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Concept Paper on Amendments to Legal and Policy Provisions on Incest

Posted on 08 May 2002
 

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.
    • 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.
    • 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.
    • 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



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