded in a place of detention until such time as the child can be brought before the Court for Children.

(3) The Court For Children before whom a child is brought shall inquire into the case and unless— (a) the charge is one of murder or other grave crime; (b) it is necessary for the best interests of the child arrested to remove him from association with any undesirable person; or (c) the Court For Children has reason to believe that the release of the child would defeat the ends of justice, the Court For Children shall release the child on a bond, with or without sureties, for such amount as will, in the opinion of the Court For Children, secure the attendance of that child upon the hearing of the charge, being executed by his parent or guardian or another responsible person.

(4) Nothing in this section shall be deemed to affect the powers of a police officer to release the child arrested on bail in accordance with the Criminal Procedure Code.

No doubt that the offence is a non-bailable offence but under section 388 of the Criminal Procedure Code (Act 593) the Court is empowered to grant bail for non-bailable offences where the person charged is under 16 years of age or a female. However, bail was denied by the Magistrate. A review has been filed by the defence, lawyer and a hearing was set for March 3 before the Kuala Terengganu High Court. The High Court on the 8th of March decided that the Magistrate did not error in law in refusing bail as it was not its jurisdiction. Bail was refused but the girl was ordered to undergo a psychiatric assessment at a government hospital.

2. The Best Interest of the Child Concept

The Best Interest Concept is one of the four main principles of CRC. Although Malaysia reserved Art37, it did not reserve Art 3 of CRC. It is important that Malaysia comply with this principle that the court in deciding cases involving children must apply the best interest principles as a priority.

In this case, the 15-year old has just given birth alone. She is under so much stress and pain. Even as a full-grown adult, giving birth is not a bed of roses and the traumatic experiences with some other social pressure must have driven her to do what she did. It is still an alleged crime and she is innocent until proven guilty.

As a child victim, she is entitled to bail and should be taken to the hospital for emotional and phycological assessment. All courts must observe rules and regulations relating to children which are provided in the Child Act 2001 whether or not the child is taken to The Court for Children or the High Court.

3. Right to a Legal Representation.

Under the Legal Aid Act 1971, persons that fit the criteria will be given legal aid for free. There is a means test to be eligible for such services. However, there is no special provision for children.

If children need legal aid, Legal Aid Department will assess their parents. I think children should be given free legal aid, i.e., entitle to be represented by a lawyer upon arrest. Bar Council should have a list of lawyers to act immediately upon request. A Magistrate should make it a point to ask DPP whether a child perpetrator has a lawyer before he/she is going to be charged.

A child has a right to be protected under the Federal Constitution, Child Act and other laws. Children that conflict with law must be given the opportunity to a free legal representation and protected as he or she is a victim first in most circumstances

Professor Datuk Noor Aziah Mohd Awal is the Children's Commissioner of the Human Rights Commission of Malaysia (Suhakam) and law lecturer at Universiti Kebangsaan Malaysia. She is also Sinar Daily's columnist.