Saturday, August 2, 2008

Rape Case: Consent of ‘Mental Disable’ Person

Salam,

I received an email asking regarding one rape case, where the 'victim' is at the age of 21 years old but 'not so smart person' (or as what has been described to me) however not to the extent of mental disorder or retarded. A police report has been lodged and found out of from the investigation that the 'victim' actually gave consent to sexual intercourse. The police did not take any action against the 'accused' person but rather merely suggesting that the 'victim' to be taken to some kind of rehabilitation house. The email sender does not satisfy.

Before I proceed further, I wish to bring the readers' attention to the relevant section under Malaysian Penal Code relating rape offences, which reads as follows;


PENAL CODE (Revised 1997) ACT 574

CHAPTER XVI

OF OFFENCES AFFECTING THE HUMAN BODY

Of Rape

375. Rape.

A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:

(a) against her will;

(b) without her consent;

(c) with her consent, when her consent has been obtained by putting her in fear of death or hurt to herself or any other person, or obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception.

(d) with her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent.

(e) with her consent, when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent.

(f) with her consent, when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her;

(g) with or without her consent, when she is under sixteen years of age.

Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception - Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognised in the Federation as valid, is not rape.

Explanation 1 - A woman-

(a) living separately from her husband under a decree of judicial separation or a decree nisi not made absolute; or

(b) who has obtained an injunction restraining her husband from having sexual intercourse with her,

shall be deemed not to be his wife for the purposes of this section.

Explanation 2 - A Muslim woman living separately from her husband during the period of 'iddah, which shall be calculated in accordance with Hukum Syara', shall be deemed not to be his wife for the purposes of this section.

My comment: -

The issue in this case is whether the consent of the 'victim' can be regarded as valid. Under plain understanding of the case, I would say that consent might have been given at the material time. Yes, we may on various ground challenge the consent. However, Malaysian law (as per my humble opinion, and I welcome other opinion) does not consider a 21 years old girl though how 'not so smart' she is not being able to give a valid consent. Her consent does not fall within any of the exceptions above. So most probably the case would not stand in court of law.

Alternative:-

As an alternative to the penal code (civil law), the family member of the 'victim' may consider bringing this case to syariah court for illicit sexual intercourse, should the family member manage to establish that there was sexual intercourse taken place. However, the 'victim' if upon establishment of fact in syariah court validly gave consent she then would also liable for punishment under syariah law.

Regards,

Kamarul Irzuan Bin Hj Busu Piah

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