‘An eye for an eye’ law will not prevent rape

MALAYSIA’s laws on rape are more than adequate, said a lawyer who has handled gang rape cases.

Compared to many countries, Malaysia has one of the heaviest penalties for rape, which includes whipping and up to 20 years of imprisonment.

The Malaysian Penal Code also has provisions for aggravated rape and incestuous rape, which carries a penalty of up to 30 years of imprisonment.

Yet, despite such detailed and stringent laws, rape in Malaysia happens again and again, in the most heinous ways – the latest being that of the teenager who was raped more than 30 times by more than 10 to 15 men in a village in Kelantan – prompting calls for rape laws to be tightened and penalties made heavier. Some have even started championing the death penalty for rape.

But, is this the answer to reduce rape statistics, or to stop rapists from striking again?

Amer Hamzah, a human rights lawyer, who has taken up a few gang rape cases, said that we can have the heaviest of penalties for rape, yet it will not prevent the crime from happening again.

“When a crime is committed, the perpetrator does not think about the law, he only hopes he will get away with the crime. Having heavier penalties is not the answer as laws do not prevent such crimes from happening,” said Amer, who is against capital punishment for any crime, including rape.

Amer said in gang rape cases, the defendants will have a common defence but each one will also have their own defence, such as their individual alibis, or claim being a victim of mistaken identity.

In gang rape, every one accused will be charged and tried individually regardless of their role in the crime, and not as a gang.

In the case of those high on drugs while committing rape, it is possible that a lesser penalty will be meted out.  Amer said that being high on drugs can be used as a defence.

“The main thing is, the judge has to prove that penetration took place. If an adult is the victim, then the accused would try to prove that there was consent (by inferring to the circumstances) but in cases of underage victims, there cannot be consent, even if she had agreed to it,” said Amer.

Amer said that in cases where victims are underage, the question of consent does not arise.

This is because even if the underage victim has consented, under the law, it is still rape.

Amer also said that although public emotions may be running high after rape cases are publicised, the judge is not allowed to empathise with the victim but must decide based on the evidence presented in court.

If death has occurred, then the accused will be charged with murder as well. Only upon being found guilty can the capital punishment be considered with reference to the penal code.

Sadly, what happens to the victims after judgment and sentencing is passed is unclear. In his experience, Amer cannot remember any judge recommending help for the victims.

Any assistance would fall to the welfare officers, whom Amer believes should provide counselling to help the victim recover psychologically and mentally.

What goes on in the minds of those who commit gang rape? That is for psychologists and criminologists to answer.

But Amer said rapes continue to happen due to a host of other factors, including education and lack of guidance.

In the end, it is important that men, women, children and youths are educated on the rights of others, and to respect others. For, an eye for an eye, is never the answer to rape.