SEXUAL CRIMES

committed a crime under sexual assault since consent is not a defence and under the act, a child is defined to be under 18.

This is a grey area that the courts need to clarify.

Additionally, under Section 16, if a person who commits any offence is in a relationship of trust with the child, then, in addition to the punishment he gets for the offence, he will be punished with imprisonment for a term not exceeding five years and whipping of not less than two strokes.

People who are in a relationship of trust to the child include parents, guardian, stepparents, teachers, lecturers, wardens and people in healthcare services.

This means that, for example, the man mentioned above, being the father, will be subjected to additional punishment under this section.

There are new provisions relating to evidence introduced by the new act.

Under Section 17, child witnesses are presumed to have the capacity to give evidence until the court thinks otherwise.

This is the opposite of the legal principles prior to the act, which direct the court to be cautious of the evidence of a child witness, and the court must conduct an inquiry into the capacity of the child before accepting his evidence.

Under previous laws, a court has to conduct a two-tiered test, first, to determine whether the child understands what is an oath, and if the answer is negative, then whether he understands the importance of giving a truthful statement.

If he does not understand what an oath is, but the court finds that he has sufficient maturity and understands the importance of speaking truthfully, he can give an unsworn statement.

However, if an unsworn statement by a child is taken, then under Section 133A of the Criminal Procedural Code, the court cannot convict the accused unless the child’s evidence is corroborated by other evidence.

The implication of the old principle means two things.

First, the presumption of credibility is against a child.

A child is presumed not trustworthy, mainly because he is assumed to not understand the importance of giving a truthful statement in court as well as his inability to separate imagination and reality.

Second, if he is allowed to give an unsworn statement, if there is no corroborative evidence, the court cannot convict the accused.

More importantly, case laws have also shown that a failure by the court to conduct the twotiered inquiry is a substantial failure that would warrant a court hearing the appeal to set aside the conviction.

The stakes, in summary, are against the child victim.

However, with Section 17, and Section 18, which states that when a child gives evidence, sworn or unsworn, the court is empowered to convict without corroborative evidence, the tide has now shifted in favour of the child witness, who often is the victim.

When it comes to sentencing, privileges afforded to youthful offenders and first-time offenders would not apply if the person who commits an offence under this act is above 18.

In conclusion, with this new act, our ability to prosecute and convict these crimes have been strengthened.

On top of that, the amendment to the Penal Code that was passed, but not yet in force, would add another crucial change.

Under the amendment, penetration by fingers or other objects constitutes rape.

Nevertheless, while we applaud this progression, we must not limit our efforts in tackling these social ills to law and law enforcement.

The government must look at the big picture when cracking on these problems, including providing better jobs, better incomes, thereby enabling more fulfilling and higher quality life to people, more accessibility to high quality education, fewer taboos on sex education, and definitely less talk about how a rapist can escape conviction by marrying his victim.

Prevention is better than cure.