The government is taking steps to redefine ‘rape’ under the Penal Code.

UNDER our criminal law today, the offence of “rape” is committed when a man engages in sexual intercourse with a woman without the latter’s consent. If the woman is underage (not yet 16), her consent is immaterial; it will still be an offence, called “statutory rape”.

The actus reus of the offence is “penile penetration” by the accused into the victim’s vagina. Full insertion of the offender’s sexual organ is not necessary, neither is ejaculation or orgasm. Penile penetration into any other orifice (such as the mouth or anus) of the victim is not rape. Penetration of the victim’s vagina by any other organ (such as a finger) of the accused or by any other object (such as a stick of wood or vibrator)  is not rape.

This archaic, rigid and technical element of the offence, requiring penile penetration into the victim’s vagina, is highlighted once again in the recent decision of the Court of Appeal, sitting in Kuching, Sarawak, early last month — Bunya Anak Jalong v Public Prosecutor (2015). The full text of the judgment is available online at http://www.malaysianlaw.my/criminal/judgments/bunya-anak-jalong-v-the-pu....

In that case, the court held that the insertion of the offender’s finger into the victim’s vagina cannot constitute rape. Although the trial judge (at the Sessions Court) was satisfied that there was penile penetration and had duly found the accused guilty, and this verdict was subsequently upheld by the High Court (sitting as a Court of Appeal), the Court of Appeal, nevertheless, held that the victim (who testified at the trial) was not a credible witness, that the accused had raised a reasonable doubt and, therefore, the guilty verdict was unsafe. The Court of Appeal allowed the appeal, quashed the conviction, and acquitted and discharged the accused.

The decision upset many quarters because the victim had, in the meanwhile, given birth to a child, and DNA tests revealed that the accused was the biological father of the baby.

The defence’s story (as contained in the judgment of the trial judge and, later, reproduced in the judgment of the Court of Appeal) is as follows: “The defence relied heavily on what purportedly transpired at the toilet of YMCA Resort between the accused and PW4 (the victim). The accused had denied any sexual intercourse with PW4, but admitted of masturbation by PW4 on the accused on 12.06.2011 in the toilet of YMCA Resort. The accused ejaculated semen, smearing PW4’s fingers and his own finger, which later were inserted into PW4’s vagina.”

This was the defence story that both the trial judge (at the Sessions Court) and the High Court judge (on appeal from the Sessions Court) had rejected. But, it was accepted by the three judges of the Court of Appeal (Datuk Abdul Wahab Patail, Datuk Linton Albert and Datuk Seri Zakaria Sam) as sufficient to raise a reasonable doubt of the prosecution’s case as to warrant the conviction to be set aside.

Under our judicial system, whenever doubt has been successfully raised by the accused in his defence, the benefit of that doubt must be given to him. Whenever an Appeals Court arrives at a conclusion that there is doubt, it will invariably hold that it is “not safe” to uphold the conviction.

It is not the objective of this commentary to analyse the reasons for the acquittal by the Court of Appeal. My sole purpose is to highlight the fact that under the Penal Code, there is no rape if the court is not satisfied that there has been a penile penetration of the victim’s vagina by the accused.

Is the law the same in other jurisdictions?

Many common-law countries still retain this old concept of rape (requiring  the element of penile penetration), although they have lately expanded the “target” of the penetration, not just the vagina of the victim, but any other orifice as well. For example, under the Sexual Offences Act 2003, in force in England and Wales, rape is committed when  a person “intentionally penetrates the vagina, anus or mouth of another person with his penis” without the other person’s consent.

In Northern Ireland, where the common-law offence of rape was abolished by the Sexual Offences (North Ireland) (Order 2008), its updated definition of rape is similar to that contained in the 2003 Act of England in Wales. The situation in Scotland, under Sexual Offences (Scotland) Act 2009, is also practically the same.

In The Prosecutor v Anto Furundzija (1998), the International Criminal Tribunal for the former Yugoslavia (ICTY) held that fellatio (oral sex) is included in the definition of “rape”. Finding the accused guilty of torture as well as rape, the Trial Chamber of ICTY explained that under international criminal law, the offence of rape comprises the following elements: “The sexual penetration, however slight, either of the vagina or anus of the victim by the penis of the perpetrator, or any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator, where such penetration is effected by coercion or force or threat of force against the victim or a third person.” (See http://www.icty.org/sid/7609).

In January 2012, the United States attorney-general announced a revised definition of rape as follows: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” (See http://www.justice.gov/opa/blog/updated-definition-rape).

In jurisdictions where the offence of rape must contain the element of penile penetration, if the offender uses other body parts or objects on his victim, the offence is called by a different name, such as “sexual assault” or “sexual battery”.

In September 2013, a man in Johannesburg, South Africa, named Mathys van Zyl, took a 3-year-old girl into a bathroom, undressed her and inserted his fingers into her vagina. At his trial in October last year, where he was convicted of rape, his lawyer argued in mitigation that his client had used a finger, making the offence not serious enough to warrant a life sentence for the offence of rape involving a minor. This case shows that “finger rape” has been recognised in some jurisdictions. (see http://www.iol.co.za/news/crime-courts/finger-rape-of-girl-not-as-seriou...).

On May 16, Women, Family and Community Development Minister Datuk Rohani Abdul Karim was quoted as saying her ministry had begun discussions with the Health Ministry to propose changes in the definition of “rape” under the Penal Code “to include the insertion of any object or a part of the body not being the penis into a vagina”. She added that her ministry would expedite the tabling of the proposed amendments to ensure greater protection for young girls, such as that found in the recent case in Sarawak.

Let us wait and see how long it takes before the new rape law makes its way to Parliament.

The writer formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, academia

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