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Rape situations need to be understood
We are most disappointed with the response of the Bar Council to the proposal by the Parliamentary Select Committee on the Penal Code and Criminal Procedure Codes in tabling a new sub-section 375 (f) of the Penal Code which states that a man commits aggravated rape if he has sex 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."
The definition of rape needs to be introduced in order to reflect the different rape situations that cause additional trauma to the victim, be it physical or psychological, as well as to demonstrate society's utter disapproval and intolerance for such acts.
The intention behind the sub-section is to protect women from being forced into sex by the use of non-physical elements such as the perpetrator's authority over the woman – for example, when a warden of a prison or other custodial institution has sex with a girl or woman in his charge. Another situation is when a man whose professional relationship with a woman necessarily involves her placing her trust in him exploits that trust or manipulates the situation to his own ends, as for example, when trainers, physicians, bomohs, mediums or therapists engage in sex with their clients. Consent, in these situations, should be deemed to be vitiated and inoperative.
Other examples include where the consent is obtained following 'non-violent threats' like a threat of dismissal by an employer or superior, deception by a bomoh that sexual intercourse with him would 'cure' the woman or rid her of the evils possessing her', or where there is inducement by a police officer of a woman in his custody.
These are just some instances where the women are placed in situations where it is highly unlikely they can make unpressured or free choices; and endow the men with an inordinate amount of power over the women.
Rapes in such situations are especially traumatic to the survivors as rather than ensuring their well-being, the perpetrators have abused their positions and violated the women's trust. Currently, under Malaysian law, there is no additional penalty for aggravated rape. The Joint Action Group for Gender Equality (JAG) welcomes the recognition of the need to impose a more severe punishment reflecting the particularly heinous nature of the crime as proposed by the Select Committee in their report.
The Select Committee also proposed a new section 375 A which provides that where a man, during the subsistence of a valid marriage, causes hurt or fear of death or hurt to his wife or any other person in order to have sexual intercourse with his wife shall be imprisoned for up to five years.
The requirement by V Sithambaram, speaking on behalf of the Bar Council, that the wives must be 'actually physically hurt' into having sexual intercourse with their husbands in order for the husbands to be charged, confirms the lack of appreciation of the concept of violence against women. Violence means more than the physical bruises, cuts and blood that can be seen. Article 1 of the Declaration on the Elimination of Violence Against Women defines violence against women as "any act of gender-based violence th at results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life."
It saddens us that instead of applauding the Select Committee in taking cognisance of a more progressive and non-physical appreciation of the concept of violence against women, the Bar Council has taken a retrogressive step into the past.
The remark by V Sithambaram that the new law being tabled is to "appease women’s rights groups" brushes aside the fact that our recommendations are rooted in women's realities and needs. We call upon the Bar Council to share with us the studies, research or any credible statistics that justifies them saying with such conviction that women will use these sections to 'fix' their ex-boyfriends for breach of promise to marry, when a relationship turns sour, that women will shout rape when they are unable to obtain favours by men, or when a marriage is breaking down or has broken down.
However, the larger concern of JAG is the complete lack of gender awareness reflected in the Bar Council's stand as contained in the malaysiakini report.
The definition of rape needs to be introduced in order to reflect the different rape situations that cause additional trauma to the victim, be it physical or psychological, as well as to demonstrate society's utter disapproval and intolerance for such acts.
The intention behind the sub-section is to protect women from being forced into sex by the use of non-physical elements such as the perpetrator's authority over the woman – for example, when a warden of a prison or other custodial institution has sex with a girl or woman in his charge. Another situation is when a man whose professional relationship with a woman necessarily involves her placing her trust in him exploits that trust or manipulates the situation to his own ends, as for example, when trainers, physicians, bomohs, mediums or therapists engage in sex with their clients. Consent, in these situations, should be deemed to be vitiated and inoperative.
Other examples include where the consent is obtained following 'non-violent threats' like a threat of dismissal by an employer or superior, deception by a bomoh that sexual intercourse with him would 'cure' the woman or rid her of the evils possessing her', or where there is inducement by a police officer of a woman in his custody.
These are just some instances where the women are placed in situations where it is highly unlikely they can make unpressured or free choices; and endow the men with an inordinate amount of power over the women.
Rapes in such situations are especially traumatic to the survivors as rather than ensuring their well-being, the perpetrators have abused their positions and violated the women's trust. Currently, under Malaysian law, there is no additional penalty for aggravated rape. The Joint Action Group for Gender Equality (JAG) welcomes the recognition of the need to impose a more severe punishment reflecting the particularly heinous nature of the crime as proposed by the Select Committee in their report.
The Select Committee also proposed a new section 375 A which provides that where a man, during the subsistence of a valid marriage, causes hurt or fear of death or hurt to his wife or any other person in order to have sexual intercourse with his wife shall be imprisoned for up to five years.
The requirement by V Sithambaram, speaking on behalf of the Bar Council, that the wives must be 'actually physically hurt' into having sexual intercourse with their husbands in order for the husbands to be charged, confirms the lack of appreciation of the concept of violence against women. Violence means more than the physical bruises, cuts and blood that can be seen. Article 1 of the Declaration on the Elimination of Violence Against Women defines violence against women as "any act of gender-based violence th at results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life."
It saddens us that instead of applauding the Select Committee in taking cognisance of a more progressive and non-physical appreciation of the concept of violence against women, the Bar Council has taken a retrogressive step into the past.
The remark by V Sithambaram that the new law being tabled is to "appease women’s rights groups" brushes aside the fact that our recommendations are rooted in women's realities and needs. We call upon the Bar Council to share with us the studies, research or any credible statistics that justifies them saying with such conviction that women will use these sections to 'fix' their ex-boyfriends for breach of promise to marry, when a relationship turns sour, that women will shout rape when they are unable to obtain favours by men, or when a marriage is breaking down or has broken down.
However, the larger concern of JAG is the complete lack of gender awareness reflected in the Bar Council's stand as contained in the malaysiakini report.
Such claims, especially when made by an august body like the Malaysian Bar Council, are very damaging because they perpetuate the myth that women tend to lie when they do not get their way, and are therefore not credible.
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