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Why is a 15 year old girl being punished?
Niumathulla Idris
Haveeru Online, 28 Feb 2013
Translated by Maldives Culture



A 15 year old girl from Feydhoo island, Shaviyani atoll, fell pregnant and after she gave birth, the infant was killed and buried. She has been sentenced, but many people misunderstand the reality of this case. Many people think that her step-father raped her, and as a result of that rape she fell pregnant and gave birth, and that it was for this reason she was prosecuted. Many are saying that the girl was a victim who is now being punished.

Regarding the matter of the killing of the child after birth, the accused in that matter are the girl's mother and stepfather. It seems the girl had no role in the infanticide. The girl's mother and stepfather are being prosecuted over that matter. Their trial has now commenced.

The case against the girl surfaced because of admissions she made during the investigation into the killing of the infant. The charges against the stepfather and others accused of sexually violating the girl, and the matter over which she has now been sentenced, are two different cases.

When members of the public start talking about corporal punishment for a girl who is not yet 18 years old, we need to get to the heart of the matter. The sentence is being criticised and things are being said about it, when what really happened is very different. When this matter was sent to the Juvenile Court, there were no witness statements. Therefore, if the girl had not admitted to the offence of fornication at the trial hearing, she would not have been sentenced and would have been released.

Under Islamic Sharia law, to prove the offence of fornication, either four witnesses, or the admission of guilt by the accused, are needed. The girl was sentenced because she admitted to the offence.

The question is why, after she has been given protection and counselling for a significant period of time and the assistance of a state lawyer, she has voluntarily admitted her guilt even when there was no other evidence before the court? The girl may not have been aware that had she not pleaded guilty at the court she would have been released, but her lawyer must have known.

Efforts made to find answers to this question reveal that during investigations the girl confessed to certain liaisons, and that she was aware it was wrong and she wished to repent and receive punishment for those acts. She did the same at her trial. That is what the girl wanted. Under statutory law she is legally a child, but Islamic Sharia and other laws state that she had reached the age of consent.

Section 25 of the Special Treatment of Child Sex Offenders Act states that if it is proven that a child between the age of 13 and 18 gave consent to an act of sex, it must be accepted that consent was given, and the child will be punished. However, it cannot be accepted under any circumstances that a child under the age of 13 can give consent.

Under Islamic Sharia, a child that has reached baalighu [maturity/puberty] must take responsibility for offences committed.


Now let us address the issue that the girl is the only one being punished.

The investigation failed to find the person or persons who had sexual relations with the girl. Even if those people had been found, by pleading not guilty and in the absence of four witnesses, the accused people would have been released. For this reason a case could not be mounted against those people. And the girl has admitted guilt while there were no witnesses.

'From the Sharia point of view, if a child who has attained the age to take criminal responsibility accepts that an offence has been committed, wishes to repent and receive punishment for it, that opportunity must be provided. When one admits to fornication before the judge, the judge will have no other option than to hand down a flogging sentence,' said a member of the legal profession who spoke on condition of anonymity.

This person also said that when people requested not to go ahead with the prosecution in this case, the Prosecutor-General [Ahmed Muizzu] reconsidered the case and decided to proceed because of the circumstances. 'If the person accused of fornication wishes to be punished, the case will proceed.'

According to the laws of Maldives regarding Sharia flogging offences, a child above the age of 10 years must take criminal responsibility for the offence of fornication.

Also, according to the Clemency Act, anyone who has been found guilty of an Islamic Sharia flogging offence is not eligible for clemency under that Act.

Although the girl has been subject to sexual abuse, there is one thing that is clear from the way the prosecution case arose and progressed - there were instances of consent, and instances where she was forced. This case arose regarding the instance or instances where consent was given.

When the Prosecutor-General decided to proceed with the case, he was subjected to criticism, and when court handed down the sentence, the court came under criticism.

When we look at the history of this case, we see neglect on all sides. Before the girl is blamed, all the others should be blamed. They range from the people of the island who knew about the circumstances of the child and her family, to the institutions of that island and the relevant state departments.

In 2009, the Gender department investigated a complaint that this girl was being sexually abused. Even then, everyone on the island had known for a long time about what was going on.

An investigation was carried out in 2011 into a complaint she had been sexually abused by her stepfather, but no evidence was found. It was a superficial investigation that was then abandoned.

The Children's Rights Act imposes an obligation on all to report to the relevant authority if they become aware of a child being subjected to abuse, including sexual abuse. In the case of this girl, all have failed. However, the child has also offended under Shariah law principles.




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