Police should investigate the viral case of an alleged "stealthing" incident instead of referring it to the Selangor Islamic Religious Department (Jais), according to the victim's lawyer.
Lawyer Serene Lim said that although Section 375(c) of the Penal Code addresses rape, it does not provide a clear definition of "stealthing" – the practice of a man covertly removing or damaging a condom during intercourse, despite being aware that his partner only consented to protected sex.
"If you look at the Penal Code, there is something that says 'misconception'. You are giving a misconception by saying you are going to do this and that, to obtain consent.
"So in a way it is not genuine consent that is obtained, because consent is given based on a misconception.
"That is why it is rape in some countries," she told Malaysiakini today.
As Lim noted, there are ongoing discussions in certain countries, including the United Kingdom and Germany, to more clearly define consent in relation to rape and sexual assault.
This includes the concepts of conditional consent and affirmative consent.
Conditional consent is given specific to a particular sexual act, while affirmative consent is defined as obtaining an explicit agreement to a sexual act, instead of just assuming consent unless specifically told otherwise.
"In our case, we haven't (discussed definitions of consent). But then it shouldn't stop us from adopting that definition of consent," said Lim, adding that stealthing incidents have gone underreported in the country.
The case went viral last weekend after a copy of the victim's police report against a foreign national, which was lodged at the Kajang police station, leaked online.
Kajang police chief Ahmad Dzaffir Mohd Yussof, who confirmed receiving the report, said the case would be referred to Jais.
As the leaked report did not redact the victim's phone number and house address, Lim said, her client has been subjected to online harassment, as well as through phone calls and text messages on multiple chat applications.
"The harassment through her phone is insane, by now she must have gotten hundreds of them," she said, urging the public to stop sharing the police report.