I write this with some trepidation realising that I now incur the wrath of my mum, my female relatives friends and acquaintances, Honey Tan, Dr Wan Azizah and half the population of Malaysia.
Yet, I would venture to suggest that the the Bar Council has a point. Their objections to the proposed sub–section 375(g) of the Penal Code is well justified given the extremely loose wording of the intended offence. (Members may also join the online forum discussion on this issue by clicking here.)
This is what is intended to be made criminal:–
“A man is said to commit "rape" who ... has sexual intercourse with a woman ... with her 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.”
There is a misconception that this is some kind of “aggravated rape”. In fact, the proposed amendment would treat this offence just like any other “rape” – the violent serial rapist who bludgeons a woman whilst raping her, the date rapist who uses force in gaining sexual favours whilst treating the woman’s cries of “No” as a turn on and the doctor who has a sexual relationship will all be called 'rapist'.
On a plain reading of this section, it is obvious that the proposed amendment is indeed far too widely worded, and falls foul of any conception of a fair and just criminal law which is certain and unambiguous. The kind of behaviour which is being targeted is the abuse of a “professional relationship” or a “relationship of trust”. Where are the words “duress”, “deceit”, “misrepresentation”, “threat”, “dishonest” or even “abuse” in the proposed amendment?
How in the world can you prove if the woman’s consent to sex is obtained as a result of the man “using his position of authority over her” or “because of” the professional relationship they have or the position of trust they bear each other. The fact that the relationship caused the consent is a necessary element of the offence. In practice, given the rules of criminal justice that requires a defence to be called so long as the prosecution prove a prima facie case, it will invariably be the defendant’s duty (in reality) to prove he is not a rapist. The alleged victim’s identity will be kept secret whilst the man accused of this heinous crime will be hard put to hide his face behind his jacket as he is taken in and out of court.
It is true that men should not assume that women will cry rape at any opportunity just to spite a man unlucky enough to incur her wrath. On the other hand, it will be disingenuous to say that all women are angels. The fact that there are women as well as men convicted of rape or being found to have sexually harassed men shows that sexism, harassment and abuse are failings of both men and women,
This proposal is a mere panacea, meant to blind us into thinking that some relief will be given to those being abused by people in positions of authority. This proposal will not deter a would be rapist, – in fact, it reduces the seriousness of the crime of rape by turning sexual harassment into rape. No prosecution under it will be considered fair under internationally accepted standards of justice. Any decent defence lawyer will be able to cast a reasonable doubt on whether the consent was induced by the professional relationship.
I urge the NGOs who do such sterling work in promoting gender equality not to let their enthusiasm be taken advantage of by a government anxious not to remedy the real causes of sexism in Malaysia. Please insist on a proper law that clearly and unambiguously criminalises the acts of rapists who prowl on hapless women under the guise of positions of power. Do not be lulled into accepting a clearly unfair and unsatisfactory law just because it is the best the Government will give you.