Bar Council's proposal on definition of rape

Another must-read article is the letter from the President of Bar Council, Yeo Yang Poh, published in the New Straits Times today. I am in full support of the Bar Council's view on this issue, contrary to the view of my party comrade, Teresa Kok, who is a member in the Select Committee of Parliament that proposes the amendments currently debated in Parliament.

The net is cast far too wide

18 Jul 2006

YEO YANG POH, President, Malaysian Bar

THE amendments to the Penal Code and the Criminal Procedure Code proposed by the Parliamentary Select Committee are being considered in Parliament.The vast majority of the proposed changes are positive.

The Bar Council commends and congratulates the select committee for introducing these progressive changes. An area of change concerns the widening of the definition of "rape" in Sections 375 and 376 of the Penal Code, with the objective of addressing custodial rape, offences committed by "spiritual healers", as well as by persons in authority or persons holding positions superior to the victims.

It is in this regard that the Bar Council has expressed reservation, and urged caution, in relation to the current proposals. The Bar Council agrees that (among other things) issues concerning custodial rape and offences committed by persons who abuse their superior positions of authority must be adequately addressed.

However, the wording of the proposed provision, in the Council’s view, is unsatisfactory, for the reasons that follow.

The proposed new sub-section 375(f) deals with new categories of rape, where sexual intercourse with the consent of a woman will become rape if:

(a) her consent was obtained by the offender "using his position of authority over her", or

(b) her consent was obtained "because of professional relationship", or

(c) her consent was obtained because of "other relationship of trust in relation to her".

The Bar Council appreciates the objective behind this new proposal. It is necessary to nab offenders who abuse their positions or trust in circumstances that would vitiate the consent and, therefore, amount to rape.

However, in the same breath, the new provision as it is at present drafted will be capable of "catching" situations in which consent should not be treated as vitiated.

This unintentional effect is due to its general and broad wording. For example, consent given "because of professional relationship" will have such a wide ambit; and making the "use of position" (rather than abuse of position) an element of the crime of rape causes concern.

It is important not to cast the net so wide or sweepingly that persons who should not be assigned the same type or degree of culpability might be "caught" by such laws.

The Bar Council suggests that sub-section 375(f) be re-worded in the following manner:

"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:

(f) With her consent, when the consent was obtained by duress, coercion, threat, inducement or promise made by an accused:

• Who was a public servant having authority or control over her, or who was responsible for her protection, safety, welfare or well-being; or

• Who was a public servant, officer, agent, employee, or person who works at any place of detention, custody or training, or who was responsible for her protection, safety, welfare or well-being at such place; or

• On whom she relied for religious or spiritual guidance, teaching or practice; or for cure or treatment of herself or any member of her family; or

• Who was in a position of power, authority or trust in relation to her, and who abused his position to obtain such consent; provided that if such consent was obtained by threat, inducement or promise, it shall be a defence if the circumstances were such that there was reasonable opportunity for her to have refused consent."

Similar amendments are applicable to sub-section 376(2)(f).