THE STATUTORY RAPE LAW IN MALAYSIA: AN ANALYSIS FROM SHARIAH PERSPECTIVE

International Journal of Business, Economics and Law, Vol. 14, Issue 5 (December) ISSN 2289-1552 2017 THE STATUTORY RAPE LAW IN MALAYSIA: AN ANALYSIS FROM SHARIAH PERSPECTIVE Nur Aina Abdulah Sayed Sikandar Shah Haneef ABSTRACT Rape is defined as an unlawful sexual intercourse between a man and a woman without the latter’s consent and against her will according to sections 375 and 376 of Malaysia Penal Code. It is classified into three categories; statutory, non-statutory and incestuous. The statutory rape involves women under the age of 16 regardless of their consent. It is understandable that the statutory rape law intends to protect teenagers from being taken advantage of due to their tender age. In view of the upward trend in the statistics of such victims, amendments to section 375 and 376 Penal Code were made in 2014. However, from the reported cases, more than 50 percent of this category commit it by mutual consent. Therefore, the application of such a law on Muslims raises numerous juridical questions. Accordingly, the main purpose of this paper is to analyse the statutory rape law in Malaysia based on Shariah perspective by using qualitative research approach and adopts the content analysis design. The documents were obtained from various sources, such as journals, reports, books and statistical data obtained from Malaysian Ministry of Women, Family, and Community Development and Parliament Hansard. The books comprise of both Islamic classical and contemporary works and legal texts. The findings show that there are three crucial issues which are problematic in Malaysia statutory rape law from Shariah perspective: first, the issue of consent and determination age of girl; second, the punishment and justice for the male offender, and finally, the deterrence and issue of an illegitimate child. Keywords: statutory rape, rape law, Malaysia, Shariah. INTRODUCTION Rape is a serious crime according to the Malaysian Penal Code and could be punished with imprisonment for a term which may extend to thirty years according to the latest amendment in 2014. Conceptually, rape is classified under sexual offences, which comprises an offence relating to sexual desire between men and women. According to section 375 of Penal Code, rape is defined as an unlawful sexual intercourse between a man and a woman without the latter’s consent and against her will. It is classified into three categories; statutory, non-statutory and incestuous. The statutory rape involves women under the age of 16 regardless of their consent as stated in Penal Code, section 375 (g) as below; 375. A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions: (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or hurt to herself or any other person or obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception; (d) with her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent; (e) with her consent, when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent; (f) 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 (g) with or without her consent, when she is under sixteen years of age. (Law of Malaysia, 2006) From the act above, it is obviously stated that the issue of consent is immaterial in sexual intercourse if it involves the girls’ age under 16 years old. The determination of the girls’ age of consent by the law implies that they are incapable to give consent as they cannot comprehend the nature, quality, and consequences of the act. It is this type of rape which according to the statistics from Parliament Hansard in 2016, has not shown significant decline as shown below: AGE 2013 cases 2014 cases 2015 cases AVERA GE PERCE NT (%) 9 International Journal of Business, Economics and Law, Vol. 14, Issue 5 (December) ISSN 2289-1552 0-12 years old 13-15 years old 16-18 years old Above 18 years old TOTAL 176 157 145 159 7 1248 1086 962 1099 45 687 586 512 595 25 656 520 505 560 23 2767 2349 2124 2413 100 2017 Table 1: Age of Rape’s Victim (Parliament Report, 2016) In view of the above, there is a decrease in a number of cases since 2014 due to the amendments of Malaysia Penal Code regarding rape law, section 375 and 376 Penal Code. Nonetheless, the number of cases is still staggering and need serious attention. Punishment of rape after the amendment as stated in Malaysia Penal Code is as follows: 376. (1)Subject to subsections (2), (3) and (4), whoever commits rape shall be punished with *imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. (2) Whoever commits rape on a woman under any of the following circumstances; (a) at the time of, or immediately before or after the commission of the offence, causes hurt to her or to any other person (b) at the time of, or immediately before or after the commission of the offence, puts her in fear of death or hurt to herself or any other person; (c) the offence was committed in the company of or in the presence of any other person; (d) without her consent, when she is under sixteen years of age; (e) with or without her consent, when she is under twelve years of age; (f) 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; (g) at the time of the offence the woman was pregnant; (h) when by reason or on occasion of the rape, the woman becomes insane; (i) when he knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is or may be transmitted to the woman; (j) when by reason or on occasion of the rape, the woman commits suicide; or (k) when he knew of the mental disability, emotional disorder or physical handicap of the woman at the time of the commission of the crime, shall be punished with imprisonment for a term of not less than *ten years and not more than thirty years and shall also be liable to whipping. *Note- Previously the punishment consisted of “imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping”–see section 9 of the Penal Code (Amendment) Act 2003 [Act A1210] From the act above, it is clear that punishment for statutory rape with consent as stated in Act 376 (1) is imprisonment for a term which may extend to twenty years, and shall also be liable to whipping on those who are found guilty of raping underage girls, who are below 16 years old. While the punishment for statutory rape without consent as stated in Act 376 (2) is the mandatory jail not less than ten years and not more than thirty years. While statutory rape law before the amendment allowed the judges to use their discretionary power in reducing the punishment as enacted in Criminal Procedure Code 294 (1), after the amendment in 2014, it denies any discretionary power of judges in reducing punishment for the offender. However, the statistic in Table 1 shows that 77 percent of victims are below eighteen years old in the year between 2013 to 2015. Surprisingly, the greatest victim category consists of girls aged 13 to 15 years old, considered by law as statutory rape. The perpetrator of this kind of rape is mostly on average 85 percent, known to the victims and has a relationship with them as bellow (Parliament Report, 2016) : NonStranger Family members Boyfriend Acquaintance sOthers TOTAL 2014 CASE 2015 CASE 318 269 942 1,105 856 1,064 121 102 2,486 2,291 Table 2: Categories of Known Suspects in Rape Cases (Parliament Report, 2016). The table above illustrates that approximately 70 percent of known suspects were the boyfriends and acquaintances of the victims. In addition, the Sexual Crime and Children Investigation Division Bukit Aman, Royal Malaysian Police (PDRM) 10 International Journal of Business, Economics and Law, Vol. 14, Issue 5 (December) ISSN 2289-1552 2017 reported that the most cases of statutory rape involved consensual sexual intercourse. On average six to seven cases were reported to the police throughout the country every day for the last three years (Utusan Online, February 2, 2016). Consequently, it reflects terrible social phenomena in our country and serves as a wake-up call to all stakeholders particularly the lawmakers. PROBLEMATIC ISSUES In view of Shariah perspective, the main reason is that the statutory rape law specifically consensual sexual intercourse is problematic primarily from three aspects. First, is the issue of consent and determination of the age of the girl. According to the law, the statutory rape involves women under the age of 16 regardless of their consent. It is understandable that the statutory rape law intends to protect teenagers from being taken advantage of due to their tender age. They are too young to give consent in sexual affairs. However, from the reported cases, more than 50 percent of this category is committed it by mutual consent (Che Thalbi bt Md. Ismail & Aspalella bt A. Rahman, 2014). Initially, it is consensual sexual intercourse, which is a sexual misconduct and crime (zina) under Shariah. Then, it usually turns into an alleged rape offence when the parent’s girl find out about the pregnancy and the male party does not want to be responsible for it. Second, another problematic aspect is punishment and justice for a male offender in rape case with consent. The so-called victims who are consensually involved in it are left free and might repeat the same sexual misconduct (zina) with others but only the male offender is put behind the bar. It seems unfair punishment for the male party. Thirdly, another issue is the aftereffect if such a rape on the pregnancy as the child would be illegitimate with complex problems and consequences for the girl, family, and society. OBJECTIVE Prior to the problematic issues in statutory rape law, application of such a law on Muslims raises three main juridical questions which need investigation. First, the issue of consent and determination age of the girl. Second, the punishment and justice for the male offender. Third, the deterrence and issue of an illegitimate child. Accordingly, this study proposes to critically analyse the statutory rape law in Malaysia based on that aspect with the prime purpose of harmonizing it with Shariah. The results of this analysis hoped can be used by Malaysian legislature and policymakers to reaccess and reexamine the statutory rape law in reforming the law and control the social problems among teenagers nowadays. METHODOLOGY This paper adopts qualitative research approach and involves the content analysis design. It is done by examining the statutory rape law in Malaysia. This method is suitable to comprehend the issue of statutory rape law by providing an in-depth understanding of both civil law and Shariah perspectives. The paper provides exploratory research which is most appropriate to the scope of this research. The document review method was used in data collection. This is the most suitable methods for this study as it aims to comprehend and analyse the statutory rape law from the Shariah and civil law points of view. The documents were obtained from various sources, such as journals, reports, books and statistical data obtained from Malaysian Ministry of Women, Family, and Community and Parliament Hansard. The books comprise of both Islamic classical and contemporary works and legal texts. RESULT AND DISCUSSION The Issue of Consent and Determination of the Girl’s Age The statutory rape which is a part of common law originated from England, aimed to protect the girls from being taken advantages of adults due to their tender age. In addition, at that time, it was a worried social phenomenon when the girls preferred a sexual relationship with the adults. It also intended to protect unwanted early pregnancy by the teenagers. The age limit of consent by girls started with twelve years old in the 13th century, then was lowered to ten in the late 16th century. However, in the United States in the late of 19th century, after the campaign launched by the Women’s Christian Temperance Union and other similar groups, the age was increased gradually and in some cases as high as twenty-one years old to give more protection to girls from sexual aggression (Cocca, 2004). That was the history of statutory rape from which Malaysia Penal Code originates. In Malaysia, the age of consent in sexual intercourse is sixteen years old and the law deems that girls under sixteen are incapable to give consent. In other word, consent in sexual intercourse is immaterial for the girls under sixteen years old. In Shariah, the children are those individuals who have not yet reached the age of puberty. Children are categorized into two: mumayyiz and non-mumayyiz. Mumayyiz means the age when the child can differentiate between right and wrong. It starts from the age of seven until he attains the puberty. While non-mumayyiz is the age when the child still cannot discern between good and bad. It ranges from birth until the age is six years old (Wahbah al-Zuhayli, 2008). Meanwhile, puberty or ‘bulugh’ in Islam means the starting point of age when Muslim becomes fully accountable and responsible for his deeds in front of Allah. He or she is also recognized as ‘mukallaf’ in Islamic term as they have reached the complete competency known as ‘ahliyyah ada’al-kamilah (Abdul Karim Zaidan, 2006). The puberty can be determined by attaining certain natural sexual traits, such as menstruation (haid) by a girl and wet dream by a boy. Consequently, in scientific terms, sexual maturity is a stage in the process of physical changes into adulthood by which both boy and girl will be capable of sexual reproduction. Nevertheless, if a child does not exhibit such signs until he/she is big enough like his/her contemporary, then jurists set an age-limit for both the sexes. However, they differed on it. According to Syafi’e and Hanbali school of thought (mazahib) the earliest age when the woman can reach puberty is nine and for the boy is twelve (Al-Jaziri, 2002). They assert that the maximum age of puberty is fifteen years for both. In contrast to Maliki school of thought, the age of puberty for girl and boy 11 International Journal of Business, Economics and Law, Vol. 14, Issue 5 (December) ISSN 2289-1552 2017 is eighteen years old. While to Hanafi school of thought, the puberty age for a boy is eighteen years and for the girl is seventeen years (Wahbah al-Zuhayli, 2007). In relation to the criminal liability in Islam, for non-mumayyiz children; they definitely are not accountable for their acts, no criminal liability for them. In contrast with the mumayyiz children which they have a criminal liability as their brain could recognise the act, but the liability is not complete like the ones who reached puberty (Abdul Karim Zaidan, 2006). This justification is according to the Prophet Muhammad s.a.w. said; ‫ وعن ال جنو ح ى يفيق‬،‫ وعن الصبي ح ى يح لم‬،‫ عن النائم ح ى يس يقظ‬: ‫رفع القلم عن ثا‬ Meaning: There are three (persons) whose actions are not recorded: a sleeper till he awakes, a boy till he reaches puberty, and a lunatic till he comes to reason (Abi Daud, 2007). Relying on the hadith, it affirms that if the child has not reached the puberty, he remains a child and is not accountable to his act including criminal liability pertaining to the sins which he/she commits. To be more precise, once the Muslim attained puberty, he is fully accountable for all his actions including criminal liability. However, according to the police reports and the statistic is given above, the reality of statutory rape in Malaysia reveals an alarming trend. Most of the statutory rape cases reported involving consensual sexual intercourse and girls aged between thirteen to the fifth teen comprises the biggest category involved in it. Are they really incapable to give consent? Do they really not comprehend and understand the nature and consequences of the act? On the other hand, at the same time, the testimony given by a child is recognized and admissible if the child can comprehend and understand the oath and the importance of truth speaking as stated in Section 133A of Evidence Act 1950 (Law of Malaysia, 2012). Indeed, in the modern lifestyle with exposure to the information technology particularly those relating to sexual activity easily accessible by young Malaysian girls, would render them more sexually active and explosive much earlier than sixteen years old (Che Thalbi bt Md. Ismail & Aspalella bt A. Rahman, 2014). Further, the researchers also have proven that main contributing factor for statutory rape is the culture of coupling(free intermingling) among youth at the young age (Bazlin Darina Ahmad Tajudin, 2011). Prior to the above, statistic from Parliament and police reports revealed that the biggest group involved in rape is the teenagers between thirteen to fifteen years old which categorized by law as statutory rape. Surprisingly, most them were involved in consensual sexual intercourse (Utusan Online, February 2, 2016). Therefore, in this new era and development, the determination of sixteen years old by the law does not meet the changing mores about sexuality. Girls and boys of sixteen years today have sufficiently capable of understanding the actions and consequences of sexual intercourse. Consent is a willingness that is given with consciousness and functional mind. But rape is an unwanted illegal sexual intercourse without consent. It reflects that the age of sixteen years old for the girls should be review carefully and harmonized with Shariah perspective. The age should be lowered to thirteen relying on the view Syafi’e school of thought and based on police reports above. Punishment and Justice for Male Offender The punishment for the statutory rape with consent as stated in Act 376 (1) is imprisonment for a term which may extend to twenty years, and shall also be liable to whipping sentence will be imposed on those who are found guilty of raping underage girls, who are below 16 years old. While the punishment for statutory rape without consent as stated in Act 376 (2) is the mandatory jail not less than ten years and not more than thirty years. Meanwhile, for statutory rape law before the amendment allows the judges to use their discretionary power in reducing the punishment as enacted in Criminal Procedure Code 294 (1). Then, after the amendment in 2014, it denies any discretionary power of judges in reducing punishment for the offender. Nonetheless, the focus of this paper is on consensual sexual intercourse by teenagers under sixteen years old. It is obviously an unfair judgment for the male party, whereas the girls are left free and might repeat the same offence with other boys. Indeed, the majority of the male offender who was convicted do not feel guilty of the offence because they claimed that it is not a rape, as it was consensual sexual intercourse. Moreover, they argued that they are unsatisfied with the punishment (Haja Mydin Abdul Kuthoos, Noraida Endut, Azman Azwan Azmawati, Intan Hashimah Mohd Hashim, & Nor Hafizah Selamat, 2016). In fact, their claims are valid in Shariah perspective. It is not rape but adultery (zina) which is strictly prohibited to preserve the lineage, hifz al-nasl. Furthermore, based on the police reports, section 375(g) always be misused and misapplied by the girl’s parent to trap the boy who has impregnated their daughter. It purposely intends to protect the dignity of the family from society’s insult as the girl is not even found guilty. This is absolutely a worrying condition and contradictory with Shariah principle. It also greatly impact on the moral fibre of society (Noor Azlan Mohd. Nor, Bazlin Darina Ahmad Tajudin, & Mohamad Ismail Hj. Mohd. Yunus, 2013) In Shariah, an illegal consensual sexual intercourse is adultery known as zina which is a serious crime and deserve a fixed punishment (hudud) (’Audah, 2005). It is one of the violation and infringement of lineage (hifz al-nasl) as one of the principal objectives of Shariah (maqasid Shariah) (Wahbah al-Zuhayli, 2008). Hence, the punishment in Malaysian statutory rape law in particular consensual sexual intercourse contains an unjust punishment for male offender and needs reformation. The female party is supposed to be inflicted with the same punishment. Actually, the case should be charged under zina in Shariah criminal law in Shariah Court, rather than convicted under Penal Code in Civil Court. 12 International Journal of Business, Economics and Law, Vol. 14, Issue 5 (December) ISSN 2289-1552 2017 Deterrence and Issue of Illegitimate Child According to Malaysian Registration Department, a total of 159, 725 babies were born as illegitimate children from the year 2013 to 2015. Ironically, there is no record of registration from non-muslim illegitimate children (Berita Harian Online, September 13, 2016). To be more precise, it means the mommies of these babies are a Muslim. In addition, Family Health Development Division Ministry of Health revealed the statistic of 18, 000 pregnant teenagers who were recorded and they get their medical check-up in Government Health Clinic from the year 2011 to 2013. The studies also show that the main factor leading to out wedlock pregnancies by teenagers include living environment, peer influence and the exposure to widespread sexual activity in the web (Khadijah Alavi et al., 2012). It is a great concern and wakeup call for us to do something in curbing this serious issue. The provision in statutory rape law particularly consensual sexual intercourse also contributes to the statistic when the girl's offender is left free and might repeat the same offence. Then, if such girls are pregnant and give birth to such children, the index increases. Therefore, the harmonisation between Penal Code and Shariah perspective is needed in curbing this serious issue. The objective of Shariah (maqasid Shariah) clearly indicates that lineage (al-nasl) is important for social cohesion. Once it is violated, society would be living in chaos and chaotic. CONCLUSION AND RECOMMENDATION In short, the statutory rape law in Malaysia needs reformation and harmonization with Shariah. In addition, it also needs to be interactive and in tandem with current issue and globalization in this new era. The law is hoped to play an active role and fulfil the punishment’s principles of prevention and deterrence in ensuring the safety, peace, and harmony among the society. Hence, there are several conclusions and recommendations to the Malaysia statutory rape law from Shariah perspective; 1. The issue of consent for Muslim offender is material and paramount to charge the case under Penal Code or Shariah criminal law of the state. If it is really rape without consent, they should be convicted under Penal Code. Conversely, if it is a consensual sexual intercourse it should be charged under Shariah criminal law. Then, the act 355 Shariah Court (Criminal Jurisdiction) of Federal Constitution also needs an amendment to enhance and upgrade the punishment. 2. The word ‘with her consent’ in Penal Code section 375 (g) for the girls under sixteen years of age needs to be removed for two reasons: a) b) 3. 4. 5. Consent in sexual intercourse is a willingness instead of rape. In fact, rape is a serious crime and illegal sexual intercourse without consent. It would be the best prevention, sadd zara’ie, from illegal sexual intercourse which prohibited zina in Islam. Moreover, it would deter others from misusing it for personal benefit. The consent age for sexual intercourse of sixteen years old needs to be lowered to thirteen relying on the statistic and police reports above. It is due to the fact that biggest group involved in rape are the teenagers between thirteen to fifteen years old which categorized by law as statutory rape. Indeed, the majority of them involved consensual sexual intercourse. In fact, in this new era and development, the limit of sixteen years age does meet the changing sexuality culture of youths today. Indeed, the children nowadays attain their puberty and intellectuality earlier even since ten years old. Therefore, they are sufficiently capable of understanding the act and consequences of sexual intercourse. The mandatory jail at least ten years for those men who really raped under aged girls without consent as stated in Penal Code Section 376 (2) is not enough punishment as a deterrence to others. Furthermore, the offenders might repeat the same crime after imprisonment. In fact, the punishment also needs to be implemented to the non-statutory rape as Shariah does not differentiate between statutory rape and ordinary rape. Both are crimes and prohibited in Islam and considered as serious infringement and violation to the dignity of woman that needs to be protected on the ground of maqasid Shariah (hifz al-nasl). The punishment in existing law of statutory rape is unfair for the male party in consensual sexual intercourse. While the female is left free and might repeat the same crime with others and give birth to more children out of wedlock. It is contradictory to Shariah objective of preserving the lineage (hifz al-nasl). The law supposedly is to balance the retribution for both parties and at the same time control and curb the problem of illegitimate children. The statistic of illegitimate children in Malaysia keeps increasing year to year and really needs an action. REFERENCES ’Audah, A. Q. (2005). Al- Tashri’ al-Jinaie al-Islami, Muqaranan bi al-Qanun al-Wud’ie. Beirut, Lubnan: Dar al-Kutub alIlmiah. Abdul Karim Zaidan. (2006). Al-Wajiz fi Usul al-Fiqh. Beirut, Lubnan: Al-Risalah Publishing House. Abi Daud, S. bin A.-’Ashath al-S. (2007). Sunan Abi Daud. Beirut, Lubnan: Dar al-Kutub al-Ilmiah. Al-Jaziri, A. R. bin M. I. (2002). Kitab al-Fiqh “ala al-Mazahib al-Arba”ah. Beirut, Lubnan: Dar Ihya’ al-Turath al-A’rabi. Bazlin Darina Ahmad Tajudin. (2011). 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Wahbah al-Zuhayli. (2008). Usul al-Fiqh al-Islami. Dimasq, Syria: Dar al-Fikr. http://www.utusan.com.my/berita/nasional/3-980-remaja-hamil-anak-luar-nikah-1.380841 https://www.bharian.com.my/node/192319 http://www.utusan.com.my/berita/nasional/tujuh-kes-rogol-bawah-umur-setiap-hari-1.185859 Nur Aina Abdulah PhD Candidate Department Fiqh, Kuliyyah Islamic Revealed Knowledge International Islamic University of Malaysia, 50728 Kuala Lumpur, Malaysia Email: [email protected] Sayed Sikandar Shah Haneef Professor Department Fiqh, Kuliyyah Islamic Revealed Knowledge International Islamic University of Malaysia, 50728 Kuala Lumpur, Malaysia Email: [email protected] 14