Oral sex: Easy to allege, hard to prove

MCA deputy president Dr Chua Soi Lek is back in the headlines for the wrong reasons, as police open investigations against him for alleged involvement in oral sex.

If charged under section 377A of the Penal Code and found guilty, he would be liable to a maximum jail term of 20 years and mandatory whipping.

Statistics from the Attorney-General’s Chambers show that such allegations and the number of people charged have been increasing over the years. The conviction rate, however, has been low.

One reason is the difficulty in proving an ‘offence’ where oral sex is consensual. For this reason, countries like Singapore are studying the possibility of decriminalising oral sex between man and woman.

Criminal lawyer Baljit Singh Sidhu, when contacted, said the offence is "easy to allege but difficult to prosecute".

Baljit, who is also a law lecturer, said the prosecution has to prove three elements in such cases:

• That it is against the order of nature

• That the accused performed the act voluntarily and the victim was forced to do it, and

• That there was penetration.

“If you look at Malaysian cases, there has not been much success in achieving committal. The reason is because sometimes the victim does not want to come forward. And if he or she does, it can be proven that the act was consensual rather than forced," he explained.

Baljit was also asked to comment on the probe involving Chua (left) , whose liaison had been secretly recorded and first circulated as a DVD in late 2007. The tape has since resurfaced.

The lawyer said that, to prove the case, it will be important for Chua's alleged partner to give testimony to adduce evidence that she had participated in the act.

Citing the case of former Penang magistrate Rungit Singh, Baljit said the presiding judge had failed to find corroborative evidence.

Justice Abdul Hamid Embong, now a Court of Appeal judge, had said in acquitting Rungit: “The court has, at all time, to remind itself that it is not safe to convict a person charged, especially with a sexual offence without any corroborative evidence.”

Cases that succeeded

Where the prosecution has managed to secure a conviction, it has usually been because the accused had also been charged with crimes like rape.

In 2007, serial rapist and molester, Ismail Shah Abdul Wahab, was sentenced to a total of 166 years - or concurrent jail terms of 70 years - and 34 strokes of the rotan for rape, sodomy and forcing his victims to perform oral sex.

Another case involved a former headmaster of a religious school. Mohd Sharif Musa, 47, was sentenced to six years' jail for forcing an 18-year-old male student to perform oral sex.

Last year in Klang, Ayasamy was sentenced to eight years’ jail for forcing his victim to perform oral sex. The accused was also been convicted of carnal intercourse, and of robbing the victim.

Last April, unemployed Mohd Sahrizal Suhaili was sentenced to 15 years’ jail and 10 strokes of the rotan for abducting a Universiti Malaya Sabah student, raping her and forcing her to have unnatural sex.