If you.. What would you say?

This article was emailed to me by one of the readers of my blog.

According to her email, she asks me some question and seems she want to know my opinion regarding of this topic below.

I have answered her question based on my little bit knowledge about laws including Islamic law, but here I just posted this article as one of the entry to share with all of you.

Maybe this article also showing to us about the ‘dilemma’ of a law student because sometimes they have to defend what they can’t!

I encourage all of your comments! Thanks.

Topic: The death penalty should be imposed against child rapists?

Ang May Hong, Nurshuhada Burak, Nurul Huda Abd Ghani and Nurin Jazimin. What happened to these girls? Either Raped or Killed? or both? They were not only sexually abused but brutally killed. Have your heard about Patrick Kennedy? He's 43, who were sentenced to death in 2003 for raping his step daughter although he didn't kill her. Fortunately, the US Supreme Court ruled that the death penalty should not apply to a man convicted of raping a child saying that capital punishment only applies to murders. So, Kennedy was lucky.

What would you do if you or your lovely child were raped? What would you feel? Would you want the rapist to be sentenced to death? Even though the he did not kill anyone?

Well ladies and gentlemen, no doubt, the crimes of rape is a very serious offence, and the punishment should commensurate with the gravity of the offences committed. However, I am not of the same mind as you. A young girl was raped but not killed.

Since 2002, the Malaysian cabinet is mulling over imposing the death penalty for child rapists. Though a decision has not been reached as yet, there have been varied opinions within the country regarding the issue.

I as a law student really interested with this topic. From my audience-analysis interview, I know most of you want the child rapist to be sentenced to death. I will show you the research that I have done, by showing you the evidences the opposition of your thought.

Ladies and gentlemen, my discussion today will only focuses on those are rape the child only and not those who rape and murder their victim. Thus, I standing here to persuade you that death penalty should not be applied to a child rapist, firstly become the death penalty will only decrease the number of reporting of child rape, secondly its against the fundamental right to life and thirdly it is not a deterrent to child rape.

1) Mandatory death penalty will decrease the number of reporting of incidences of child rape.

a) Most on-going incidents of child rape and sexual abuse are not disclosed. This is due to its dynamics; the rapists being in position of trust and power over the child survivor. In 2001, there were 161 reported cases of child rape, out of which 83% were committed by people they knew (source: federal police statistic) and in 2006, there were 1303 rape cases in Malaysia among below 16 years old and 1653 in 2007. The child survivor is then placed in a difficult position for attacking the credibility of a trusted adult. Based on a research (Woman's Aid Organization), it is not uncommon to find the adult guardian of the child disbelieving her word. Treated this way, reported or investigated cases of child rape or sexual abuse then become the exception and not the norm. Discovery of such cases is generally because of overwhelming family conflict or incidental discovery by a third party.

b) Given the death penalty, this will further deter the child survivor and those around her from reporting. The child rapist could use this information to threaten or manipulate the child into silence. Studies Women's Aid Organization (WOA) have shown that if the child were aware of the possibility of the perpetrator being put to death as a punishment, the effect on her would be terrifying. This is coupled with the feeling of self-blame and guilt.

Do you think ladies and gentlemen, this is fair to the innocent child?

c) Moreover, those who are related to the perpetrator, such as their father, brother or uncle, may refuse to come forward to lodge a report for fear for sending the relative to the gallows. So here we can predict that, the victim would not come forward to make a report. Could they bring it to justice? No.

2) The death penalty is against the fundamental right to life of an individual as the offender did not kill the victim.

a) The death penalty is the grossest violation of the fundamental right to life and the right must be subjected according to the Universal Declaration of Human Rights. As it has been universally acknowledged that the death penalty is an inhuman form of punishment and violates Article 11 (1) of the Universal Declaration of Human Rights as well as Article 12 (2) of the Malaysian Human Rights Charter and Article 5(1) of the Federal Constitution.

b) Justice Blackmun (was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.) Cited a study in the Stanford Law Review by two longtime opponents of capital punishment, Hugo Bedau and Michael Radelet. The authors purported to identify "350 cases in which defendants convicted of capital or potentially capital crimes in this century, and in many cases sentenced to death, have later been found to be innocent." This finding was widely heralded in national press releases issued by the American Civil Liberties Union.

c) According to http://findarticles.com: England it was recently discovered that a 27 year-old man who had been put to death for rape and murder was actually innocent of the crime.

According to the Los Angeles Times for every seven persons on death row one is eventually found to be innocent. As just another example, Anthony Porter of Illinois served 17 years on death row and was within hours of execution when the real killers confessed to the crime. (Los Angeles Times, Sept. 1, 2003.)

d) Ladies and gentlemen, what would happen if the child gave wrong evidence? And afterward, the accused is sentenced to death? Is that what you want? Is that call Justice? What is a "fundamental to life" stand for? Well, for your info, the hasher the punishment, the greater the burden of proof placed on the victim and the prosecutor, which makes it more difficult for the rape to be proven. Better to put innocent people in prison than to find out you were wrong...

e) Ladies and gentlemen, the death penalty against the child rapist not only contravenes the human law but oppose the God law.

I enshrine that rape is not murder and death penalty against child rapist is not fair as it would be against God's commandment for a rapist to be put under the death sentence, regardless of whether the survivor is only a child.

I believe no religion permit that life can be taken simply.

As a Muslim I find the justice in my own holy book, Surah Ash-Shura verse 40: "The recompense for an injury is an injury equal thereto (in degree):…..: for God loveth not those who do wrong".

Also in the Bible: "Thou shalt no kill except in cases of murder…."

So, ladies and gentlemen, do we have the right to take the life of a person? Only God can take of life to the person who not kills anyone. That is why; death penalty should not be imposed against child rapist.

3) This is common believe, well ladies and gentlemen, the truth is the death penalty is not a deterrent to child rape.

a) While the government’s main rationale for introducing the death penalty is to deter would-be criminals, there is no empirical evidence that capital punishment has had such a positive deterrent effect. Arguably, there has been no significant reduction of crimes for which the death penalty is mandatory, such as murder, drug trafficking and
crimes under the Internal Security Act 1960 for possession of a firearm or part of a firearm.

b) Although some people may believe that death is a deterrent to crime it’s really not, death just doesn’t really scare people these days.

According to www.suaram.net or known as "Suara Rakyat Malaysia", from the period between 1970 and March 1996, there have been 349 executions in Malaysia, the majority of which were for drug offences. Since 1993, 50 new death sentences have been recorded. Based on news reports, in 1993, there were 29 executions, the highest ever for any single year; in 1994 there were 10 executions; 5 executions in 1995; 3 executions in 1996, and 2 executions in 1997. These figures are based only on press reports, so the actual executions may be higher.

It is encouraging to note that the trend is towards a decreasing number of executions. However official statistics show that the death penalty has been ineffective in combating the drug problem in Malaysia. The number of known new addicts has been on the rise from 7,154 in 1980 to 13,140 in 1995. It is believed that the number of known new addicts rose by 18 % in 1995.

Types	2001	2002	2003	2004	2005	2006
Sexual	251	324	430	529	566	670

Source: www.perakwomenforwomen.org

This statistic shows that the number of child sexual abuse is increasing. Ladies and gentlemen, do you think that death penalty guarantee to reduce the number? I am sure, no.

c) Rather than impose a death sentence, the Bar Council is of the view that reforms should be sought to increase the length of prison sentences for child rapists and allow for men of 50 years of age and above to be whipped. Current law prohibits men in this age category from being whipped, which releases many rapists from the full consequences of the law. Prosecutors may be encouraged to push for heavier sentences for rape and incest, including consecutive jail terms, as being an alternative to the death penalty.

d) Counseling is important: Rohana, whose profiling of the rape perpetrator project under University Institute Teknologi Mara, will be conducted in Seremban, Melaka and Johor next year, stressed that counseling was an important aspect of understanding why such heinous crimes occur so that solutions could be found to counter them.

Conclusion:

I would urge all of you to believe that imposing death penalty only increase the number of child rape that already go unreported, go against the fundamental of an individual to life and it is not a deterrent to child rape.

Death penalty should not be imposed on child rapists. Criminals need to live with their consequences for the rest of their life, not die for them. Criminals should have to face what they committed everyday of their lives; they need a punishment to fit their crime. Death is just an easy escape for the criminal. Ladies and gentlemen, don't make it easy.