Punishing young offenders: Consider psychological aspects

KUALA LUMPUR: Last month's case of a 15-year old girl who was charged with killing her newborn baby, has sparked public outrage and debate on various forums including social media platforms.

On Feb 15, the teenage girl was charged at the Kemaman Magistrate's Court with killing her newborn baby boy at a house in Seri Bandi in Kemaman, Terengganu between 7 am and 9 am, on Feb 8 under Section 302 of the Penal Code.

She was charged with murder after her son was found with stab wounds to his chest. The teenager, whose identity authorities have withheld, has alleged the baby was conceived when she was raped by a man in his 20s, according to police.

In the latest development, the Kuala Terengganu High Court yesterday dismissed the teenager's application to be released on bail pending the trial of the case.

Judge Datuk Hassan Abdul Ghani decided to reject the application after finding that the Magistrate's Court did not err in deciding not to allow the teenager to be bailed.

He also ordered the applicant to undergo a psychiatric evaluation.

Offenders under the age of 18 cannot be sentenced to death under Section 97 (2) of the Child Act 2001 and may be commuted to imprisonment for a period as determined by the Yang di-Pertuan Agong, Sultan or Yang Dipertua Negeri, depending on where the offence occurred.

REVIEW MURDER CHARGE

Meanwhile, the Attorney-General's Chambers (AGC) said, it can still examine and review the murder charge against the teenager, pending the outcome of a probe into allegations the baby was conceived of rape.

In a statement, it said the murder charge filed against the girl was "a transparent criminal justice process" based on statements and documentation by witnesses, forensic officials and pathology experts.

But prosecutors can "review the original prosecution" and change it to another charge "based on additional developments, as well as the results of the probe into the rape incident", it added.

It said the teenager would be tried through a court process in accordance with the Child Act 2001 (Act 611) as the accused is a child as defined under the Act and if convicted, the child will be ordered to be detained under Section 97(2).

"Information on the rape incident was only known after the teenager was arrested, where a police report was lodged by her on Feb 8. Following the report, an investigation paper was opened and investigations are still ongoing," it said.

PSYCHOLOGICAL FACTORS, BACKGROUND

But where the law sees a gory, unthinkable murder, psychologists and legal advocates see such cases a constellation of biological, social, and psychological conditions that descend upon these young women with catastrophic consequences.

Sharing her thoughts on the case, a psychology expert, who is a senior lecturer at Universiti Malaya's Department of Educational Psychology and Counselling, Dr Noor Aishah Rosli said societal stigma has labelled such cases of young unwed mothers who committed such acts (out-of-wedlock pregnancy, infanticide) as those who are of loose morals.

However, several issues must be considered especially from the psychological aspect before a final decision is made on the fate of the teenager.

"At that point of time, she must have been been in a state of confusion, anxiety and emotionally unstable as well as trauma.

"The effects of rape (based on reports) and pregnancy out-of-wedlock can cause deep psychological trauma for the victim. Even more unfortunate, she has been accused of killing her own baby. Overwhelmed by fear and shame, she could be experiencing severe depression.

"In my view, the act (killing her own newborn child) was committed in the brink of insanity and was not done out of 'fun.' The girl panicked and did not know what to do and she was also going through extreme fear," she told Bernama recently.

Elaborating on the issue, Dr Noor Aishah who is also the founder of CPC International Sdn Bhd in Bangi, said family background should also be factored in including her upbringing and details on what happened to her earlier.

Dr Noor Aishah said this should not be perceived as condoning the youth's wrongful act, but rather to ensure she is given a fair trial, adding that the public should not merely focus on the murder charge against her.

"In this case, a young girl engages in sex or has been raped and later becomes pregnant. Subsequently, when she gives birth and the baby is killed, it becomes a police case and she will be charged under a certain act.

"However from the psychological aspect, there are several issues that need to be looked into before she gets punished under the law. For a 15-year old girl who is faced with a death sentence, what does she know? She is still immature.

"We (society) must support her emotional well-being and help her cope with the crisis. While this has taken place, we may consider other punishments which are more suitable for her age," she added.

COMPREHENSIVE SEXUALITY EDUCATION

Dr Noor Aishah, who believes that a comprehensive sexual education is crucial to curb the social illness such as dumping and killing of babies among youths, said, this group should be given exposure to safe sex education including protective and preventive measures against pregnancy.

This does not imply that premarital sex is encouraged or that their wrongful acts should be supported, but at least, they should be given exposure to sexuality education.

"As an example, youths who live in the kampung or in the remote areas may lack the knowledge and are not exposed to safe sex education. They may not have second thoughts about protecting or preventing pregnancy, but are more driven by their hearts' desire.

"As such, when this happens (sex and pregnancy), they panicked. They just don't know what to do, afraid of being disowned by their family and public stigmatisation towards them. So, they take the shortcut to solve their problem by dumping their newborns, etc.

"If they are given such exposure including information on non-governmental organisations (NGO) that can help them, many social problems such as baby dumping could have been avoided," she said, referring to the 'Baby Hatch' initiative.

She said Muslim parents in particular should strengthen the family institution by serving as role models for their family, and they can instill in their children the best social, moral and religious values, which are found in Islamic knowledge.

At the same time, they should also remind their children on social limitations and the importance of abstinence as well as the negative consequences, she added.

WOMEN - ALWAYS THE VICTIMS?

On the notion that women are always victims of both social stigma and the law, Senator Fadhlina Sidek who is also a lawyer, said in fact, the issue on violence has often been gender-based as there is a power imbalance in relationships.

Other issues which have negative impacts on women include underage rape, premarital pregnancy, baby dumping, mental health, infanticide and child marriage, she added.

The question is why women have to bear the brunt of social stigma and the law while the men are spared?

To the question, Fadhlina who is also Family Empowerment Society deputy president said, her involvement in an NGO which manages the Pusat Bimbingan Remaja Hamil Bayt Al-Rahmah in Ampang, Selangor, has shown that most underage rape cases and premarital pregnancy were not reported to the authorities.

"Firstly, the parents of both sides do not make any police report. Secondly, there are negotiations for the couple to be married, hence assuming that the case is solved and can be kept a secret.

"Thirdly, the girl who is pregnant out-of-wedlock will be placed in a shelter home, but the boy is protected by his family or could not be traced.

"Fourthly, there are cases of gang rape, whereby the traumatised victim will take a long time to recover, and as such, reports and investigations on these cases will also be time-consuming.

"For action to be taken, there should be a police report and investigation. That's the reason why we classify it as gender-based violence to show the one who bears the brunt of the violence is the woman. It is our hope that action will be taken and the man involved will be held responsible but finally, it goes back to the victim and her family to decide," she said.

Fadhlina said, it is rather difficult to explain in detail why the victim and her family refuse to report to the authorities.

This is because each and everyone of them have their own reasons such as fear, harassment, shame, financial constraints, family conflicts and both families are focused on marrying off their children. At the same time, the boy's parents do no want their son to be implicated as they are afraid that his future will be at stake if he is imprisoned for rape. Others include threats and that they do not wish to prolong the issue.

"Actually, many parents need support and assistance. Often times, they are not sure what they should do and they appear as though they are not concerned or not fighting for their daughter's rights. Every case is not the same and we always ensure the girl (in this case) gets a fair hearing and is protected," she added.

Fadhlina said as for laws related to child rape, provisions are stated under the Penal Act (Section 375 and 376) with harsh punishments serving as a deterrent to the offenders as the affected victims are under-age or they are still children (below 18).

"The question of consent simply does not arise as it involves under-age children who should be protected," she said.

CHILD MARRIAGE NO SOLUTION

On child marriage which is said to solve the social ills among youths, she opined that it is not "the way out" of the problem despite the notion that the marriage will elevate the girl's status as a wife and will be entitled to certain rights.

"In the child marriage context, the matter should be given serious attention as it affects their welfare. Child marriage are usually associated with school dropouts, poverty, premarital pregnancy, social deviation and the youths are often accused of being wayward and uncontrollable.

"Some parents believe that marriage will 'tame' their children with the hope that they will grow up into mature and responsible adults. They are mistaken. Children are children. There are reasons why, by nature or by law, a child's age is classified as such.

"Based on our experience (NGO), child marriage, which is a form of gender-based violence, robs children of childhood. Girls and women who are married younger, are more likely to experience physical and domestic violence. It also increases the risks of mental health disorders and deaths as well as developing blood clots during child delivery," she said.

The role of strengthening the social ecosystem does not rest on the family institution alone, she said, adding that every level of society should play their respective roles.

"Whenever there is a family breakdown involving their children, parents are the hardest hit as they get the brunt of social stigma. This mindset should change as more parents are in need of help and support whenever a social deviation involving their children takes place.

"We as members of the community must play our role more effectively in strengthening the social ecosystem," she said.

Towards this end, Fadhlina proposed a literacy and awareness programme as well as gender-based advocacy to end violence against women, in addition to compulsory schooling to ensure no child drops out, with every child given the right to education.

-- BERNAMA