Seek long term solution for rape and incest crimes
Tuesday, 23 April 2002 12:00am
While the Bar Council acknowledges that crimes of rape and incest are serious offences, the Bar Council views with grave concern the recent call by the Deputy Inspector General of Police Tan Sri Jamil Johari to shift the burden of proof from the prosecution to the accused in these cases.
Such a move constitutes a fundamental departure from the well-established criminal law principle that a person is innocent until proven guilty. Other than cases involving the Internal Security Act and drug trafficking cases under the Dangerous Drugs Act where there are certain presumptions, the burden to prove that the accused is guilty is always on the prosecution. The proposal that the accused be required to prove his innocence in effect ignores the evidential requirement for corroboration of the testimony of witnesses in sexual offences.
The Bar Council also views the decision of not granting bail at all or imposing a high bail for sexual offences as tantamount to punishing the accused even before his guilt is proven in court. Legal principles governing the grant of bail state that the purpose of bail is to secure the attendance of the accused during trial. Presently, only offences carrying the death penalty are not bailable at all. To deny bail in rape and incest offences will be to place such offences on the same level as offences punishable by death.
Although rape and incest offences are despicable, suggestions for sexual offenders to be whipped in public, if accepted, will only contribute towards brutalising society. Such a practice is not a part of our system for obvious reasons. If implemented, this procedure also risks disclosing the identity of the victim and thereby causing further damage.
The Bar Council takes the position that a long-term solution for the crimes of rape and incest must be sought. Although stiffer penalties help to express the degree of public repulsion towards crimes such as these, they do not constitute an effective mechanism to discourage offenders from committing the same crimes again or to deter would-be offenders. The Bar Council reiterates its call for an in-depth study to be conducted to face the problem squarely in order to examine the role of public education in reducing these crimes and the value of imposing other rehabilitative measures in tandem with heavier penalties. There is also an urgent need for the Government to improve social and living standards and reduce poverty especially in the rural areas as part of a detailed strategy to combat the crimes of rape and incest.
On a separate but related issue, the Bar Council welcomes the move by the Minister in the Prime Minister’s Department to amend the Evidence Act in relation to the examination and cross -examination of children. Video recording of evidence given by children among other child friendly arrangements certainly merit indepth consideration as part of the approach to bringing incest offenders to justice.
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