FAQs: Domestic Violence
Is the definition of rape proposed by the Select Committee comprehensive?
It is not, and this relates to the issue of consent. In rape trials, the defence of consent is very often raised. This is because 83% of rape survivors know their rapists. The law is not clear in protecting women from men who are reckless or did not take reasonable steps to confirm that the women have consented to have sex with them; or from men who are drunk and say that they thought the women had consented.
This broader definition does not cover the category of women who may have 'given consent' even though they are incapable of understanding the nature and consequences consent e.g. mentally disabled women.
Is the Select Committee making marital rape a crime?
It is not. The Select Committee did not delete the marital rape exception in S375 of the Penal Code, and so marital rape is still not recognised as a crime. The proposed new S375A of the Penal Code only makes it an offence for a husband to cause the wife or any other person hurt or fear of death in order to have sexual intercourse with his wife.
Rape is not about sex. It is about violence. Whether or not the rapist is the woman's husband must not matter.
Historically, English law provided that when a woman marries, she is deemed to have given herself to her husband and is his property. Due to our colonial past, that English law remains as Malaysian law even though marital rape is now recognised as a crime in England and in many other countries.
AWAM's statistics for the years 2000-2002 show that 52% of women who had been subjected to domestic violence were forced to have sex with their husbands. Women who are raped by their husbands are likely to be raped many times - often 20 times or more. These wives are often coerced into sex or are unable to refuse because of threats of physical violence, financial dependence on their husbands, fear for the safety and protection of their children.
From an Islamic view point, Muslims are called to uphold human dignity. Muslims must not be cruelty or violent. Allah (swt) commands Muslims to "Eschew all sin open or secret." Sûrah al An'am 6.120 (translation Yusuf Ali). The message of Islam is universal and without exception.
The Prophet Muhammad (saw) himself treated his wives with nothing less than love respect and tenderness. Abu Hurairah reported that the Holy Prophet (saw) said, "The most perfect of the believers in faith is he who is the best in conduct, and the best of you are those who are the best to their wives." (Tarmizi). Sûrah an Nisa 4.19 commands, "O ye who believe! Ye are forbidden to inherit women against their will..." and with regard to the treatment of wives, it was commanded, "... On the contrary, live with them on a footing of kindness and equity." (translation Yusuf Ali).
Is the Select Committee's proposing that all rapists face the same punishment?
It is not.. The Select Committee proposes that a heavier punishment be given to a more serious kind of rape called 'aggravated rape'. Aggravated rape happens when the rapist :
- in addition, causes hurt to the woman, or any other person; or
- in addition, puts the woman in fear of death or hurt to herself or someone else; or
- rapes her in the presence of other people; or
- rapes a girl under 16 without her consent; or
- rapes a girl under 12; or
- gets consent from a woman by using his position of authority over her, or because of their professional relationship or other kinds of relationship of trust.
But these circumstances are not instances of aggravated rape :
- when the rapist has HIV/AIDS, other sexually transmitted or communicable diseases; or
- where the woman is mentally or physically disabled; or
- gang raped; or
- when the rapist rapes the woman more than once; or
- when the woman is drugged or intoxicated; or
- when the rape is being taped, videoed or photographed.
What kinds of sentences for rape are being proposed by the Select Committee?
The Select Committee proposes :
- To remove the minimum compulsory sentence of 5 years if a man is convicted of rape. This will be a problem because once again, rapists may get away with one or two years imprisonment. Rapists may even be bound over i.e. they are not imprisoned at all.
- Research has shown that many rapists deny that they are responsible for their crimes. Rehabilitation is a long term process. If the minimum sentence of 5 years is maintained, the chances of rehabilitation may be better.
- If a rapist is sentenced to jail, it will be for a maximum of 20 years and whipping.
- For aggravated rape, a minimum of 5 years to a maximum of 30 years and whipping.
- For incest, a minimum of 8 years and a maximum of 30 years, and be whipped a minimum of 10 strokes.
- If the woman dies when she is being raped or an attempt is made to rape her, the man convicted shall be punished with death or be imprisoned for a minimum of 15 years and a maximum of 30 years, and be whipped a minimum of 10 strokes.
- Counseling is compulsory for rapists who are imprisoned.
Is the Select Committee making it a crime for a man to insert his finger into the woman's mouth for his sexual gratification without her consent?
A : It is not. The Select Committee is proposing that it is a crime only if a person introduces an object into the vagina or anus without consent. If it were done for medical or law enforcement purposes, then it is not a crime.
There is no mention of the phrase 'sexual gratification' in the proposed new crime, and the ordinary meaning of 'object' does not include a finger. It is also unclear whether the meaning of consent is as broad as that provided for in the rape provisions. However, the proposed amendment is clear that only the vagina and anus are relevant in this new crime - so inserting any object into mouths and other orifices is not an offence.
FAQs: Domestic Violance
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