NGOs laud Govt proposal to amend Penal Code’s definition of rape


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  • Saturday, 04 Jul 2015

THE Government’s proposal to amend the Penal Code’s definition of rape in the next Parliament sitting is a welcome development indeed.

According to Minister in the Prime Minister’s Department Nancy Shukri, the Attorney-General’s Chambers is in the process of finalising the amendments and consulting medical professionals and NGOs on the matter.

The current definition of rape, she said, was too narrow and limited only to penile penetration.

“They are trying to look into other possibilities, to include not just fingers but other objects as well. Hopefully, we can make it in time to table the amendments at the next parliamentary sitting,” she told reporters in Kuala Lumpur on Thursday.

This comes in the wake of what has become known as the finger-rape case. On May 7, the Court of Appeal acquitted and discharged 60-year-old Bunya Jalong of raping a minor in Sibu in 2011.

He had told that court that he impregnated the girl through the insertion of a semen-smeared finger. The girl gave birth to a boy on Feb 5, 2012, with a DNA test confirming that he was the father.

Following the acquittal, there have been many calls for the current definition of rape to be amended.

The Sarawak Women and Family Council, in a statement issued for the Citizens Against Rape rally last month, said the acquittal highlighted the inadequacy of the Penal Code’s definition of rape.

“A total of four charges were brought against the appellant: one under Section 376(2)(d) of the Penal Code and three under Section 376(1) for alleged sexual intercourse with a minor but with consent.

“The appellant/alleged offender denied having sexual intercourse with the minor because there was allegedly no penile penetration as he allegedly used his semen-smeared finger which resulted in her pregnancy.

“The common public may find this evidence implausible, but that was the Court’s finding and we cannot interfere with that now,” it said.

It therefore called for an urgent amendment to the definition of rape in Section 375 of the Penal Code, pointing out that the Court of Appeal panel had made a similar call.

The council noted that “penetration” was an essential ingredient for an offence of rape, adding that in Malaysian courts, this was generally taken to mean penile penetration of the vagina.

“The ‘finger rape’ apparently did not constitute ‘penetration’ as defined by the Penal Code and as commonly interpreted by the Malaysian courts, thus the acquittal and discharge,” the council said.

As such, it said it was “high time” for the Attorney-General’s Chambers and Parliament to look at the development of the law in other countries, such as Britain’s Sexual Offences Act 2003, the 1997 Anti-Rape Law in the Philippines and the law in France, and make the appropriate amendments.

“They have given wider and specific descriptions of what constitutes sexual activities, such as the mode employed, lack of consent and other sex offences, and they have used gender neutral terms, because we all know that sexual offences are also committed against men and boys too.”

The council also urged the courts to give a more liberal interpretation of the definition of rape when the victim is a child.

Under Section 375(f) of the Penal Code, sexual intercourse with a minor, with or without her consent, is an offence when she is below 16 years of age.

“The law deems them incapable of giving informed consent, not forgetting that there is always the element of undue influence and exploitation of the minor by the adult,” it said.

It emphasised that laws must be there to protect members of society when they are legally, physically and emotionally incapable of defending themselves.

“We must not allow another innocent child, girl or boy, to be the victim of rape by conniving adults before we act, before the law is amended. Our children and grandchildren are watching us, what are we doing to protect them from becoming the next victim?” the council said.

We now have an answer to that question - steps are being taken to broaden the definition of rape.

The proposed amendments must be comprehensive and up-to-date so as to uphold the safety of women and children by providing them with better protection from sexual violence.

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