Rape, Zina and Incest

Sisters in Islam shares the concern expressed by the Deputy Prime Minister that the absence of a definition on rape in syariah law has led to victims of rape being charged for zina (illicit sex). Throughout the history of Islam, differing human interpretations and understanding of the word of God had always existed. We as a society must debate and discuss in a rational and informed manner which interpretation will serve the best interest of our multi-ethnic, multi-religious, industrialising and modernising society.

In Pakistan, it is reported that three out of four women in prison under its Hudud laws, are rape victims. Because rape is equated with zina under Hudud law, rape victims are required to produce four pious male witnesses. It is of course nearly impossible for the rape victims to produce the four male witnesses required to prove their allegation. Therefore their police report of rape was taken as a confession of illicit sex on their part and they were duly found guilty. 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. It is because of such gross injustice and abuse of the law that Sisters in Islam objected to several provisions which discriminated against women in the Hudud Enactment of Kelantan in 1993.

The enforcement of such laws leaves rape victims who are unable to provide four male eye witnesses liable to prosecution for illicit sex. In Malaysia, rape is a crime under the Penal Code. There is therefore no necessity for a new crime of rape under the Syariah criminal offences legislation as this would lead to a further conflict of jurisdiction between civil and syariah law. All citizens, whether Muslims or non-Muslims, who commit the crime of rape, which includes incest, should be prosecuted under the Penal Code.

According to the Federal Constitution crime is a federal matter and effort must be made to minimise areas of overlapping of jurisdiction between civil and syariah law which have already led to numerous cases of conflict that must be addressed by the authorities in consultation with NGOs. We feel there are adequate provisions in the Penal Code to deal with the Deputy Prime Minister’s concern of sexual abuse at home.

Even though the crime of incest is not defined in the Penal Code, the perpetrator could be charged for rape and the judge should take into consideration the aggravating circumstances of a family relationship and impose a higher sentence on the rapist. Incest, however, is a specific crime under the Syariah Criminal Code. In an unprecedented case in Kelantan recently, a 17-year-old daughter was charged for incest with her father under the Kelantan Syariah Criminal Code. Sisters in Islam views this development with deep concern. 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. In this case, the cause of justice would have better been 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.

This sentencing properly reflects the gravity of the crime committed and society’s abhorrence of such a crime. However, under the Kelantan Syariah Criminal Code, the person who commits incest is liable only to a fine not exceeding $3,000 or to imprisonment for a term not exceeding two years, or both. In the Kelantan case, society would regard the daughter as the victim, not the offender. She is regarded as a minor under civil law and should have been given the professional care and support she so necessarily needed to help her overcome the trauma of an incestuous relationship. She should not have been treated as a criminal.

Sisters in Islam urges the Government to form a committee which includes women’s groups and other NGOs to review the Syariah Criminal Law and its many provisions which conflict or overlap with civil law, which conflict with constitutional provisions on fundamental liberties and which discriminate against women and marginalised communities.

Sisters in Islam
6 April 2000