PUTRAJAYA: Incestuous rape will carry a prison term of between 15 and 30 years and a minimum 10 strokes of the rotan, the Cabinet has decided.
Under a proposed amendment to the Penal Code, incestuous rape that results in death will be punishable by the death sentence, Datuk Seri Dr Rais Yatim announced at his office yesterday.
With the proposed new Section 376C, expected to be tabled in Parliament this March, there will be three categories under rape in the Penal Code, said the Minister in the Prime Minister’s Department.
Currently, Sections 375 and 376 deal with rape and Sections 376A and 376B deal with non-consensual incest. A rape conviction carries a jail term of between five and 20 years and whipping and the provision for incest as a separate offence – which was passed by Parliament only in 2001 - carries a penalty of between six and 20 years' jail and whipping.
Apart from the Penal Code, the Government’s move to get tough with incest will involve major amendments to the Criminal Procedure Code, the Criminal Justice Act and the Registration of Criminals and Undesirable Persons Act, among others.
Earlier, Dr Rais had also said that under the proposal, the names of all rape offenders – regardless of whether it involved incest - would be included in the Register of Criminals and Undesirable Persons.
“Before this, they were let alone. This new measure will enable the police to follow up on the movements of those who have served their prison terms and have been released back into society.
“These offenders can be required to report periodically to the district police station for a specific period of monitoring of their behaviour or to fulfil other conditions. Statistics show that these offenders tend to repeat their crimes,” he said.
He added that victims and offenders would get counselling and additional services to help them recover from trauma and to reform, respectively.
Dr Rais further said that the DNA information of convicted rapists would be kept in police records.
“This is a milestone ... This is the first time we are utilising DNA profiling in the registration of criminals for statutory rape, incest and consensual incest. This profiling will later be expanded to other crimes as well.
“The Penal Code will also be amended in order to punish family members or others who fail or try to cover incidents of incest, with a minimum of three years’ jail.
“There is a similar provision in the Child Act 2001. The proposed amendment to the Penal Code will work in tandem with that Act.”
Dr Rais said another amendment would seek to introduce whipping for offenders of incestuous rape aged 50 years and above.
“The Cabinet decided this in view of the fact that if a 50-year-old can assault or rape a person, he can equally be liable for whipping,” he added.
On the proposal to extend life imprisonment to 30 years, Dr Rais said they would have to amend Section 3 of the Criminal Justice Act, which currently puts it at 20 years.
“I am working very fast on these amendments and I have already liaised with the Attorney-General’s Chambers to have these out as soon as possible.
“We will take into account responses from the Women and Family Development Ministry, the Welfare Department and the police.”
On another matter, Dr Rais said the Cabinet had agreed to an amendment to Article 119 of the Federal Constitution to expand the conditions for registration as a voter to also include the place of stay and work, and whether the voter had relatives in a certain constituency.
Current provisions in the Penal Code relating to rape and incest
Section 375. RapeA man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:
(a) against her will;(b) without her consent;(c) with her consent when her consent has been obtained by putting her in fear of death or hurt to herself or any other person, or obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception;(d) with her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent;(e) with her consent, when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent;(f) with or without her consent, when she is under sixteen years of age.Explanation-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception-Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognised in the Federation as valid, is not rape.
Explanation 1-A woman-(a) living separately from her husband under a decree of judicial separation or a decree nisi not made absolute; or(b) who has obtained an injunction restraining her husband from having sexual intercourse with her,shall be deemed not to be his wife for the purposes of this section.
Explanation 2-A Muslim woman living separately from her husband during the period of 'iddah, which shall be calculated in accordance with Hukum Syara', shall be deemed not to be his wife for the purposes of this section
Section 376. Punishment for rapeWhoever commits rape shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.
Section 376A. IncestA person is said to commit incest if he or she has sexual intercourse with another person whose relationship to him or her is such that he or she is not permitted, under the law, religion, custom or usage applicable to him or her, to marry that other person.
Section 376B. Punishment for incest (1) Whoever commits incest shall be punished with imprisonment for a term of not less than six years and not more than twenty years, and shall also be liable to whipping.(2) It shall be a defence to a charge against a person under this section if it is proved-
(a) that he or she did not know that the person with whom he or she had sexual intercourse was a person whose relationship to him or her was such that he or she was not permitted under the law, religion, custom or usage applicable to him or her to marry that person; or(b) that the act of sexual intercourse was done without his or her consent.
Explanation-A person who is under sixteen years of age, if female, or under thirteen years of age, if male shall be deemed to be incapable of giving consent
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