Under section 113 of the Evidence Act 1950 ("the Act") it states that it is presumed in law that a boy under the age of thirteen years of age is incapable of committing the offence of rape. This section provides a shield for those under the age of thirteen as it is legally presumed that he is incapable of having sexual intercourse and this presumption is irrefutable and cannot in any circumstances be denied. Looking at the explanation given, it is clear that such a provision should not have existed in the first place !
Such a provision is archaic in nature and irrelevant in today's society as it not only gives young offenders the opportunity to commit such a heinous act, it also reflects poorly on the image of the society. There is a case which shows how flawed this section is. On Oct 21,2000, a five year old girl by the name of Nur Shuhada Burak, was raped and murdered by her 12 year old neighbor. Her body was then dumped in a water tank which was on top of the roof of the premises. The punishment which followed was seen to be too light and only a "slap on the wrist" and this generated a public outcry.
Such emotional response from the public is understandable in such a case but what can the judge do ? He is tied down by the legal flaw of section 113 of the Act, tied down by the imperfect legal technicality which is present in section 113. As long as this section remains, many more young offenders of rape will be glad to know that even if there is evidence of the boy's semen present in the victim's vagina, even if there is a video recording showing clearly that the whole raping incident by the boy done to the victim, even if there is an eye witness present at the crime scene and has witness the act, the boy will still be perfectly shielded by this act ! Justice is suppose to reflect the public interest of the society, but such a section clearly does not do so.
This provision must be abolished and the sooner the better. Other Commonwealth countries such as Singapore which has similar provisions as section 113 of the Act has already abolished those acts and we should be doing so as well. Another thing to be pointed out is that the act of raping is not dependent on whether the offender has reached the age of puberty or not, but it depends on whether penetration has been done. The ability to penetrate depends solely on the ability to have an erection and not the ability to emit semen and thus the presumption in section 113 seems to be false and misguided.
Hopefully this section would be abolished as soon as possible so as not to give ultimate protection to any young offenders .
Written by Lee Zheng Ying (Aaron)
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