Logo of Phnom Penh Post newspaper Phnom Penh Post - Virginity ruling lets rapist off the hook

Virginity ruling lets rapist off the hook

Virginity ruling lets rapist off the hook

Tha Sokha, 19, tried for the rape of a six-year-old girl, will serve only six months

in jail for indecent assault because the rape of his victim "was not deep,"

said Kandal Court Judge, Kong Kouy.

Though the trial was held on December 1, Kouy told the Post she delayed issuing a

verdict until January 3 because she wanted to review the testimony and evidence.

That review resulted in Kouy ruling that because the penetration "was not deep"

and the victim's "virginity remains," she would change the charge against

Sokha from rape to indecent assault.

The judge's decision contradicts Article 33 of the UNTAC Criminal Code, which states

that "rape is any act involving penetration against a non-consenting person"

and does not specify whether "deepness" is a factor.

The same Article states that "anyone who rapes or attempts to rape another person

of either sex is guilty of rape and shall be liable to imprisonment for a term of

five to ten years."

The downgrading of Sokha's charges is even more questionable in light of the fact

that Article 42 states indecent assault is "any other sexual act not involving

penetration."

But Kouy told the Post: "virginity is the important thing because it can confirm

if the girl was raped."

A midwife who examined the girl a day after the Dec 31, 1999 attack, certified that

the girl had been raped but that her "injury was not so deep or so serious."

An independent examination by an NGO medical team 20 days later concluded the girls

hymen had been torn and she suffered pains around her genitals.

Though the results of the independent medical examination were presented to Prosecutor

Kry Sok Ie, he told the Post he never received information that the victim's hymen

was torn.

Sokha was sentenced to only one year in jail - the minimum sentence for indecent

assault - reduced to six months because the judge accepted that his age was 17 at

the time of the rape - despite the fact that his family book states his age was 18.

Sokha's mother testified that the family book was fake.

Sokha was also ordered to pay 800,000 riel compensation to his victim. Having already

served five months in jail while waiting for trial, Sokha will be released in February.

While Article 68 of the Criminal Code allows the punishment of a convicted person

under the age of 18 to be reduced by half, Article 42 states that if the victim of

indecent assault is under 16 then the sentence should be doubled.

Thus if the judge followed the law, Sokha should be serving at least one year in

jail.

After initially ignoring the girl's family's complaints against Sokha, district police

brokered a compensation deal between the families of the victim and perpetrator.

The girl's parents thumbprinted a contract in which they would receive 1.5 million

riel in compensation for the rape of their daughter, but they never received the

money.

Upon taking her case to the commune police station on Jan 11, the victim and her

sister reported receiving death threats from a commune police officer named Lon if

they continued to "talk about rape".

Sokha was finally charged with rape and arrested on August 11, 2000.

But in a few weeks Sokha, who is from one of the village's wealthiest families, will

be a free man. His young victim, who is from one of the poorest, still suffers from

nightmares and panic attacks.

The problem, says Ny Chakrya, Deputy Chief of the Woman Section for the human rights

organization ADHOC, is that police and the courts don't take rape seriously except

if they believe they can get bribe money from the offender.

He said police and courts do have a good understanding of the laws and procedures

pertaining to rape cases - but they simply choose to ignore them.

Chakrya said offenders with power and money often interfere with the judicial process

by bribing police or court officials to either have charges dropped or reduced

He believes the present laws for rape and indecent assault are "acceptable"-

but just poorly implemented.

Chakrya said ADHOC has received many more reports of rape during the past year, but

it is unclear whether rapes are on the increase, or that the crime is being reported

more often.

There is a concern that more younger girls are being raped, but Chakrya is uncertain

why this is occurring.

Sophea Ung, Program Officer for the Cambodian Women's Crisis Center, said a belief

among Cambodian men that sexual intercourse with a virgin is good for a man's health

might be partially to blame for this trend.

Ung agreed with Chakrya that corruption among police and court staff is a major problem

that needs addressing before poor rape victims can ever hope of receiving justice.

Nick Rine, a Clinical Professor of Law at the University of Michigan and Visiting

Professor at Phnom Penh's Faculty of Law and Economics, said both the present laws

and the draft penal code pertaining to rape and sexual assault contain serious flaws.

He said the question of consent is perhaps the biggest weakness - for both current

law enforcement and in the draft penal code - when it relates to minors.

"People still think consent is an issue even for kids - as if it has some

relevance that a child of 13 or 14 consented to have sex.

"Unless a victim of a sexual assault physically tries to fight off the assailant,

then she has consented [in the minds of police and the courts]. This is a view that

most of the world rejected quite awhile ago. A woman with a knife at her throat is

not expected to try to fight," he said.

Rine said the draft code, now before the Council of Ministers for debate, appears

to be nothing more than a "bad translation of an unsystematic collection of

criminal code provisions from 19th century European codes." Those outdated ideas

are obvious throughout the draft code, but most particularly in items predominantly

affecting women, said Rine.

"The listing of aggravating factors which enhance punishment is especially offensive,

including such thing as marital status and virginity. Most modern penal codes have

abandoned the idea that a defendant can make a rape victim's sexual history a relevant

issue in a trial.

"This code explicitly makes it an issue, with all the attendant damage to victims

and to the integrity of the legal process," said Rine.

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