|
CONCEPT
PAPER ON AMENDMENTS TO LEGAL AND POLICY PROVISIONS FOR INCEST
Introduction
Arguments Against Mandatory Life Sentence and Public
Whipping
Proposals from the Anti-Rape Task Force
Conclusion
INTRODUCTION
The Anti-Rape Task Force
welcomes the government's proposal in looking at the laws regarding
incest, and the commitment shown in dealing with this issue.
However, we are concerned
with the concentration of proposed action on overtly punitive measures;
i.e. the recent call for mandatory life sentencing and public whipping.
With that, the Anti-Rape Task Force has had several dialogue sessions
(with whom?) on the issue of incest to discuss on comprehensive solutions
to tackle this grave issue, for both an immediate and long term basis.
ARGUMENTS AGAINST MANDATORY LIFE SENTENCING
AND PUBLIC WHIPPING
The Anti-Rape Task Force
strongly disagrees with the proposal of enforcing mandatory life sentencing
and public whipping for offenders of incest. Although the intention
of the proposed action is to reflect the severity of the crime, we believe
that the effects of such harsh punishments will be counter-productive
to its perceived deterrent result. The reasons are:
- Obstacle to Reporting
The perpetrators
of incest are the fathers, brothers, uncles, grandfathers - by nature
of the definition, the perpetrator is ALWAYS related to the victim.
Mandatory life sentence and public whipping will result in an added
burden of guilt to the victim and non-offending family members of
the victim to report the incident. This is because the responsibility
of sending a family member to life imprisonment and public whipping
has great and far-reaching consequences, especially if the victim
is a child. The perpetrator may use this factor to further emotionally
intimidate and threaten the victim into acquiescence and silence.
The result of such an action will be that less cases of incest will
be reported, and hence, depict an erroneous picture of the prevalence
of the actual crime. Even currently, sexual assault cases - including
incest - constitutes one the most under-reported crimes worldwide.
Mandatory life sentence and public whipping will only worsen the
shame and silence that surrounds the crime.
- Independence of
Judiciary
The independence
of the judiciary in sentencing will be severely compromised if mandatory
life sentence and public whipping are imposed. Incest is a complex
issue, and the circumstances of different cases may differ from
one another. As such, the judge should be able to exercise his/her
discretionary powers in meting out sentences that reflects the particular
facts of the case, as provided within the ambit of the law. For
example, a twelve year-old boy committing incest with his sister
calls for a very different sentence compared to a 40 year old father
who commits incest on three of his daughters.
-
Support for Victims
Currently, the support
structure available for victims of incest and families of victims
is greatly lacking. When a victim wishes to report an incident,
s/he is not assured of counseling or any other form of intervention
to manage the trauma. In addition, s/he will be faced with the arduous
task of going through the court procedures in a legal system which
is not child-sensitive. Incest also impacts on other non-offending
members of the family, and currently, no support structure is available
to them. When there is no support structure, victims and their family
members may not wish to report the crime, and again, more cases
will go unreported, undetected and unrecognized, and the abuse will
continue to take place unchecked.
Although the Anti-Rape
Task Force agrees that punitive measures should reflect the seriousness
of the crime, we believe that the important factors outlined above must
be taken into account in dealing with the matter of incest in terms
of law and policy.
PROPOSAL
FROM THE ANTI-RAPE TASK FORCE
Below are the proposals
from the Anti-Rape Task force. We hope that the Ministry will seriously
consider them in its proposals for amendments in laws regarding incest.
Guiding Principles
The key principles to
manage the problem of incest should include the following:
- Have a comprehensive
and multi-agency approach, including appropriate punitive actions.
- Regulations and
policies to be enforced must be mandated by law and the enforcing
agencies should be provided with appropriate budgetary allocations.
- There must a monitoring
mechanism to ensure that the implementation of laws and policies
matches with its goals and objectives.
Legislative Actions
To review the existing
amendments of incest as provided under Section 376a and 376b of the
Penal Code:
- To amend the
word "sexual intercourse" to "sexual assault and abuse".
This is because
incest does not only involve penile penetration, but also other
forms of actions which are sexual in nature. For example, fondling,
using a child to masturbate, grabbing and pinching breasts and buttocks,
removing clothes for sexual stimulation, watching the victim while
undressing, or forcing the victim to watch the abuser undressing,
oral sex, penetrating vaginal and anal areas with fingers, objects
or penis, penis in mouth, exposing the victims to pornography, looking
at victim in a sexual way, engaging in sexual conversation and/or
fondling that includes sexual hugging and kissing.
-
To recognise
that the element of "consent" should not be applicable
to the issue of incest.
a) Coercion/Manipulation
Victims of incest are usually manipulated or coerced into acquiescence
by the offender who has power over the victim, and as such, the
issue of consent should not be considered. Our main concern is to
encourage victims to come forward and report incidences of incest,
and they are more likely to do so if there is no probability/likelihood
of the victim being charged if s/he makes a report.
b) Period of Sexual Assault and Abuse/Incest
This is because incest involved a familial relationship, usually
happens over a long period of time and the victim of incest is usually
still a child when the first incident occurred.
c) Lack of knowledge
Children have no context of sex. They will need to have information
about it, fully understand it before they can give consent.
Establishing Child-friendly Social Structures
- Counselling for
Victim
This is to reduce the traumatic period in which the victim-survivor
of incest has to go through, and to help in the healing process.
- Counselling Families
of Victim
Incest also impacts on the families of the victim. As such, counselling
for the family members will help them cope with their distress/trauma
so that they can be a stronger source of support for the victim.
- Rehabilitation
for Offenders
This may reduce the probability of offenders repeating the offence.
- Child Friendly
Sensitive Intervention System
This should begin at the instance of making a report to the police
or social welfare services, going to the hospital for medical examination,
until the case is heard in court; including statement taking, up till
preparing the victim on what to expect during the court hearings.
- Child Support
Workers
To equip social workers, the child protection team, legislators, children's
and community centre personnel's with knowledge and skills to provide
emotional and physical support, as well as legal advice to victims
of incest and members of her/his family.
- Counselor-Legal
Advocates/Child Support Workers
To have existing counselors to take on the role as counsellor-legal
advocates who can provide emotional support to the victim, monitor
support given by the law enforcement and court personnel, initiate
and follow-up on meetings with the State prosecutor, provide clear
information to the victim and family of the victim about the court
process, and provide transportation to and from the police station
and the court house whenever necessary.
- Economic/ Financial
Support
The State has the responsibility to provide economic and financial
support to the non-offending parent and victim if the victim was dependent
upon the offender for economic survival.
- Multi-Agency Involvement
All Ministries should be responsible and pro-active in dealing with
the issue of incest. This includes the Ministry of Education, Ministry
of Health, Ministry of National Unity and Social Development, and
the Ministry of Women and Family Development. All Ministries involved
should carry out regular training for their staff to inculcate an
understanding on the issues surrounding incest and violence against
women and children. There needs to be coordinated efforts by Ministries,
for instance the National Child Policy by the Ministry of National
Unity, the setting up of Family Centres by the Ministry of Women and
Family Development and the Child Protection services being planned
by the Ministry of Law.
CONCLUSION
We strongly urge the
Ministry to seriously consider and include the suggestions outlined
in this proposal into the amendments to the laws regarding incest. .
We welcome a dialogue
session with the Ministry to discuss this matter further, to reach a
comprehensive solution, both immediate and long term, to stop, if not
to eliminate, incest and violence against women and girls.
Written by Maria
Chin Abdullah (All Women's Action Society) and Jaclyn Kee (Women's Aid
Organisation) for the Ministry of Women and Family Development and the
Bahagian Hal Ehwal Undang-Undang, Jabatan Perdana Menteri.
Prepared by THE ANTI-RAPE
TASK FORCE:
All Women's Action
Society
Women's Aid Organisation
Sisters In Islam
P.S. The Children
Related Links:
T
|
