Dateline Irrawaddy: ‘If the Death Penalty is Introduced, Some Child Rape Cases Will Go Unreported’

By The Irrawaddy 3 December 2016

Kyaw Kha: Welcome to Dateline Irrawaddy. This week, we’ll discuss what actions should be taken in child rape cases, which have recently entered the spotlight in Burma. Director Daw Htar Htar of the Akhara Group—which works to protect the rights of women and children—and lawyer U Robert San Aung join me for the discussion. I’m Irrawaddy Burmese Edition reporter Kyaw Kha.

Disgustingly, we have seen reports of child rape almost every day lately in both mass media and social media. Daw Htar Htar, you work to protect women and children. How bad is the situation?

Htar Htar: The situation is fairly serious. It has not only just become serious though. It was already serious. Because of greater press freedom, more victims dare to report these crimes now.

But it is also true that rape cases have increased. There have been around 800 reports of rape against women and children so far across the country this year. If only child rape cases are counted, there were around 500 in the past 10 or 11 months, with December yet to come. The total number has increased compared to previous years.

KK: Who are the offenders? Are they usually from the victims’ families?

HH: Regarding child rape, about 70 to 80 percent of the offenders are from the victims’ immediate families or are otherwise related to the victims. This is the same as in other countries.

KK: There has been criticism in the media and online that the penalties for the crime are not tough enough to deter potential child molesters. What do you think, Robert San Aung?

Robert San Aung: Police are the first people responsible for establishing a case. Rather than handling these cases vigorously and dutifully, police stations slack in their duties, which essentially encourages sex offenders.

This makes it quite hard to address the problem of child rape. The best option I could suggest is to form an anti-child rape squad, similar to the already-existing anti-human trafficking squad. What happens now is that police do not immediately open a case when a rape is reported at a police station. Instead, they procrastinate by giving various excuses; such as the head of police station is absent. That is a violation of the police manual and criminal code of procedure.

Suppose you have suffered from their mishandling and filed a complaint against them. They never get punished, only transferred to another police station at worst. So, the first thing we need to do is to force police to work in line with the law. Upper echelons of the judicial system need to monitor and punish judges who don’t perform their duties well. Only then, can this problem be solved. There is rampant sexual abuse of children across the world. In our country, rape cases have increased compared to previous years. This is very bad. The cases of rape and murder where the bodies are left in public places are the worst. This blatantly challenges the country’s rule of law.

KK: There is weakness among law enforcement personnel. But are the laws themselves weak?

RSS: According to Article 376 of the Penal Code, up to 20 years’ imprisonment or 10 years’ imprisonment can be handed down for rape. But in reality, courts usually don’t deliver such long sentences. This has provoked public outrage and people have called to introduce the death penalty. In cases where the offenders are under 16, the death penalty cannot be handed out because they are minors.

Only when imposing a sentence of 20 years does not work should we consider increasing the penalty. People have called for the death penalty because in some cases, police do not establish cases properly and courts therefore only hand down light penalties. In rape cases, there are accomplices as well as those who aid and abet rapists. Police choose not to bring charges against them because they think cases will be messier with more defendants. That’s why rape cases have spiraled out of control.

KK: Ma Htar Htar, organizations like yours are taking steps outside of Parliament to eliminate child rape. What is your organization doing and how much progress has been made so far?

HH: There have been calls for the death penalty against offenders and new laws against child rape. As parliaments and legal institutions start to take action, we will work closely with them to find short and long-term solutions.

KK: What particular measures are women’s organizations taking outside Parliament to raise the issue in Parliament?

HH: In particular, we educate policewomen to properly handle rape victims when they come to file complaints at the police station. When filing a complaint, the rape victim—or the mother of the rape victim if she is underage—has to read the complaint letter thoroughly before signing it to ensure that the officer correctly documented the victim’s account.

In some cases, police incorrectly record rape cases as attempted rape. We are educating policewomen regarding this. And we call for appropriate penalties according to the provisions. In practice, some offenders are given four years and some only get two years. If a rapist is only given two years, we don’t know if he will commit the same offense against after he is released. It is dangerous for the victim’s family. If the law prescribes 10 years’ imprisonment, offenders must be handed 10 years. For the time being, we will demand suitable penalties. In the long run, we will cooperate with parliament to properly enforce the laws and amend them if necessary.

KK: There have been calls for the death penalty against molesters. What do you think about it? Do you think they deserve death penalty?

RSS: The death penalty can be given for the rape of either adults or minors under certain circumstances. It can be given if a victim is raped and killed under Article 376/302 (1) (a) or (c) of the Penal Code. But courts do not give the death penalty and police also do not establish enough facts for cases to attract the death penalty. They only loosely establish cases. In a case in Hledan Township, a victim was raped and killed and the inspector should now charge the offender with both rape and murder in court. Rape, when coupled with murder, deserves the death penalty. We have to see if this will be established. What happens is that most police do not establish the facts of the cases comprehensively.

KK: Do you support the death penalty?

RSS: Under those circumstances, the death penalty must be applied because it is rape and murder.

KK: What do you think, Ma Htar Htar?

HH: There have been loud calls for the death penalty for rapists. I understand these feelings. They deserve the death penalty considering the things they did.  But considering that even suitable penalties are not currently given, will the death penalty actually be imposed? Even if the death penalty is introduced, suppose a child is raped by her father. No daughter wants to participate in the evil deed of having her father killed. In a religious country like Burma, people do not even kill mosquitos or flies. No daughter wants her father, uncle, brother, or grandfather to be killed because of her. If the death penalty is introduced, some child rape cases will go unreported. Now because of transparency and public support, many victims are brave enough to report their cases. The death penalty will only discourage them from reporting. According to international precendent, the death penalty discourages rape reports. If a suitable penalty is given according to the law, the death penalty is not necessary because it will only worsen the situation.

KK: What measures should be taken to curb rape cases?

RSS: If tough penalties were given in accordance with the law, cases would decline.

KK: What is your view?

HH: First of all, it is because there is no rule of law, as U Robert San Aung said. The rule of law is of utmost importance. Laws must be enforced effectively. I would like to call for effective enforcement of the law at each level—ward level, township level, police stations, courts and so on.

KK: We can conclude from our discussion this week that the law needs to be properly enforced to fight against child rape cases. Thank you all for joining the discussion.