Victim Age Limit in Child Rape Cases Too Low: Women’s Rights Activists

By San Yamin Aung 26 September 2018

YANGON — Women’s rights activists have opposed setting the legal age limit of victims of child rape at 12 years old in a bill amending the Penal Code in order to give harsher punishments in cases of child rape.

The bill submitted to Parliament last month adds a specific provision on child rape under Article 376 of the Penal Code. Under the drafted provision, the punishment for the rape of a woman who is a person with disabilities or a child below 12 years of age is to be a ‘20-year imprisonment or imprisonment for the rest of life.’

A member of Upper House’s bill committee and lawmaker U Aung Thein who submitted the bill to the Parliament on Aug. 10 told lawmakers that a separate punishment needs to be adopted to effectively deter rapists.

The existing punishment, according to Article 376 of the Penal Code, ranges from 10 to 20 year’s imprisonment, but it does not identify a separate punishment for child rape.

Women’s rights activists and members of the public have called for harsher penalties to be imposed on child rapists. However, activists have pointed out that setting the victim’s age, for the rape to be considered child rape, at below 12 years old is contrary to existing laws and also provides a loophole for rapists in cases involving underage victims to avoid receiving harsher penalties.

Ma May Sabe Phyu, director of the Gender Equality Network, said she totally disagrees with the suggestion that only the rape of a victim under 12 years of age should be defined as child rape. She calls for the imposing of harsher penalties amid an increasing number of cases of sexual abuse and violence against underage girls.

Rape is the most common among those classed as ‘major crimes’ in Myanmar, with child rape cases making up 60 to 70 percent of all reported rapes. According to the Ministry of Home Affair’s report published in February, there were a total of 1,405 rape cases in 2017—of which 897 were committed against minors under the age of 16. In 2016, of an overall 1,100 cases, 671 were child rape cases.

Meanwhile, under the current 1993 Child Law, a child is defined as a person under the age of 16. This means the rape of any victim below the age of 16 is to be considered child rape. Last month, however, a revision to the law was made by the Ministry of Social Welfare, Relief and Resettlement and submitted to the parliament. In the revised law, the childhood status is to be extended to 18 years old in order to be in adherence with the UN Convention on the Rights of the Child (CRC) which the country signed in 1991.

“How can we have children defined as different ages in separate laws? It should be consistent,” Ma May Sabe Phyu said, adding the age should be set at under 18 years to be consistent with the revised Child Law and CRC, as well as to effectively protect underage girls.

Lawyer and director of Legal Clinic Myanmar Ma Hla Hla Yee said the proposed age bracket in the bill amending the Penal Code itself is also contrary to a provision under the Penal Code’s Article 375 which says that with or without consent, sex between an adult and a minor under 16 years old is rape.

She also raised concerns over another provision under the bill. In the bill, Article 376 (2) states that a person who commits rape against his own wife, and who is over twelve years of age, shall be punished with imprisonment for a term of up to two years, or with a fine, or both.

The lawyer said this provision would lead to an increase in child marriage.

Six Upper House lawmakers discussed the amendment to the Penal Code on Sept. 7. Two male lawmakers agreed that for the rape to be considered child rape, the victim’s age should be set at under 12 years of age; two other male lawmakers urged for the age to be set at under 10 years old; while one male lawmaker urged for the age to be set at eight. Some of them suggested that the death penalty is issued against perpetrators of child rape.

Naw Susanna Hla Hla Soe, a women’s rights activist who is now an Upper House lawmaker, disagreed with all of them. She suggested for the limit to be set at 16 years old, citing the significant rise in rapes against underage girls.

Ma May Sabe Phyu of Gender Equality Network said they would send suggestions regarding the amendments to the parliamentary commissions and that they are ready to negotiate with them.