Husbands will no longer be exempted from committing a rape offence under the Penal Code if several key proposals to amend rape-related laws by interest groups get the nod from the authorities and become law.

The joint proposal will be presented to the relevant ministries in a bid to convince lawmakers that heavier penalties alone will not deter rape - what is required are broader changes to the Penal Code, the Evidence Act, and the Criminal Procedure Code.

In a press conference today, representatives from the All Action Women's Society of Malaysia, Women Centre for Change, Women's Development Collective, Women's Aid Organisation, and the Bar Council Family Law Committee warned of the urgent need to amend the laws with regard to rape, particularly when only one in ten rape cases in the Federal Territory end up with a conviction.

"Merely creating harsher penalties will not suffice," said Women Centre for Change vice president Lalitha Menon.

Rather than prevent rape, such 'narrow' changes would only work in the reverse by discouraging rape cases from getting reported, in addition to putting up legal obstacles against conviction, she said.

"We have found that harsh penalties can curtail the report of rape, especially if the rapist is known to the victim," said Lalitha.

"Secondly, the courts tend to be extra-cautious when death penalties or severe sentences are involved," she added.

"Already, few rape cases are ever reported and even fewer reach the prosecution stage. And from these, much less end in conviction."

Widening definition

The proposals will, in addition to making marital rape an offence under the Penal Code, focus on widening the definition of 'rape' to include object penetration, eliminating requirements for additional testimony beyond just the victim's, allow for child evidence without the need for corroboration, and to restrict admission of the victim's past sexual history.

According to Lalitha, the rule of prudence under the Evidence Act - that corroboration be required for conviction - was created with the belief that women or children will lie about their assault. The groups propose that the need for additional corroboration be eliminated from the Evidence Act.

"Awam finds this 'fixing up' to happen very rarely, and is confident that prosecution will not bring such cases to court. You will (also) find that children do not lie about their rape or assault," she said.

The groups also want lawmakers to consider special circumstances where the burden of proving consent be reversed to fall on the accused. Under the proposals, those who pressure their victims to engage in sexual acts, through fear of force and other pressures, cannot claim that such acts received valid consent.

"In England in 1981, the courts asserted that...a distinction be made between consent, and submission," said Lalitha.

Cases where victims claim they were raped by police officers while under custody for example, should be given consideration that consent should not be the victim to prove, but rather the accused must show that he did obtain consent from someone under his custody or power, she said.

According to Lalitha, such presumption is not unusual, and can in fact be found all over the law. In cases of drug trafficking for example, someone in possession of large enough quantities of drug is deemed to be trafficking, unless the person can prove that they were mere carriers.

Repeat offences

On the issue of repeat offenders, the memorandum puts forward that penalties in this case should be increased for the second subsequent rape offense - from the existing 10 years' jail sentence, to 20 years.

They also note that penalties for aggravated rape - in cases of gang rape, where weapons are used, or where victims are pregnant, intoxicated, or drugged, for example - should also be increased to reflect the gravity of the offense.

In addition to legal alterations, the memorandum asks that a compensation body be set up to provide compensation to help survivors deal with post-rape trauma, or health issues which may arise, such as sexually-transmitted diseases.

The memorandum was created under a joint anti-rape task force of NGOs - Awam, WCC, WDC, Sisters in Islam, and PS the Children - set up in October 2001, following a consultation with the AG's chambers in April 2000 to discuss potential amendments to existing rape laws.

According to WDC executive director Maria Chin Abdullah, there is currently a gap between the comprehensive changes the memorandum is proposing and the kind of amendments the ministry want - which at the moment looks set on just imposing harsher penalties.

Instead, MPs should seriously consider broader changes to the law - such as a redefinition of rape, and compensation for victims - if violence against women remains a priority on the government's agenda, she added.

Consultation

Feedback from the government so far indicate that further consultation is required, said Awam legal officer Pushpa Menon.

"The AG's chambers have said they want to consult further with Islamic authorities on the issue of making marital rape an offence," said Pushpa, adding that their position nevertheless remains that rape within marriage still constitutes rape, regardless of religious affiliation.

"We hope the law minister and the AG's chambers will also get the drafters of the proposal involved when they begin drawing up amendments (to the rape-related laws)...we don't want the government to just pick what they want and drop (other proposals they don't like)," said WAO executive director Ivy Josiah.

"We hope that the consultative process under the Domestic Violence Act will be repeated, where (both government and NGO groups) went through item by item in the proposals," she said.

Awam vice president Judith Koh said the memorandum of proposed legal amendments will be presented to de facto Law Minister Rais Yatim, the Women and Family Development Ministry and the AG's Chambers, with a view that they be tabled during this current September parliamentary session.