Rape and Incest as Penal Code Offences

The Penal Code should be applied to both Muslims and non-Muslims for the crimes of rape and incest. The categorisation of rape as zina (adultery or fornication) and the strict evidentiary rules for the proof of such a crime in syariah law have led to victims of rape being charged for zina in some Muslim countries.

Zina is a Hudud offence. Rape victims are therefore required to produce four pious male witnesses to prove their allegation. This is of course an impossible task. The victim’s police report of rape is then taken as a confession of illicit sex in these countries. Judges have then concluded that the intercourse was therefore consensual and found the rape victim guilty of zina.

In such circumstances, women who have been raped would not make a police report or are pressured to withdraw their police reports because of the threat of being charged for illicit sex. Their inability to produce witnesses also make them liable to be charged for the syariah crime of slander (qazf) because they have effectively slandered the alleged rapist by falsely accusing him of zina.

In the real world, rape is unlikely to occur in the open, such that four pious males can observe the act of penetration. If they actually did witness such an act, and have not sought to prevent it, then technically they are abettors to the crime. In reality, unless the rapist confesses to the crime, women can never prove rape at all if rape is placed under syariah jurisdiction as traditionally interpreted.

Incest, however, is a specific crime under the Syariah Criminal Codes of the various states in Malaysia. This overlapping area of jurisdiction means men who have raped their own daughters can be charged for incest under the Syariah Code where the maximum punishment is only two-years imprisonment and a $3,000 fine. This punishment does not reflect the gravity of the crime committed and society’s abhorrence of such a crime.

[In Kelantan earlier this year, a 17-year-old daughter was charged for incest with her father under the Kelantan Syariah Criminal Code. That the Syariah prosecutors regarded the girl as a willing partner in the commission of the crime and therefore an offender, rather than a victim, is totally against the grain of justice. The girl is a juvenile under the authority and control of her father. The failure of the Syariah judicial officers to understand the dynamics of power relationship led to the prosecution of a daughter, a victim of sexual abuse by the father, as if she was an equal perpetrator and willing partner in the crime.

The cause of justice would have been better served if the father was charged with rape under the Penal Code where he is liable to imprisonment for not less than five years and not more than 20 years. Instead the 36-year old father was only jailed for two years, fined a total of $4,000 and given two strokes of the rotan when he pleaded guilty to charges of incest and prelimininaries to adultery (mukaddimah zina).]

According to the Federal Constitution crime is a federal matter and effort must be made to minimise areas of overlapping jurisdiction and conflict of laws between civil and syariah laws which have led to injustice and misery to so many families and victims.

Sisters in Islam urges the Government to form a committee which includes women’s groups and other NGOs to review these areas of conflict.

Sisters in Islam
30 November 2000