SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

the conviction of the accused for statutory rape but did not sentence him to the minimum
mandatory 7 years imprisonment but to 5 years. The court held, “the evidence that has come
on record clearly shows that the prosecutrix had willingly accompanied the appellant to the
places visited by them and spent more than six months in his Company. The prosecutrix was
more than fifteen and a half years old when she eloped with the appellant. The appellant was
a young man of about 23 years when this incident took place. The main circumstance which
persuades me to take a lenient view in the matter of sentence and awarding less than the
minimum prescribed sentence of seven years is the consent on the part of the prosecutrix,
which is more than evident from the facts of the case.” [emphasis added]
However it is difficult to quote this case as progressive case law as the basis on which the
judge found that the girl had consented was her not raising an alarm on multiple occasions
when she was in a public place, discrepancies in her statements and the fact that the accused
took her to his home in front of his relatives. The case is being discussed to indicate that
judges struggle in cases where they believe (rightly or wrongly) that the girl has consented to
sex but is below the statutory age limit.
In Thailand 157 the age of consent for sex is 15 for all genders. The law recognizes that young
persons may have consensual sex below the age of consent and provides that in situations
where the offender is under 18 years of age and the child is between the ages of 13 and 15
and the sex was consensual there will be no offence of statutory rape, if the court grants
permission for their marriage.
The Indonesian law related to the age of consent and statutory rape makes for an interesting
study. Under its Penal Code, a person who has “carnal knowledge” of a woman below the
age of 12 shall be punished with maximum imprisonment of nine years. 158 The same
punishment is applicable where the woman is below the age of 15 years but prosecution in
such cases can only be instituted on a complaint 159 or where the act results in serious physical
injury or death 160 or the perpetrator is of the same sex 161 or the act is committed by giving
gifts or promises of money or goods or abuse of dominance or deceit 162 or where the woman
is the child, step-child or foster-child of the perpetrator. 163
The laws of the research countries, apart from the wide variations in the age of consent for
sex, are of particular concern in their approach to married girls. As noted elsewhere, several
of these countries have child marriage restraint laws; the provisions of their criminal
legislations however undermine these laws as in the case of India where the age of consent
for sex is lowered to 15 for married women, marital rape is recognised only where the girl is
under the age of 12 and only a two year punishment is prescribed where the married girl is
between the ages of 12 and 15. Of course even in the case of marriage laws there is
significant discrepancy in the age of marriage. 164
157 See Section 277, Penal Code, 1956 (Thailand)
158 Article 287(2), Penal Code, 1982 (Indonesia)
159 Article 287, ibid.
160 Article 291, ibid.
161 Article 292, ibid.
162 Article 293, ibid.
163 Article 294, ibid.
164 See Chapter 3 on State Regulation of Marriage and Family
53