Written by: Averroes
Introduction
Rape is a serious offence and it cannot be taken as a joke or for any apologist perspective. Rape causes fear among the public. People no longer feel safe walking alone, be it just about anywhere and have to learn self-defence or are forced to give in.
Victims are afraid to speak up, as they are afraid of being subjected to shame, ostracism and ridicule from their families and society. However, we must change this conservative mindset and treat it as an issue that we all must pay attention and spread awareness.
Therefore, we have laws protecting rape victims and how we as society could help in bringing these rapists before court and serve justice for those affected by them.
You may watch the video version of this article here;
In Malaysia, we have section 375 of the Penal Code (PC) that provides the elements for rape and the punishment is subsequently provided under section 376 of PC. In order to prove that the perpetrator did commit rape, section 375 of PC provides the three (3) requirements of rape which are;
(1) A man is said to commit rape
In Malaysia, only men can rape a woman. There is no law if women were to rape men. However, if women were to commit any sexual offences against a man, then there are other suitable laws such as, causing hurt, assault, criminal force, battery, outrage of modesty and criminal intimidation.
However, if both the man and woman are married, it is not rape and a crime if the husband forces his wife to have sexual intercourse. However, under section 375A of the PC which is an amendment, if the husband 'causes hurt' to have sexual intercourse, then that is a crime.
(2) Sexual intercourse with a woman
In order for there to be rape, there needs to be the sexual intercourse. Under section 375 of PC, sexual intercourse is explained as; penetration of the penis, is sufficient to constitute the sexual intercourse. Even if the penis enters the vagina 50% inside, it is still rape, or even 20%. 'As long as there is that penetration'.
It has to be the penis of the man. It cannot be a dildo or finger which then makes the rapist not guilty. Also, if the medical report says that the penetration is caused by 'something like a blunt object' or 'caused by an object similar to a penis' then the rapist is not guilty. We have to really 'make sure' that it is a penis, if not the rapist is set free.
Apart from that, even if the medical evidence indicates that there are bruises around or inside the vagina or that the hymen is torn, the 'marks have to be fresh and new'. If the bruises were from her past sexual intercourses or that it is bruised as she does rigorous physical exercise, then there is no sexual intercourse or penetration by the rapist, but done someone else previously.
Also, the woman while being raped cannot see the penis if she was abused in the dark or her eyes were covered by cloth. The woman victim 'cannot assume' what is penetrated into her vagina as the alleged rapist might have inserted something else.
How do we rebut and counter-argue all of this?
First, if the rapist opens his zipper, underwear and pants or clothes, it must have been the penis, how would there be penetration if he did not open his clothes. What other purpose would he have when he removed his clothes, other than penetrating the vagina with his penis?
Secondly, there are semen signs all over the scene. There are semen stains on the bedsheets, floor, inside the woman's vagina or on her body, her clothes and within the incident's vicinity. The rapist could hide the semen evidence by cleaning it up, by mopping or wiping the stains off.
Through modern technology, we are still able to trace the semen even when they are cleaned off by the rapist. We have polilight which can detect the semen by flashing it over the evidence. We also have luminol which is a chemical substance to also detect the semen.
Both luminol and polilight must also be confirmed by DNA testing and laboratory as well as clinical checks to further support this, as the stains might be saliva or other fluids.
Thirdly, we can take the oral testimonies of the victim and other witnesses during the incident. For the victim, she has to be honest and truthful. The court can easily detect if the woman is lying that she was raped or not, as some women want to take revenge on their male partners. The victim must be very descriptive and precise in remembering what happened to her, including the penetration of the penis.
Usually, a woman based on their instincts knows what is being inserted into their bodies. She does not necessarily need to have many sexual experiences to know a penis is being penetrated.
For other witnesses during the time, they also have to be very honest and truthful. They must have saw the rapist penetrate the victim and tried to fight them off. The witness must see the rapist fully nude or partially covered in clothes to infer that the penis is being used. The witness cannot also make assumptions or guesses. They must confirm it.
(3) Under circumstances falling under of the following descriptions
After fulfilling the two (2) requirements above, the third (3) requirement can be fulfilled with either of the following which are;
(a) Against her will or without her consent
In order to prove this, there are several ways that the victim had sexual intercourse against her will or she did not consent.
If there are bruises, scars or bleeding on the woman, then the rapist must have caused hurt to her as to to have sexual intercourse. It is impossible for a woman to consent if there are those marks on her body, particularly if there are strangulation marks on her neck, gripping marks on her wrists or other forms of bruises.
If she was willing and consented, there would not be any of those marks on her body at all. This meant that the woman was fighting back and resisting the sexual intercourse. It also becomes rape when she consented to have sexual intercourse, but not when the semen is ejaculated into her vagina.
(b) With consent, but given because of fear of death or hurt, obtained under misconception
If there are arguments that she consented because she passively agreed and submitted, then that is not consent or willing. She might have surrendered passively or allowed herself to be abused, because of the dominance that the man had. If she refused, then she was afraid that the man would kill or hurt her.
Moreover, if we was tricked that she is going to be given medical treatment or some services, but she was taken advantage of by having sexual intercourse, then it is rape as there is the misconception. The man had deceived the woman into thinking that he was being honest and genuinely wanted to help her in a clean way.
(c) It is rape if the woman thinks either;
(i) That the rapist was her husband,
(ii) The woman could not understand the nature of the sexual intercourse (meaning that she thought the sexual intercourse was part of a medical procedure for example) and;
(iii) That a authority or professional relationship commit sexual intercourse with her and she submitted such as a police or doctor, then that is rape.
(d) With or without her consent, when she is 16 and below;
Even when she is 16 years old and below, whereby she consented, that is still considered rape. Even if the 16-year-old girl or aged below loves the man, that would be pedophilia and at that age, she is too young to have sexual intercourse and should focus on her education and future.
What to do when we or someone is a victim of rape
Firstly, go to either the police station or hospital first. If the victim goes to the hospital, then she would be brought to the police station eventually and vice versa. This is to get medical evidence and support of the rape incident. Do not wash her clothes or take a shower as the evidence must be taken and recorded, or else the evidence would be destroyed or tampered with.
Secondly, we try to remember the face of culprit. This is important when the Police does the 'Identity Parade' or 'Police Lineup', which means the police will have suspects standing in a line, and that the victim would have to determine or show among them, who raped her.
Thirdly, apart from the face, remember all the other details and chronology that happened. The time, date, the place, the person, what was being said or done. These are all important because, when lodging a police report, the police will not take it seriously if details given are so vague and weak. The report has to be strong enough, because it will also form part of the criminal charge against the rapist and facts of the case.
Finally, it is important to have a lawyer or someone representing on behalf of the victim to help lodge the police report. The victim may have suffered from physical and mental pain after the incident, therefore whatever she says may be inconsistent and puzzling.
Also, the victim themselves are too shy or scared to lodge the report, therefore as responsible citizens and members of society, we have to represent them. The victim themselves can call any NGOs or organisations that also help victims of rape to help them with their legal aid.
When lodging a police report, mention section 375 of the PC, because only then the police knows exactly what was the crime committed and help further. If we give vague details without mentioning the section, the police have to figure out and come up with the suitable crime under the Penal Code.
Conclusion
Hopefully, this article will help in upholding justice and support for rape victims. This is a way to curtail the spread of rape that is running rampant in this country, and all of us have to play a part in defending the public from all forms of harm and danger. If not, nobody feels safe to go outside, it is literally an anarchic world out there and we never know what will happen to our friends, daughters, mother or females that we know of. Continue to defend and spread awareness. Play our part as a responsible Malaysian!
Comments
Post a Comment