Consensual sex can turn into rape


  • Nation
  • Saturday, 03 Aug 2019

PETALING JAYA: Sexual consent gained through deceitful means is tantamount to rape, and should be recognised as such, said women’s rights group Women’s Aid Organisation.

Executive director Sumitra Visvanathan said consent can be considered void when agreements made before intercourse are broken.

“(For example) When a woman agrees to have sex with protection, that means exactly that. If a man secretly removes the protection, that is not something the woman agreed to, ” she said.

Sumitra was commenting on a recent case in which a man is alleged to have removed his condom without his female partner’s knowledge although prior to sexual intercourse, he had agreed to wear it.

The woman has since lodged a police report on the incident as she feared that she might be infected with a sexually-transmitted disease.

She also stated that she felt deceived by the man.

“There is a big difference between having sex with a condom and having sex without one, not least from a health perspective, ” Sumitra said.

She is also troubled that the police is said to have reported the case to the Selangor Religious Department (JAIS) although rape is a criminal offence that comes under police jurisdiction.

“We hope the police are reviewing this too, ” she said, adding that other forms of rape like marital rape should also be criminalised and that rape laws should be gender-neutral.

A recent study revealed that Malaysians still have a lot to learn about sexual consent.

A survey of 2, 000 Malaysian men by the Centre of Governance and Political Studies (Cent-GPS) found that only 35% of men understood that consent meant a partner had to verbally and explicitly say ‘yes’ to sex, while another 30% perceived consent to be mutual agreement, meaning a discussion has been had or if both sides had agreed to sex.

About 21% of the respondents believed that consent could be interpreted through body language, having a romantic attachment or getting no objection from a partner.

The act of removing a condom after agreeing to wear one during sex is known as stealthing.

In previous years, offenders in Switzerland, Germany and Canada have been brought to justice for either covertly removing or damaging the condoms before sex.

Last December, a policeman in Berlin was convicted of the crime in what is said to be a landmark case in Germany.

The Supreme Court of Canada also convicted a man in 2014 for poking holes in a condom before using it during intercourse.

However, the situation was different in a 2017 case in Switzerland, where a man who was convicted for deliberately removing his condom had his rape conviction changed to defilement.

In Malaysia, consent obtained through deceitful means is covered under Section 375(c) of the Penal Code.

A check with Bukit Aman’s Sexual, Women and Children’s Investigations Division showed that there has been only one report of the incident so far.

Meanwhile, Universiti Sains Malaysia criminologist and psychologist Assoc Prof Dr Geshina Ayu Mat Saat said stealthing can be considered a form of sexual aggression, which violates the right to consent and breaks trust between the woman and man.

“The consequences of stealthing to the woman is the same as other forms of sexual assault, which include psychological distress, physical distress, trauma, and anxiety or fear related to ill health outcomes, ” she said.

She added that while both sides had to show burden of proof, victims often have to do more work to evidence harm occurred, especially if the accused has a better lawyer.

“In addition, the process, emotional distress and trauma suffered by the victim is prolonged and sometimes, the accused gets away with the crime, which can be very frustrating and increases the victim’s trauma, ” she said.

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