Proposed amendments to Malaysias penal code concerning provisions on rape have drawn contradictory reactions from various national groups. The amendments seek to

• see rape by persons in positions of authority as an offence,
• split into two the penalty for rape to recognise aggravated rape so that courts are not bound by the minimum five-year jail sentence, and
• punish a husband for causing hurt or fear of death to his wife in order to have sex.
  

On the side that supports the amendments are womens and rights groups. On the other side is the countrys Bar Council.

Below are the reasons each side gave for their positions.

Womens and human rights groups fighting for the amendments

Bar Council which pledged to shut down the proposal

On whether the section on rape by men in position of authority is needed:

The section on rape by men in position of power is needed.

• There are many cases of employees being coerced into sex by their employers. Womens groups have received numerous complaints on this.
• This provision will also address the issue of numerous reports of faith healers and mediums misusing their relationship with female
• clients and raping them on the pretext of healing them.
• Malaysia does not need its law to provide for rape of women from men in position of authority.
• The provision is redundant: existing law already defines rape as sexual intercourse against the will of a woman.
• Women could easily abuse the provision should their relationship with men turn sour.
• The new section could even be used by a woman who offers herself to a man to obtain favours, but is unsuccessful. She may accuse the man of rape.
• The provision may also be used by a woman to fix or blackmail a former boyfriend who refuses to marry her.

On the proposed provision of punishing husbands for marital rape:

• The Council should know that not all assaults result in, or reveal physical injuries.
• The government has to recognise that rape does happen inside a marriage.
• This should only be applied when the wife is actually physically hurt.

On whether raping a pregnant woman without knowing of her condition should be considered aggravated rape:

• The issue is not about knowledge of the pregnancy. Whether or not a woman is pregnant, she should not have to endure such violation.
• If the woman does not, herself, know that she is pregnant, she would be traumatised more if the rape causes a miscarriage.
• If a rapist transfers additional pain to someone, this amounts to aggravated rape and a more severe penalty should be imposed.
• Knowledge of the pregnancy would be relevant in determining the offense.

Maria Chin Abdullah, executive director of the Womens Development Collective denies the clash between womens groups and the Bar Council. She said that the Council, based on its stance, just does not understand the seriousness of rape.

Freedom from gender-based violence, including rape and other forms of sexual violence, is a basic human right of women. Governments translating respect for this right into action would mean actions from them to reform legislations that provide overly narrow and patriarchal definitions of rape.

FYIs:

What Malaysian laws say about rape

The Malaysian penal code defines rape as sexual intercourse by a man with a woman under any of the following circumstances:

• against the womans will or without her consent;
• through consent obtained through coercion or fraud;
• with or without consent when the woman is under 16 (except where the irrefutable presumption of law applies in which a boy under the age of 13 is incapable of committing rape, or where the rapist is the victims lawful husband).

Only vaginal penetration by the penis constitutes rape. If an object other than the penis is used, or if penetration occurs in an orifice other than the vagina, the act is considered an assault with intent to outrage modesty, which carries a lighter punishment than does rape.

Marital rape is not recognised as a crime.

There are no provisions for aggravated rape (e.g., gang rape or rape of a pregnant woman)

Rape is penalised with 5-20 years of mandatory imprisonment and whipping.
Women of the World-East and Southeast Asia (ARROW and CRR), 2005

No physical evidence, no rape!

The evidentiary requirements for rape make it difficult for rape victims and survivors to have their rapists convicted. Generally, in order to establish the issue of consent, the burden of proof falls on the victim to prove that she put up some form of resistance or struggled with the offender during the rape. Where there is no evidence of physical injury, the assumption is that the rape did not occur.

Women of the World-East and Southeast Asia (ARROW and CRR), 2005.

Four Muslim males required as witness

In July 2002, a controversial bill on hudud (Islamic criminal law) was passed in the Malaysian state of Terrengganu. Under the bill, which has been given the royal assent by the states sultan but has yet to be enforced, the burden of proof for rape is shifted from the perpetrator to the victim, who must produce four credible witnesses (four good Muslim males) to prove her innocence. If she is unable to do so, she may be found guilty of slanderous accusations and punished with 80 lashes.

Women of the World-East and Southeast Asia (ARROW and CRR), 2005

Raped then whipped. Or stoned to death.

An unmarried woman who is pregnant is assumed to have committed zina (unlawful carnal intercourse, or illicit sex) even if she has been raped, and faces a punishment of 100 lashes. A married woman convicted of /zina/ may be stoned to death.

Women of the World-East and Southeast Asia (ARROW and CRR), 2005


Sources:

Asian Pacific Resource and Research Centre for Women (ARROW) and Center for Reproductive Rights (CRR). 2005. /Women of the World-East and Southeast Asia: Laws and Policies Affecting Their Reproductive Life/. CRR; New York.

Beh Lih Yi and Ng Eng Kiat. Bar council vs. rights groups over rape in /Malaysiakini/. 21 June 2006. Downloaded from <http://www.malaysiakini.org.my/content/view/3315/2/>