Rape, Zina and Incest

Rape, Zina and Incest
Sisters in Islam shares theconcern expressed by theDeputy 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 humaninterpretations 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 ontheir 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 notsought to prevent it,
thentechnically 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 grossinjustice 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
ofsuch 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
Muslimsor 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 civiland
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 theKelantan Syariah
CriminalCode. Sisters in Islam views this development with deep
concern.
That the Syariah prosecutors regarded thegirl 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 controlof 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 betterbeen served if the
father was charged with rape under the Penal Code where he is liable
to imprisonment for not lessthan 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 andsupport 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 groupsand other NGOs to reviewthe 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.