In battling violence against women, All Women's Action Society in Malaysia (Awam) should not go overboard in lobbying for amendment to rape-related laws without considering its implications ( 'All rise against rape — getting the law in order'

Section 376 of the Penal Code already provides, as punishment for rape, an imprisonment term of not less than five years and not more than 20 years in addition to whipping.

When violent men gang-raped a woman and set her on fire were sentenced to only five years in jail, the problem was not the inadequacy of existing rape laws but the inadequacy of sentencing based on the minimum of five instead of the maximum of 20 years.

The judge's leniency relative to the severity of the violence may be faulted but not the adequacy of existing rape laws. Let this distinction be clear.

Non-consensual penetration of male organ into the female's is the traditional definition of rape. In preventing violence to women, let us not do violence to the meaning of the word 'rape' by expanding its scope to cover penetration by "bottles, hangers, sticks and other like apparatus", by which expression "apparatus" will no doubt include finger or tongue as well!

To be sure, greater violence measured in terms of physical and emotional trauma can be perpetrated against a woman by the use of objects other than a male's organ but these acts are already covered under existing laws on sexual assault and battery (as distinct from rape).

If the severity of such crimes is deemed not adequately reflected, then by all means increase their range of imprisonment term to that equal to or more than that of rape.

It is however not necessary to blur the conceptual distinction between rape and sexual assault/battery and, worse still, suggest at the same time that rape may also take place between members of the same sex.

For to do so would lead to the absurd conclusion that a woman can technically commit rape on another woman as when a lesbian woman molests another unwilling woman by her probing forefinger!

Is this what Awam truly intends — to establish rape not only by a woman who helps a man to rape another woman but also a lesbian woman on another woman?

Or is it to prevent rape by men of other men? If it were the latter, it would be meaningful only when a further amendment is made to extend the prerequisite of vaginal penetration (for establishing rape) to penetration of any other bodily orifice as well (those of nose and ear being excepted).

Otherwise, a man can coerce anal intercourse on either a man or woman, and whilst guilty of sexual assault and battery, is however technically still not guilty of rape!

The absurdities highlighted is just one of the many logical inconsistencies in trifling around with the meaning of rape as it is traditionally understood.

The proposed reform of the Evidence Act 1950 by a requisite "unambiguous and unequivocal provision — that the burden of proof in a rape case would fall solely and entirely on the accused, not the victim, to prove his/her innocence" is another example of confused thinking based on the ideological premise of rape being always a case of victimisation of women by men (with sometimes the assistance of women accomplice) due to unequal gender power relations.

But unequal gender power relation is not the issue here when it is recalled that in every case of a woman's lodging a police report of rape, it is the state that investigates, prefers and prosecutes the rape charge on behalf of the community. And every citizen, whether male or female, has the right to require the state to prove its case beyond reasonable doubt whether the case concerns rape, robbery or murder!

Where is justice if a woman's accusation is assumed to be prima facie true, and the man accused is presumed to be lying, unless he could discharge his burden of proving his innocence otherwise? Where is justice especially when it is always easier for a woman to accuse a man of rape than for him to disprove it? It is perilously close to another form of Internal Security Act.

Isn't it odd and inconsistent that when a man is accused of and charged with a lesser violent crime of (say) petty theft, shoplifting or cheating, he has the right to require the state to prove his guilt beyond reasonable doubt whilst if he were faced with a graver charge of rape carrying a more severe punishment, he loses immediately his civil right to have the state prove the case against him and is required instead to prove his own innocence?

It is the object of criminal justice system to punish crime after determining guilt by a uniform evidential procedure not inconsistent with a citizen's civil right to have the state prove the case against him. It should not be tainted by gender politics.

Any reversal of burden of proof in cases of rape upon assumptions that the woman is assumed victim, and the man victimiser, is manifestly prejudiced at the outset against the man and ought to be struck down as contrary to Article 8(2) of our Federal Constitution upholding gender equality.

Indeed, like many other affirmative action programmes whether based on race, religion or gender, this overzealous campaign to redress every conceivable historical injury and slight to women has the tendency of neglecting fairness to all those categorised as perceived victimiser and prejudiced by reverse discrimination. There is also a neglect to weigh and balance such a programme against other competing principles important to civil society.

Take for example Awam's proposal to introduce marital rape.

Of course, it is always possible for a husband to physically force a wife to have sex. I think it is wrong for him to do so and no woman should be so subject. There is also much force in the argument that if marriage does not give a husband a licence to perpetrate domestic violence against the wife, so forced sex is a form of violence that should not be allowed to go unpunished.

More so in a marital context than others, the distinction between acceptable pro-active sexual persuasion on one hand and coercion amounting to rape on the other is at best tenuous. Then there is the factor of reasonable provocation.

Can a wife strut around the matrimonial home or even sleep next to her husband in a perpetual state of near undress and yet claim that her husband is not entitled at any time to be so provoked as to force her?

Also in the face of sexual coercion or threat of it by a husband, the wife could be accorded the peremptory right to divorce him on this ground, or short of that finality, apply for a judicial separation or injunction order for him to "cool" off.

If the wife avails herself to these remedies, existing laws already recognise and remove the husband's traditional immunity from rape in instances while she is living separately from him under a decree of judicial separation or a decree nisi not made absolute, or if the woman has obtained an injunction restraining her husband from having sexual intercourse with her.

However, when a wife fails to avail herself to these redresses and relief and chooses to live with him nevertheless, how else can one view her if not that she has either waived these rights or acquiesced to put up with the suffering — in either case of which how could she subsequently contend an absence of her consent necessary in establishing any specie of rape?

If marital rape were criminalised, the alleged non-consent of the wife — a necessary ingredient to prove rape — is always suspect and difficult for the wife to prove unless one again shifts the burden of proof to the husband to prove his innocence with all its equally unjust consequences.

In fighting for criminalisation of marital rape as an extension of the fight against domestic violence, it is necessary to weigh and balance it against the other competing consideration important to society, and that is the necessity to foster and preserve mutual trust between spouses within the institution of family and marriage, which may be immediately subverted when a husband feels that any active sexual initiative on his part that is not appreciated by the wife may potentially invite a charge of marital rape or attempted marital rape.

What then is the husband reasonably expected to do in relation to his libido? If he were to have sex with a woman other than his wife to avert marital rape of his wife, he would be guilty of the matrimonial offence of adultery and punished for marital infidelity with another woman. Either way the husband loses, and who would encourage any man to marry under the regimes of monogamous and marital rape laws?

For the same reason of trust preservation, there is an evidential rule that makes marital communication privileged and prohibits a spouse from giving testimony or evidence incriminating against the other.

It is not because society does not value truth as testified by someone 'in the know'. It is because society values more the importance of ensuring that a spouse should not in principle be permitted to draw on confidences exchanged though shared intimacy and whistle-blow against the other.

To allow otherwise would subvert that level of confidence and trust that must subsist between spouses in order to preserve family unity for the benefit of their children's well-being.

How is this trust to be nurtured if the other spouse can potentially turn witness against you for confidences shared or worse still, in less happy times, lodge a report of marital rape for your unwelcome sexual initiative?

It is not that protecting women from domestic violence is not important then. It is — but criminalisation of marital rape is so fraught with potential complexities and difficulties that it ought not to be seriously embarked upon without weighing and balancing competing considerations against.