Image downloaded from Microsoft Office website. Available at here.
I made a mistake when discussing on the legal definition of a child in Malaysia and the definition of statutory, and so I thought it would be a good idea to revise on this topic.
I mistakenly thought that a child in Malaysia is defined as one aged 18 years old and below. I was wrong. According to the Malaysian Child Act 2001 or Act 611, a child is defined as
a person under the age of eighteen years or below 18 years old(NOT 18 years and below)
However, as Nadesan and Omar (2002) writes, the consenting age for sexual intercourse in Malaysia is 16 years old. As such, statutory rape is defined as sexual intercourse (regardless of whether WITH or WITHOUTconsent) with a girl BELOW 16 years old (AND NOT with ANY child).
Therefore, there exist a time period where a person under the age of 18 years old AND above the age of 16 years old, CAN consent to sexual intercourse, but cannot give consent to medical procedures and treatment (because she is below 18 years old).
The article written by Nadesan and Omar in 2002 is an excellent treatise of the current rape scenario in the Malaysian context. The article can be downloaded here.
The criteria of rape as per Section 375 of the Penal Code is as below:
Against her will
Without her consent
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
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
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
With or without her consent, when she is under sixteen years of age (statutory rape)
The word rape originates from the Latin word "rapere", which means "to snatch". Often, to snatch something from someone would entail some amount of violence imposed. Furthermore, according to Section 375 of the Penal Code above, rape is defined when the sexual intercourse is done "against her will". As such, this places the burden on the victim and the prosecution team to establish the evidence of violence and "against her will". This can pose serious problems because, as Nadesan and Omar (2002) said:
".....the absence of injuries does not necessarily mean that the woman was a willing partner. Owing to many reasons, a victim may not resist the rapist and in that event the chances of a physical attack by the rapist is reduced. When victims are taken by surprise they may be too scared to resist. More importantly, in many instances the rapist is an immediate family member, a close relative or a friend. Several cases are actually incest and many more are statutory rapes where the victims are under the age of sixteen years."
In many countries, the burden of proof has been shifted to the defendant (alleged perpetrator) to prove that there was consent for sexual intercourse, but in Malaysia, the position still remains unchanged for the prosecution to establish that the woman did not consent.
Another thing I learned from the article by Nadesan and Omar (2002) is that amendment to the 1988 Section 146A of the Evidence Act (Act 56) states that no question in cross-examination shall be adduced or asked concerning the sexual activity of the complainant with any other person other than the accused. Previously, victims during cross-examinations were asked about their sexual encounters with persons other than the suspect in order to discredit their moral behavior.
Doctors and nurses working in the emergency departments should have a general knowledge of this important issue as these victims will be presented to the One Stop Crisis Center (OSCC) in emergency department. It is of utmost importance that such victims be accorded to utter privacy and confidentiality. No gossiping of the nature of the suffering inflicted upon the victim should be discussed among healthcare professionals!
Download this powerpoint by following this link and clicking on the "Download" button
In my preparation for the lecture on OSCC for final year medical students (power point slides attached above), I find that the amount of information and powerpoint slides on OSCC from the medical point of view is grossly inadequate. Many of the resources that I have found lack a good grasp on fundamental legal background knowledge. Although we are not called to be lawyers, but as doctors (particularly doctors working in the emergency medicine departments), we should have at least some background legal knowledge especially pertaining to common cases seen in OSCC. Furthermore, these cases are loaded with medico-legal implications.
After doing further research on this topic, I found out that there are much more information out there than what I've ever known, particular legal knowledge on such cases. In this post, I have pieced together some of these information that I have found, which I hope will be of use to Malaysian doctors.
Before continuing, some historical background on OSCC:
1986 - First OSCC established in the University Hospital (UMMC), as a response to the anti-violence against women campaign staged by women‘s organizations in the preceding year.
1993 - to make the service more widely available, the second was created in Hospital Kuala Lumpur (HKL). Before that, all cases were handled on ad-hoc basis.
1996 - Ministry of Health Malaysia directed all state hospitals to set up the OSCC for victims of domestic violence.
By 1997, the OSCC was established in 90 per cent of government hospitals nationwide. At present, there are more than 100 centers throughout the country.
When a woman comes to the Accident and Emergency Unit at any of these hospitals, saying that they suffer injuries due to rape or domestic violence, etc, the OSCC arranges an immediate medical examination by a doctor, as well as providing treatment. The OSCC room will be used for the management, treatment and counseling of the victim conditions - including rape, sexual assault, domestic violence, child abuse and sodomy. There shall be a patient toilet and shower facility within this room.
In other words, OSCC is a place where the victims can seek treatment, obtain other form of necessary help.
It is a PATIENT CENTERED MANAGEMENT place because officers from all relevant agencies will come to provide assistance once they are called.
Malaysian Legal Definition of Rape:
Under Section 375 of the Penal Code, it is defined as:
Sexual intercourse obtained through force or threat of force without the victim’s consent. There must be some penile penetration, however slight. Ejaculation is not necessary (Section 375 Penal Code)
Whereas Section 376 of the Penal Code states that whoever commits rape shall be punished with imprisonment for a minimum term of five years and a maximum term of twenty years, and shall be liable to whipping.
Unfortunately, the current definition of rape has gross limitations:
It excludes other violent acts such as penile penetration of the victim’s mouth or anus, or insertion of fingers and other objects into the survivor’s vagina, and
It excludes the possibility of men being raped when in reality men and boys are also subjected to acts of sexual violence, degradation, and violations of their body too
It excludes the possibility that wives can be raped by their husbands, thereby treating married women as the property of their husbands and to be used by them as they please.
The Women's Center For Change Penang (WCC Penang) website has an eye-opening section on myths of rape. Click here.
Statutory Rape The offense of statutory rape in Malaysia is dealt under Section 375 of the Malaysian Penal Code.
Statutory rape is defined as any sexual intercourse with a girl under 16 years of age is considered rape irrespective of whether victim’s consent was obtained.
Fresh vs Cold cases Fresh Rape Case: any rape survivors presenting to health facility within 72 hours of the incident.
Cold Rape Case: any rape survivor presenting to health facility after 72 hours of the incident.
Sexual Assault All other offenses such as non-consented kissing and fondling of the breast or woman’s private part [an outrage of modesty but without penetration] as well as forced anal sex, and the insertion of objects into the vagina, mouth or anus maybe charged under "sexual assault".
Sodomy Charges
Sodomy/carnal intercourse is charged under Penal Code Section 377
Section 377A defines what a carnal intercourse means
Section 377B describes offenses in consensual carnal intercourse
Section 377C describes offenses in non-consensual carnal intercourse (against the will)
“Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.” (Penal Code, Section 377A)
“Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years,and shall also be liable to whipping.” (Penal Code, Section 377B)
“Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.” (Penal Code Section 377C
In other words, sodomy is a crime whether consensual or non-consensual.
Resources:
Download the article Gender Discriminatory Laws in Malaysia. Click here.
Download the article Status of Women Under Malaysian Laws. Click here. Download the article Rape - the Malaysian scenario. Click here.
Domestic Violence Q: Is there any legal provision under the Malaysian Law for domestic violence?
Yes. With the passing of the Domestic Violence Act (DVA) in 1994, domestic violence was no longer a private matter but a societal concern. It is a crime under the penal code.
Download the Domestic Violence Act 1994 here. Click here.
Under the Domestic Violence Act 1994, it means the commission of any of the following acts:
willfully or knowingly placing, or attempting to place, the victim in fear of physical injury causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury
compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has right to abstain
confining or detaining the victim against the victim’s will or
causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim
The important thing to do with the Domestic Violence Act is to get an INTERIM PROTECTION ORDER for the victim.
Note: Interim Protection Order is only valid during the period of investigation to prohibit the person against whom the order is made from further harming the victim. Interim Protection Order ceases once the period of investigation is completed. For better further protection, get a Protection Order especially once the offender is charged with a crime. Click here to read further on this.
So, is domestic violence per se a crime under the Malaysian law?
No. Domestic Violence per se is not a specific crime under Domestic Violence Act 1994, although domestic violence can inevitably lead to physical injuries.
In other words, the legislation of Domestic Violence Act 1994 has to be read together with the provisions under the Penal Code.
Click here for an article in the Malaysian Bar for further explanation.
Child Abuse
Under the The Child Act 2001 (Akta Kanak-kanak 2001), a child is defined as
any human being under 18 years of age (Section 2, The Child Act 2001)
PLEASE NOTE: All contents in this blog are copyrighted materials, unless otherwise stated. Even if you encounter materials in this page without a copyright notice, it does not mean that it is not copyrighted (Click here to read TEN BIG myths on copyright explained). This is especially so as most nations are signatories of the Berne Convention on international copyright law (World Intellectual Property Organization). Nevertheless, I have licensed almost all the materials contained here under Creative Commons licenses strictly for educational, non-commercial purposes only. Kindly email me at [email protected] should you want to use any of the materials for commercial purposes. Thank you.
