Bar Council’s Comment On New Clauses Of Rape Is Chauvinistic
Thursday, 22-06-2006Press statement by YB Teresa Kok, MP for Seputeh, Secretary of DAP Women and Member of the Parliament Select Committee on Penal Code and Criminal Procedure Code on 22nd June 2006, Kuala Lumpur
I am disappointed with the comment by the Bar Council on the proposed new clauses that define aggravated rape to the proposed amendments bill on Penal Code and Criminal Procedure Code.
The Bar Council has criticised and objected to the proposed new paragraphs (f) and (g) recommended to be incorporated into section 375(2) as well as to the proposed new section 375A of the Penal Code in the proposed bill .
1. The proposed section 375 (2)(f) provides that: a person commits rape on 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”; and section 375(2) (g) “at the time of the offence the woman was pregnant.”
2. The new section 375A provides that: “Any man who 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 punished with imprisonment for a term which may extend to five years.”
The Bar Council described 375 (2) (f) as being designed to appease women rights groups insistent for such an amendment and they are of the view that innocent parties may be easily accused of rape. The Bar Council was also of the view that consent obtained by virtue of professional relationship or relationship of trust is vague and can easily be abused when a genuine relationship turns sour.
The Bar Council also argued that 375A can be easily abused when the marriage is breaking down and it can be used as a “weapon” by a wife against the husband who has ulterior motives to blackmail him for matrimonial assets.
I regret that the Bar Council has not only failed to see the intentions of the Select Committee to include the said clauses into the bill, it also failed to see the need for Parliament to address new issues related to rape where the victims were forced to give consent when rape is taken place. This include the male partner in the relationship causing hurt in order to have sexual intercourse or marital rape, as well as a woman being forced to give consent for sexual intercourse when the rapist uses his authority and professional relationship to have sex with her. Cases which had happened in the past include policeman uses his authority to force a lock-up female detainee to have sex with him, or a bomoh or monk who uses his “professional relationship” with a woman when she seeks help from him, or a doctor with a patient. There is a great need to amend our laws to close any loophole that could be exploited by devious offenders and crafty lawyers.
At the moment, the Penal Code doesn’t consider sexual intercourse by a man with his own wife as rape, even if the sexual demand is rejected by the wife and the sexual act has caused her hurt and pain. Many countries around the world have outlawed marital rape and it is time the women of Malaysia get similar protection, especially a bad marriage when a woman has failed to get a divorce from the husband due to various reasons.
Of course clause 375A in the proposed amendment can be abused by the wife when the marriage is broken down, but there are other safeguards where the prosecution and the court can verify whether the claim of rape by the wife is valid.
The Bar Council should recognize the fact that many rape victims dare not come forward to report rape due to various social pressures, and the majority of men who have been accused of rape are freed at the end of the trial, and the court proceedings are normally long and hurting to the rape victim and her family.
It is time for us to amend and improvise our present law to address the issue of rape as a step to give greater protection to the vulnerable victims.
Dear Leow CC,
I fully agree with you that we need to settle issue with the help from the Lord. I wished we can have a nation wide awareness to stop supporting anybody or organization that practice resources disorientation.
But on 20 Jun 2006 Tue, from Matthew 5, I was told about the following:
Love Your Enemies
43 “You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ 44 But I say to you, Love your enemies and pray for those who persecute you, 45 so that you may be sons of your Father who is in heaven. For he makes his sun rise on the evil and on the good, and sends rain on the just and on the unjust. 46 For if you love those who love you, what reward do you have? Do not even the tax collectors do the same? 47 And if you greet only your brothers, [8] what more are you doing than others? Do not even the Gentiles do the same? 48 You therefore must be perfect, as your heavenly Father is perfect.
In the end, I decided to write to Pacific Holding DG Manager and said that I do not believe there is no Resources Disorientation at your organization. A visit to few surrounding Pacific Holding and Kevin Furniture Corporation business premises indicated that their staff are 100% Manufacturer and not even one single Constructor and Inventor. So why such a phenomenon and what is the long term solution to ensure a multi resources structure at their business premises? Unfortunately I cannot get direct answer but given the same Declaration again which is not helpful to me at all.
As of today, this is what my Lord told me. How relevant the message and so timely.
22 Jun 2006, Thu Shalom Daily Meditation
Jesus teaches his disciples to pray, telling them that the Father knows our needs before we ask Him. Perhaps the most important request is “Your Kingdom come”. Therein lies the power of the Holy Spirit. Once we invite the Holy Spirit to dwell in us and surrender to Him, we gain wisdom and knowledge for right action.
Something happens to the person who comes to true self-knowledge. He obtains a changed outlook and sees life from a new vantage ground. In spite of the troubles and tribulations around him, there is a calm centre in him. There is a sense of harmony within himself. The daily irritations which life brings will no longer affect him as before. He needs not worry about his daily needs. He will win a degree of control over himself which will permeate all his actions. His life will flow more smoothly.
Though troubles may come, the presence of God within will handle them and direct his path in the right direction. Gradually, he will find more of God’s presence and he will find it easier to face problems. This divine spark within him will strengthen him against temptations and trials and guide him in all his actions.
Our Father in heaven, holy be Your name, Your Kingdom come!
Let us together pray for wisdom and knowledge for right action. Resources Disorientation is true and is a BIG battle to overcome it.
Best regards.
BIG Hope
Comment by BIG Hope — Friday, 23-06-2006 @ 06: 49.51
teresa, please get your facts straight before hurling accusations.
1. “policeman uses his authority to force a lock-up female detainee to have sex with him,”—-> they key word here is FORCE. FORCE dictates that the sexual intercourse was not consensual. therefore your point is totally irrelevant.
2. a bomoh or monk who uses his “professional relationship” with a woman when she seeks help from him, or a doctor with a patient.”—-> in these situations, although at the time of the sexual intercourse the woman would have consented, the consent is based on false presumptions i.e that the bomoh’s treamtment will only work if they have sexual intercourse, and is therefore not proper consent.
3. are you trying to say that anyone who opposes this rape bill is chauvinistic? in that case it will be difficult to not be chauvinistic especially since the bill defines rape as being commmitted on a woman.
please read whatever you have written carefully and think about it. this law is too widely drafted to be accepted. as a member of parliament you should know better.
you do not have to oppose every single thing that is said just because you are a member of the opposition. i think you owe it to the public (the small majority that do vote for you) to at least think your posts through.
in fact, i think your post is chauvinistic since you are saying that women can’t even think for themselves. you are implying that women can consent to sexual intercouse and change their minds in the future if they feel that their partners used their relationship of trust to obtain consent.
are you saying that in the future women can only have sex with men they don’t trust? please don’t be ridiculous
Comment by iiiii — Friday, 23-06-2006 @ 14: 26.07
iiii,
I think you are being a bit harsh here. Teresa is passionate about victim’s rights and given the current deluge of horifying rape cases, higher standard of protection for women are timely.
“teresa, please get your facts straight before hurling accusations.”
—> I think she has valid reasons to disagree with the Bar Council for totally denying an avenue for justice. I have place my opinion on the chinese post and I just repeat here that I agree with Teresa and her committee (she did not come up with these proposals alone). The letter of the law can be there but the standard of proof must be high enough to deter fake accusations.
“1. policeman uses his authority to force a lock-up female detainee to have sex with him,-> they key word here is FORCE. FORCE dictates that the sexual intercourse was not consensual. therefore your point is totally irrelevant.”
—> force = rape, why you say Teresa is irrelevant?
“2. a bomoh or monk who uses his “professional relationship” with a woman when she seeks help from him, or a doctor with a patient.”—-> in these situations, although at the time of the sexual intercourse the woman would have consented, the consent is based on false presumptions i.e that the bomoh’s treamtment will only work if they have sexual intercourse, and is therefore not proper consent.”
—-> misleading a woman, especially when she is under other pressure is undue influence on a victim already at a disadvantage position; this qualifies, in my opinion, as aggraved rape and assault. It does not have to be blood splattered violent kind.
“3. are you trying to say that anyone who opposes this rape bill is chauvinistic? in that case it will be difficult to not be chauvinistic especially since the bill defines rape as being commmitted on a woman.”
—-> I think you are being chauvinistic here. Teresa is speaking for victims, not trying to curtail man’s right to rape, if there is one in the first place.
“please read whatever you have written carefully and think about it. this law is too widely drafted to be accepted. as a member of parliament you should know better.”
—> ‘too widely drafted to be accepted?’ I would like to understand what you are trying to say but I can’t. There is nothing that is “drafted widely”. Please DO READ carefully what YOU write.
“you do not have to oppose every single thing that is said just because you are a member of the opposition. i think you owe it to the public (the small majority that do vote for you) to at least think your posts through.”
—> in a process of drafting laws, arguments and counter arguments are necessary to formulated teory tested final products. Teresa is not a BN “cannot exercise consceince to vote” type of MP. We are dealing with protection of women here, not about towing party lines. Onthe contrary, you are the one that is opposing for the sack of opposing here.
“in fact, i think your post is chauvinistic since you are saying that women can’t even think for themselves. you are implying that women can consent to sexual intercouse and change their minds in the future if they feel that their partners used their relationship of trust to obtain consent.”
—> a higher standard of proof in court is a pre-requisite. There are aleady cases of fradulent rapes reports without this enactment.
are you saying that in the future women can only have sex with men they don’t trust? please don’t be ridiculous”—> women are suppost to have sex with people they love and trust; not the other round as you have suggested. please don’t be ridiculous.
Comment by lee wee tak_ — Friday, 23-06-2006 @ 15: 41.44
lee wee tak,
your arguments don’t make much sense. It is quite obvious that you are having difficulty in understanding what I have said.
Allow me to explain it to you once again.
Let me first start off by saying that I in no way condone rape, and the present laws that define rape are sufficient. However, perhaps the legislature should look at imposing stricter sentences and more caning for rape offences instead of just casting a wider net. The offence of rape is a serious one and should not be defined loosely.
“The letter of the law can be there but the standard of proof must be high enough to deter fake accusations.”—-> firstly I don’t understand Chinese so I have no idea what you are article you are talking about. Next, by making this law stand side by side the existing rape laws and increasing the standard of proof for the new one, the legislature is basically creating 2 laws that are identical in substance but not in form.
“force = rape, why you say Teresa is irrelevant?”—-> i don’t see what is so hard to understand here. Teresa says that the new laws are necessary to cover situations like these. What I am saying is that this situation is already covered under the old laws. Please tell me that you accept that if someone forces you to do something you did not consent to it. If I consent to it, I need not be forced. IT IS ALREADY COVERED. What is preventing these policemen from being charged is perhaps cover-ups and other such things… not the LAW defining rape
“misleading a woman, especially when she is under other pressure is undue influence on a victim already at a disadvantage position; this qualifies, in my opinion, as aggraved rape and assault. It does not have to be blood splattered violent kind”—-> I am seriously doubting if English is your 1st language. What I said was that this situation IS RAPE because the consent was obtained through a lie, and had she known about the lie she would not have had sexual intercourse with him… once again, what I am saying is that THIS SITUATION IS COVERED UNDER THE PRESENT LAW.
“I think you are being chauvinistic here. Teresa is speaking for victims, not trying to curtail man’s right to rape, if there is one in the first place.”—-> you seem to have said something totally different from what I said. All I said was that the way teresa puts it, anyone who opposes this bill will be considered chauvinistic… and that is an unfair comment
“‘too widely drafted to be accepted?’ I would like to understand what you are trying to say but I can’t. There is nothing that is “drafted widely”. Please DO READ carefully what YOU write.”—-> allow me to quote from the bill… ‘relationship of trust’. The concept of relationship of trust encompasses many relationships. It is very ambiguous. Looking at the state of our judiciary we simply cannot allow such WIDE/open-ended statutes into the system. Parliament has to limit it further. Now do you get it?
“in a process of drafting laws, arguments and counter arguments are necessary to formulated teory tested final products. Teresa is not a BN “cannot exercise consceince to vote” type of MP. We are dealing with protection of women here, not about towing party lines. Onthe contrary, you are the one that is opposing for the sack of opposing here.”—-> what is the sack of opposing? Anyway, I am just putting this point across to show that debate is necessary to find a balance, and if that is so, teresa cannot accuse anyone who is on the opposite side from her of being a chauvinist. And lee, I have agreed with teresa on a few points… I have the ability to form my own opinions… you on the other hand seem to be on a leash
“a higher standard of proof in court is a pre-requisite. There are aleady cases of fradulent rapes reports without this enactment.”—-> you keep on saying that a higher standard of proof is necessary. How does the bill ENSURE that the higher standard of proof will be applied? You are just going to assume that the courts will apply a higher standard? Please be practical. The doctrine of separation of powers dictates that the judiciary and parliament are 2 separate entities. Parliament cannot tell the judiciary what standard of proof to apply. They have to ensure that their laws do not in any way jeopardize the liberty of an innocent person.
“women are suppost to have sex with people they love and trust; not the other round as you have suggested. please don’t be ridiculous.”—-> you have just supported my point… once again I shall play kindergarten teacher and explain what I meant. The bill talks about people who are in a “relationship of trust” being open to rape charges. And since most women only have sexual intercourse with people they trust, this bill basically encompasses almost every act of sexual intercourse that takes place. Why not just make a law saying rape is illegal then hope the judges exercise a higher standard of care?
I sincerely hope I have clarified matters. Please try to see the consequences such a bill could have on our society.
Comment by iiiii — Friday, 23-06-2006 @ 16: 26.04
I agree with the Bar Council. I don’t find “rape” a proper term for threats and deceits for sex. They ought to be penalized, but not as rapists.
“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” – It happens everywhere. And of course, it may not involve sex. We call it “大石砸死蟹”.
I also believe we should be focussing on imposing harsher penalties on rapists instead of defining what is considered as rape and what is not.
Comment by 周瑜 — Saturday, 24-06-2006 @ 00: 55.18