What is Rape?
In Malaysia, under Section 375 of the Penal Code, rape is legally defined as a man’s sexual intercourse with a woman who is not his wife and without her consent.
What is Consent?
There are 5 elements to consent
- Freely given – without coercion, with the individual fully conscious and alert (i.e. not unconscious or under the influence of any mind-altering substance)
- Informed – consent was given based on relevant information and mutual understanding of both parties
- Enthusiastic – consent consists of an ‘active yes’, not silence, omission to answer or hesitant agreement
- Specific – consent is action and time-specific. Saying yes to one act now does not mean a yes to a subsequent different act or the same act occurring at a later time.
- Reversible – consent can be revoked at any time even after the act that was initially consented to had begun
It is not consent in the following situations:
- When she is below 16 years old.
- When she is threatened, pressured, coerced, bullied, manipulated, deceived into giving consent. This can include the context whereby the perpetrator uses his position of authority of trust to coerce consent (Section 375(f) of the Penal Code).
- When she is not conscious or intoxicated – i.e. asleep, unconscious, drunk, drugged.
- When she lacks the mental capacity to understand, comprehend and communicate consent either due to mental illness or cognitive impairments.
Rape Myths = Rape Culture
“Why you go out alone so late/wear dress so short/get drunk alone with this guy, no wonder you get raped lah.”
- This myth suggests that men can be excused for their behaviour because women provoke or cause rape to happen by doing the above. This myth detracts from the importance of consent because it implies that she is inviting rape based on her conduct instead of placing the blame on the rapist. .
“Aiyo, what to do? Men are forever men.”
- By reproducing the traditional sexual script that men have uncontrollable sexual urges, this myth excuses men for their behaviour and normalises violence.
“Don’t go into dark alleys ah. If not, strangers will jump out and rape you.”
- This myth makes rape seem like an extraordinary event and rapists extraordinary monsters when rape can occur in ordinary, everyday situations for many survivors and their perpetrators are likely known to them. It suggests that we can assume if it was rape just by circumstances and survivor-perpetrator relationship.
“When rape happens, the victim for sure got physical injuries one.”
- This myth discounts all other cases of rape (including date rape), sexual assault and boundary violations where injuries sustained by the survivor are not visible. It suggests that we can assume whether rape really happened by the survivor’s physical state.
“Eh, girls like it when they get raped. They only pretend to resist lah.”
- This myth perpetuates gendered sexual scripts in which women are portrayed as sexually-pleasing gatekeepers and men as sexually-aggressive initiators. On one hand, it nullifies women’s expressions of consent and non-consent. On the other hand, it gives rapists permission to keep violating boundaries until they attain their sexual pleasure.
- This myth also ignores the realities of rape survivors’ experiences whereby most of them freeze out of fear and the instinctive need to protect themselves from further injuries; and that perpetrators use intimidation and manipulation to control them. Survivors who ‘do not resist enough’ are thus more likely to be disbelieved.
“Prostitutes would never get raped lah, since they’re selling sex.”
- Sex workers are human too and have the right to give and withdraw consent before and during any sexual activity.
“Impossible lah, for rape to happen between husband and wife/boyfriend and girlfriend.”
- Consent needs to be given and respected regardless of degree or duration of relationship intimacy.
“When women say they got raped, they’re for sure lying one. Coz they want attention/regret having sex with someone.”
- False allegations do exist and should be acknowledged, but rates are low. Even for the commonly cited 5% in international studies, this statistic needs to be looked at critically, due to differences in report classification across countries and reasons that lead to reports being labelled false such as insufficient evidence to support the report, and the police’s (possibly problematic) decision on survivor’s lack of credibility.
- By perpetuating longstanding stereotypes about women’s lack of trustworthiness in the criminal justice system, this myth makes it more difficult for survivors to come forward and speak up. This worsens rape underreporting that is already pervasive (e.g. in 2013, only 2 out of 10 rape cases are reported in Malaysia).
“Why rape happen? Because tak boleh control nafsu.”
- Rape is not a spontaneous act of passion for the purpose of sexual gratification – it is a premeditated act of violence that is motivated by power and control.
“Since when men get raped? Men are only rapists lah.”
- Although survivors who are men and boys are fewer, it does not mean that the effects are less devastating. Any man can be raped regardless of size, appearance, physical strength or sexual orientation.
- In addition, male survivors face more difficulty in speaking up due to shame, guilt or fear of judgment for not being able to ‘uphold their manhood’ by being raped. They are also more likely to be disbelieved and have their rape experiences dismissed.
“The person must have enjoyed being raped. Got wet some more.”
- Sexual arousal, including vaginal secretions, erection or ejaculation, are physiological responses that can occur due to extreme stress or mere physical contact. It does not mean that the individual wanted or enjoyed the violence. Some rapists use this to confuse survivors to control them and discourage reporting.
What Are the Effects of Rape?
- Injuries to the vagina, urethra or anus
- Sleeping problems and recurrent nightmares
- Unwanted pregnancy or sexually-transmitted infections
- Gastrointestinal complications
- Conversion disorders (functional neurological symptom disorders)
- Risk of chronic diseases (such as hypertension or heart diseases) due to chronic stress
- Reproductive/sexual functioning
- Pain during intercourse (dyspareunia)
- Menstrual irregularities
- Chronic pelvic pain
- Inhibited arousal and desire
- Shame, embarrassment
- Self-blame, guilt and humiliation
- Emotional numbness
- Reduced self-esteem
- Serious mental health issues such as post-traumatic stress disorder (PTSD); anxiety; depression; self-harm; suicidal ideation; attempted or completed suicide; dysfunctional coping behaviours such as dependence on alcohol or medications
- Declined productivity and reduced earnings due to time off for medical checkups/counselling sessions/court proceedings and coping with trauma
What Are the Rape Laws in Malaysia?
Rape (Section 375 of the Penal Code)
- Rape is defined as a man’s sexual intercourse (i.e. penetration) with a woman against her will or without her consent.
- In circumstances when the woman’s consent was given, sexual intercourse constitutes rape 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
- 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
- when the consent is obtained via the man’s position of authority over her, professional relationship, or other relationship of trust
- With or without consent, when a girl is below 16 years old, the sexual intercourse constitutes as rape (statutory rape).
Punishment for rape (Section 376 of the Penal Code)
- Those who committed rape shall be punished with imprisonment for a term that may extend to 20 years with whipping.
- Those who committed rape under the following circumstances shall be punished with imprisonment for a term of 10 to 30 years with whipping:
- causes hurt to her or to any other person at the time of, immediately before or after rape
- puts her in fear of death or hurt to herself or any other person at the time of, immediately before or after rape
- commit rape in the presence of another person
- rape a girl under 16 years old without her consent
- rape a girl under 12 years old, with or without her consent
- commit rape with a woman’s consent that was obtained by using his position of authority over her, his professional relationship or other relationship of trust in relation to her
- when she was pregnant
- when she becomes insane due to rape
- when she commits suicide due to rape
- when he is aware that he has HIV/AIDS or any other sexually-transmitted infection
- when he is aware of the woman’s mental disability, emotional disorder or physical handicap at the time of raping her
- Those who committed rape under the circumstance that he is not permitted to marry her under the law, religion or custom, shall be punished with imprisonment for a term from 8 to 30 years with whipping of not less than 10 strokes.
- Capital punishment or imprisonment for a term of 15 to 30 years shall be imposed on those who committed or attempted to commit rape that causes the woman’s death.
Gang Rape (Section 375B of the Penal Code)
- Gang rape is defined as rape of a woman by one of more in a group of persons acting in furtherance of their common intention.
- Gang rape is punishable with imprisonment for a term from 10 to 30 years.
Does Malaysia recognise marital rape?
- Unfortunately, no. Under Section 375 of the Penal Code, sexual intercourse by a husband with his wife without her consent does not constitute as rape unless she is judicially separated or divorced from him, or has obtained an injunction restraining him from having sexual intercourse with her. Thus, under current Malaysian laws, consent to marriage means unconditional consent to sexual intercourse.
- Nevertheless, if the husband causes hurt or fear of death or hurt to his wife in order to have sexual intercourse with her, he shall be punished with imprisonment for a term up to 5 years (Section 375A of the Penal Code).
Does a woman have to marry her rapist?
- No one should be forced to marry their rapists. Pressure to marry, especially in cases that involve unwanted pregnancies, largely arises due to the patriarchal stigma that a woman loses her honour and purpose in life if raped and that marriage is the only solution to this. In some cases, rapists also use marriage to evade prosecution. Marriage does not protect rape survivors; addressing their needs (be it through legal, mental health or social service assistance) do.
What about rape involving penetration of the anus or mouth?
- Malaysian rape laws only recognise unconsented penile-vaginal intercourse. Unconsented penile penetration into the anus or mouth is a form of sexual assault, and shall be charged under Section 377C of the Penal Code with imprisonment for a term of 5 to 20 years with whipping.
What about rape using an object or the finger – is this recognised in Malaysia?
- Under Malaysian law, digital rape would be a form of sexual assault , as it is not within the penile-vaginal definition. According to Section 377CA of the Penal Code, “any person who has sexual connection with another person by the introduction of any object or any part of the body (except the penis) into the vagina or anus of the other person without the other person’s consent” shall be punished with imprisonment between 5 and 30 years with whipping. This Section excludes contexts where the object is introduced into the vagina or anus for medical or law enforcement purposes.
What about incest?
- Under Malaysian law, Section 376A and 376B of the Penal Code covers incest and its punishment. Incest is defined as sexual intercourse with another person to whom s/he cannot marry under the law, religion or custom. Incest shall be punishable with imprisonment from 10 to 30 years with whipping.
What Can I Do If Someone Raped Me?
- Do not wash, clean, wipe, shower, tamper or change the clothes that you wore during the incident. This will destroy important evidence that could be extracted from the violation.
- Tell someone:
- Confide in someone whom you trust (parents, friends, etc).
- Reach out to women’s rights NGOs such as AWAM to discuss your case. AWAM provides free legal information and counselling services.
- Get someone whom you trust to help you – be it to accompany you to the police station to lodge a police report, government hospital for a medical examination, or women’s rights NGOs such as AWAM for counselling and legal assistance.
- Lodge a police report at the nearest police station as soon as possible. If the report is made after 72 hours of the violation, it may be considered a ‘cold case’ due to the disappearance / deterioration of evidence.
- Your report should contain the following details:
- When did the incident occur?
- Where did the incident occur?
- What and how did the incident happen?
- Who was involved in the incident?
- Any physical, psychological or emotional impact(s)?
- Why is the report being lodged – do you seek for further action to be taken (action report) or do you only intend for your case to be documented (case report)?
- You can contact AWAM at 016-2374221 or 016-2284221 for support and guidance on drafting the police report.
- You should receive a copy of the police report lodged.
- An Investigating Officer (IO) in the Sexual, Women and Child Investigations (D11) unit (Bahagian D11: Siasatan Seksual, Wanita dan Kanak-Kanak) at the District Police Station where you lodged your report will be assigned to your case. The IO will be in charge of taking you to the government hospital for medical examinations, recording statements and / or surveying the area / venue where the alleged rape occurred to collect evidence.
- The IO will submit the investigation papers to the Deputy Public Prosecutor (DPP), who will decide whether to charge the alleged perpetrator for the crime they are accused of. The alleged perpetrator can be held in remand whilst investigations take place. If there is sufficient evidence, they will be charged in court.
- Alternatively, go straight to the nearest government hospital.
- Go to the registry counter at the Emergency Department.
- You will be taken to a private room called the One Stop Crisis Centre (OSCC) for medical examination and treatment. You will be asked to provide consent to these procedures by completing a form.
- There is a police counter there where you can lodge a police report.
- Once the police report is lodged, a detailed medical examination will be conducted to gather evidence of rape in the presence of a police officer. The collected evidence will be given to the police officer for investigations. Other procedures that follow from assignment of an IO to your case will apply here.
- If you do not wish to lodge a police report, physical examination and treatment of your injuries can still be conducted. Any other follow-up procedures will be done only with your consent.
- With your consent, you can be referred to NGOs or mental health specialists for counselling.
How Do I Support Rape Survivors?
- Believe in the survivor’s story. Do not ask overly intrusive or personal questions, as they may feel judged, discriminated against or disbelieved. Reassure them that it is not their fault.
- Listen to the survivor. Bear in mind that the range of feelings that the survivor experiences and expresses is directed at the perpetrator and what happened, and not at you.
- If the survivor has not talked to you about what happened, do not force or compel them to do so. Respectfully let them know that you are there if and when they would like to talk.
- Be patient. Recognise that healing takes time with advances and setbacks, and can differ from one survivor to another.
- Remain calm. Expressing frustration and outrage may elicit burden, distress and discomfort within the survivor.
- Ask before offering any physical support (such as a hug). This can help re-establish the survivor’s sense of trust, security and safety.
- Maintain confidentiality. Let the survivor decide who to share with or how much to share about the incident.
- Empower the survivor by respecting their decisions and wishes. Accompany them if they seek legal, medical and mental health support. Instead of telling them what to do, share with them the redress mechanisms that you know about so that they have options and can decide what to do next.
- Make sure to take care of yourself. As you support the survivor, it is equally crucial to process, receive support from others and address your emotions.