In response to the special report released by Malaysiakini yesterday titled ‘What happens when the sex offender is a child?’, I wish to raise an issue that many of us choose to ignore, namely the fact that the law on statutory rape leans heavily in favour of females.

Statutory rape is an offence where a male carry out sexual intercourse with a female under the age of 16 regardless of whether consent was given by her. The basis behind the creation of the offence is to prevent children from engaging in sexual intercourse at a tender age.

Leaving aside the religious element to the prohibition, the paternalistic nature behind the legislation can be said to serve an important purpose particularly in cases involving sexual-grooming or child prostitution.

However, when the offence involves a male who is also underage, only the male will face prosecution and not the female. This is especially unfair when consent was given by the girl.

Why? Because if the rationale behind the legislation is to prevent children below the age of 16 from engaging in sexual intercourse, shouldn’t the underage female be prosecuted as well if she was a willing party to it?

While many parties often cite the words ‘abuse’ and ‘exploitation’ when the victim is underage, the truth here is that the need ‘to protect children’s innocence’ do not conform to the social reality that children today mature sexually way earlier than children 10 years ago.

Such ‘exploitative’ impression can be said to be attributable to the fact that the word ‘child’ is only loosely defined in this body of work as a child of five is rarely distinguished theoretically from a child of fifteen or sixteen.

Therefore it is undoubtedly true that usage of such words in certain situations are over exaggerations.

Subsequently, one also cannot ignore the fact that the reasoning behind the setting of the age of consent is purely hypothetical as it is very unlikely that an ‘innocent child’, at the arbitrary age of sixteen will definitely go from a position of powerlessness to one of autonomous adult, or from a position of sexual ignorance to a position of sufficient sexual knowledge.

In addition, as the ideology of feminism can be traced to the demand for equality, such as equal wages as men for the same work position or equal opportunities in education, it is an irony that when it comes to sexual activities, feminists argue that “formal equality is a concept inapplicable to women and should be replaced by ‘substantive equality’... instead of being ‘gender-blind’, the law should take women's social inequality into account”.

As stated by Hinchliffe, “if a different standard is required by which to judge women because they are unequal, then social inequality may be formalised in law... If women are not susceptible to the same assumption of equality and rationality as men, then women may be excluded from the presumption that they are capable actors.” So, don’t we all want to be equal?

In summary, while many organisations are concerned about the rehabilitation process of ‘child sexual offenders’ and recidivism rate, as far as I’m concerned no organisations have openly urged the reform of this part of the law to include females as potential ‘perpetrators’ of the offence of statutory rape.

In my humble opinion, law reform should be carried out on this area to allow the element of gender to be ignored where consent was given by the underage female and to take into account the age of defendant in comparison with the age of the ‘victim’ as well as the relationships between them to avoid situations where only males will carry the stigma of being ‘child sexual offenders’ for the rest of their lives for consensual sexual activities.