The Bar Council has objected to a proposed amendment that would see rape by persons in a position of authority being treated as an offence, saying women could easily abuse the provisions should a relationship turn sour.
The council is against the introduction of this offence because it is redundant and since existing law already defines rape as sexual intercourse against the will of the woman.
It is further of the view that other proposed revisions to the Penal Code are not clear enough in relation in defining the circumstances of rape.
Criminal law sub-committee chairperson V Sithambaram (left) said this could be easily abused by women when a relationship or marriage turns sour.
“This proposed amendment is obviously designed to appease women’s rights groups (who have been) insistent on such an amendment. Amendments are easy to make but the repercussions must be considered and innocent men may be easily accused of rape,” he said.
“Consent obtained by virtue of professional relationship or relationship of trust is vague and can easily be abused when a genuine relationship turns sour. This section can be used to exact revenge in a failed relationship.”
Citing an example, he said a doctor (as superior) may be deemed to have raped his nurse who is his girlfriend if their relationship turns sour.
“This will lead to a jail term of up to 30 years,” said Sithambaram, a criminal lawyer.
He even cautioned that this new section could be used by a woman who offers herself to a man to obtain favours, but is unsuccessful. She may then accuse the man of rape. The provision may be used to “fix” a former boyfriend who refuses to marry a woman or even to blackmail him.
The council’s views were presented at a roundtable discussion organised by opposition party DAP in the Parliament building today, to consider the report of a select committee on amendments to the Penal Code and Criminal Procedure Code.
Other speakers at the three-hour discussion included Parliamentary Opposition Leader Lim Kit Siang, Baljit Singh of the Bar Council and Police Watch and Human Rights Committee legal adviser P Uthayakumar. The session was moderated by DAP MP M Kula Segaran.
'Hard to rebut'
In the report tabled to Parliament in late April, the select committee had proposed an overhaul of the two codes, including splitting up the penalty for rape into two categories so that the courts are not bound by the minimum five-year jail term.
Under the proposals, those convicted of rape could face up to 20 years in jail and/or whipping. Those convicted of aggravated rape could face a jail term of up to 30 years with a minimum of five years and/or whipping.
Aggravated rape involves situations when the victim is hurt or put in fear of death; rape in the company and presence of other persons; rape of a pregnant woman; and rape by those in a position of authority due to professional relationship or other relationship of trust even with her consent.
Sithambaram said the proposed amendments are not clear enough in deeming the rape of a pregnant woman as aggravated rape. He said knowledge of pregnancy would be relevant in determining this offence.
“If the woman is two, three months pregnant, then it’s fine. What if she is just two, three weeks pregnant?” he asked.
On another section that seeks to punish a husband for 'causing hurt or fear of death' to his wife in order to have sexual intercourse, Sithambaram suggested that this should only be applied when the wife is “actually physically hurt”.
“It is easy for a woman to accuse her husband of putting her in fear of death or hurt, and very difficult for the man to rebut this as no physical evidence is needed for this accusation,” he said, adding that this section can be abused when the marriage is breaking down or has broken down.
The select committee had rejected a request by women’s groups to classify marital rape as an offence under the Penal Code. As a compromise, it proposed the new section to deal with husbands who cause hurt or threaten their wives with death ir order to have sexual intercourse.
If convicted under this section, the husband may face imprisonment for up to five years.
Support for amendments
Opposing the Bar Council’s views, lawyer Edmund Bon - who was present to represent human rights watchdog Suaram - said the section on rape by those in position of authority is needed, as there are many cases where employees are coerced into having sex with the employer.
He welcomed the inclusion of the new section proposing to punish husbands for causing hurt or fear to force their wives to have sexual intercourse.
DAP MP Teresa Kok, a member of the select committee, also disagreed with the council. She said women’s groups have received numerous complaints of rape by those in a position of authority.
Contacted by malaysiakini for immediate comment, Women’s Development Collective executive director Maria Chin Abdullah rejected the council’s claim that the proposed amendment on rape by those in positions of authority was introduced to 'appease' women’s rights groups.
She said there is “a very low” chance that women might cry wolf or abuse the section. Even if this happens, the prosecution would still have to prove its case in court.
“Every thing is open to abuse, but criminal lawyers can argue this in court, they are so damned good! In Malaysia, only about 5 percent of rape cases are won (by survivors), so what are the lawyers afraid of?” she asked.
The proposed amendment, she said, was intended to address the issue of bomohs and mediums misusing their relationship of trust with female clients and raping them on the pretext of healing them.
On the objection to provision on husbands causing hurt or fear, Chin said the council should know that not all assaults result in or reveal injuries, and that the government has to recognise that rape does happen in a marriage.
Asked if raping a pregnant woman without knowing of her condition should be considered aggravated rape, she said the issue is not about knowledge of the pregnancy.
Whether or not a woman is pregnant, she should not have to endure such torture, Chin said. But where the woman herself does not know she is pregnant, she would be traumatised more if the rape results in a miscarriage.
She argued that, if the rapist transfers additional pain to someone, then this amounts to aggravated rape and a more severe penalty should be imposed.
Chin denied any clash between the Bar Council and women’s groups but felt that the council - based on its stance - does not understand the seriousness of rape.
QUO VADIS, MALAYSIA? written by Stephen Tan Ban Cheng,
Thursday, June 22 2006 08:29 am
This is interesting. While so many wrongs stare us in the face, our focus is on sex, sex and sex.
While Muslim women complain about their marginalised role, the non-Muslim women focus on rape and its definition as if they can come out with a better definition than what the common law has gien us.
As I said, we waste precious time in trying to re-invent the wheel by trying to hone a legal definition of rape.
At the end of the day, when the chips fall, what must emerge is whether we are a Fair, Just And Reasonable society, a FAJAR society.
At this point in time, for goodness sake, can we SAY IN ALL CONSCIENCE that we have a fair, just and reasonable society?
Can we SAY IN ALL CONSCIENCE that we are a carin' and sharin' society?
My answer is a capitalised and vehement NO.
And what do we do? We focus on issues that are almost IRRELEVANT and think we are smart.
As I said, and it bears repeating, so many issues stare us in the face BEGGING for answers.
In our political arena, in our economic sector, and in our social landscape, there are so many issues.
And what do we do? We focus on our base desires instead of honing our noble pursuits that nation-building demands.
Quo vadis, Malaysia? Where are we going?
Like three blind mice? Running until the farmer's wife chops our tail with her kitchen knife?
The kitchen knife is my metaphor for globalisation, not globalism, and for our failure in the last few years to attract foreign direct investment most of which has gone during the period to countries like China and Vietnam.
Quo vadis, Malaysia? Where are we going?
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The Bar Council has objected to a proposed amendment that would see rape by persons in a position of authority being treated as an offence, saying women could easily abuse the provisions should a relationship turn sour. 
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This is interesting. While so many wrongs stare us in the face, our focus is on sex, sex and sex.
While Muslim women complain about their marginalised role, the non-Muslim women focus on rape and its definition as if they can come out with a better definition than what the common law has gien us.
As I said, we waste precious time in trying to re-invent the wheel by trying to hone a legal definition of rape.
At the end of the day, when the chips fall, what must emerge is whether we are a Fair, Just And Reasonable society, a FAJAR society.
At this point in time, for goodness sake, can we SAY IN ALL CONSCIENCE that we have a fair, just and reasonable society?
Can we SAY IN ALL CONSCIENCE that we are a carin' and sharin' society?
My answer is a capitalised and vehement NO.
And what do we do? We focus on issues that are almost IRRELEVANT and think we are smart.
As I said, and it bears repeating, so many issues stare us in the face BEGGING for answers.
In our political arena, in our economic sector, and in our social landscape, there are so many issues.
And what do we do? We focus on our base desires instead of honing our noble pursuits that nation-building demands.
Quo vadis, Malaysia? Where are we going?
Like three blind mice? Running until the farmer's wife chops our tail with her kitchen knife?
The kitchen knife is my metaphor for globalisation, not globalism, and for our failure in the last few years to attract foreign direct investment most of which has gone during the period to countries like China and Vietnam.
Quo vadis, Malaysia?
Where are we going?