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Substantive amendments to the Penal Code and Criminal Procedure Code were two years in the making. Now as it goes up before Parliament, the debate continues outside with non-governmental groups lobbying for changes, writes SUHAINI AZNAM

ESCALATING sexual violence in recent years has prompted a Parliamentary Select Committee to propose a slate of amendments that will take into account today’s tempo - less caring, fast urbanising and with earlier teenage sexual exposure.

Even as the proposed amendments to the Penal Code and Criminal Procedure Code go up before Parliament next week, pressure groups are feverishly working to push through eleventh hour demands.

Committee chairman, Home Minister Datuk Seri Radzi Sheikh Ahmad, has maintained his implacable calm. He and his six fellow MPs had not expected the amendments to be passed without considerable debate.

The Joint Action Group for Gender Equality (JAG), a consortium of women’s groups that had spoken convincingly at the Committee’s public hearings, has found itself pitted against the Bar Council on the issue of where a women’s consent is obtained by using - or abusing - the man's position of authority.

All sexual acts, even with consent, “when the consent is obtained by using his position of authority over her, or because of professional relationship or other relationship of trust in relation to her” e.g. a teacher, bomoh, police officer or employer, will be considered aggravated rape and carry a maximum of 30 years’ jail under a new sub-section 375 (f) to the Penal Code.

But being “pressured for sex” is a tenuous defence. By its invisible, at most verbal nature, the victim often finds it is her word against his.

The Bar Council felt that women might take advantage of the proposed clause.

At a roundtable discussion in Parliament on June 21, Bar Council criminal law sub-committee chairman V. Sithambaram said that this clause was “open to abuse” as it could easily result in “innocent men being accused of rape”.

JAG turned roundly on the Bar Council, accusing it of a “complete lack of gender awareness”.

“It perpetuates the myth that women tend to lie,” said Honey Tan Lay Ean, the executive director of the All Women’s Action Society (Awam), speaking for JAG.

The Select Committee has also suggested that the definition of rape be fine-tuned to differentiate between mutual attraction between teenagers - “suka sama suka” - and aggravated rape where force is used against the victim.

Its rationale is that a boy’s whole future should not be wrecked by five years in prison just because the law provides no alternative punishment. It also takes a realistic account of teen life and sexuality today.

Aggravated rape will be defined as sex with anyone below 12. Simple rape is consensual sex where the girl is above 12 but below 16.

In the latter, the boy is still liable to imprisonment but the duration could be a much shorter, unspecified period, with rehabilitative counselling as an avenue for self-reflection on his actions.

JAG, however, is concerned that by not specifying the age brackets, the floodgates would open for anyone to slip through this reversion to an absence of a minimum sentence for rape.

JAG proposes that the removal of a minimum prison sentence be restricted to youthful offenders where the girl is below 16, her consent notwithstanding.

“Leniency should not be extended too far,” said Karen Lai, legal officer for the Women's Crisis Centre (WCC) in Penang, another JAG member.

“The definition of youthful offender should be kept to below 18, in keeping with the existing Child Act.”

The committee is proposing that youthful offenders be extended to include those between 18 and 21.

At the other end of the spectrum, the women's groups want to take off the 50-year age ceiling on whipping for rapists.

They contend that if a man is old enough to force himself on a woman, he is old enough to take the whipping, after being certified medically fit by a doctor.

In keeping with the severity of the crimes, those who commit incest, or who cause death to their victims in the course of rape, will also be punishable by an enhanced minimum sentence of eight and 15 years respectively, and an enhanced maximum of not less than 30 years jail plus whipping of not less than 10 strokes.

Despite arguments over particular clauses, the Select Committee has remained true to the spirit of meting out more severe punishment for today’s aggravated crimes.

The number of reported sex crimes jumped by 550 after 2000, to reach 1,765 in 2004.

Equally alarming was the brutality of the crimes: girl-child victims, sometimes gang rapes, strangulation and mutilated and burnt bodies being dumped elsewhere to cover the perpetrators' tracks.

These punitive actions match today’s rampant sexual violence. They are the legislators’ response before Malaysians become inured to tragic, mere statistics.

Related story:

When rape within marriage is not a crime

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