Excerpts from The Malay Ideals (2002)If serious crimes were meted out with stricter and harsher punishments, we are confident that their numbers would reduce dramatically. In Malaysia, serious sexual offences such as rape is strikingly on the increase. In 1985 there were 522 reported cases of rape and by 1996 it had more than doubled to 1071.
[1],
[2] A later study announced that 2.4 cases were reported daily in 1993 and the figure had risen to 4.1 in 1998. For every reported case there were 10 others unreported. i.e. every 1.7 hours, a person is raped in Malaysia.
[3] Perpetrators of such heinous crime are even willing to kill their victims
[4] to avoid identification and indictment.
[5] Since June 1995 up until June 2001, 70 teens had been raped and killed.
[6] School children within school compounds have been targeted.
[7] Young children are not safe either.
[8] Even the elderly are not protected from such terrible ordeal. Rape is even committed by university students
[9] and police officers.
[10] Incest is also increasing. Fathers rape their own children, brothers rape their own sisters. These rapists feel no remorse for their action.
[11]Under the Penal Code Section 376, offenders for rape can be sentenced to a minimum of 5 years of imprisonment and a maximum of 20 years. They are also liable to be fined or whipped up to 6 strokes of the rattan. The law also stipulates under section 289 of the Criminal Procedure Code that an offender above the age of 50 years be exempted from being caned in consideration of his physical condition.
[12] The punishment for rape does not seem to deter criminals. The incidence of rape has not reduced in number. Regrettably it is on the increase.
[13]The fear of being discovered or detained is a big factor for a perpetrator to abandon his intention of a criminal act. If the criminal thinks that he will never be identified and get caught ¾ or very unlikely that he will ever be ¾ he will commit the act. If he thinks otherwise, he would not proceed. In other words, the perception of how effective the authority is at discovering the act, identifying the criminal, apprehending and detaining him, is a key factor that determines whether the crime is acted upon. The fear of being apprehended is a deterrent in itself.
The harshest punishment should also be imposed because this too is a source of deterrent in itself. It is in our opinion that in the case of rape, the assailant if found guilty and convicted, ought to receive the capital punishment. The logic for advocating this punishment is taken from the Shari'ah in accordance with hadiths advocating it for adulterers.
[14] Although some may argue that the punishment of death to adulterers is not mentioned in the Qur'an and may even contradict the Holy Book
[15] ¾ if we took the prescription of the hadith as true for the sake of argument, we shall see the relevance for advocating the death penalty for rape. It is known that in the case of adultery, according to stringent Islamic law as mentioned above, the act is punishable by death.
[16] A person who willingly submits to having extramarital sexual relationship and dishonouring the marriage is condemned to capital punishment. In rape, the victim is neither willing and is forced against her own wish. Her life was also under threat. In most cases, the victim will suffer emotional and psychological disturbance and her sexual life will be affected considerably even if not throughout her entire life. Because of the inhumane nature of rape, the threat on the victim's life, the dire consequences it imposed upon the victim, and the nature of the enforced sexual assault, the form of punishment should be equal or more severe than the punishment for adultery. Therefore capital punishment is advocated for the case similar to rape.
[17] However, statutory rape is a different matter. Statutory rape implies consented sexual intercourse of a minor with an adult. The classification of statutory rape might have to be phased out if a law that is to be more attuned to the Islamic Shari'ah is to be applied. This is because according to Islam, sex before marriage is prohibited. Statutory rape is still classified under adultery or fornication.
Even if we did not apply the death sentence upon a rapist, a harsh enough sentence such as the hundred lashes
[18] ought to be instituted. In the case of incest, death sentence, is reasonable.
[19] Currently incest is charged under rape but the government is amending the Penal Code in order to allow for a stiffer (minimum 6 years instead of 5 years as for rape) punishment in the case of incest and to categorise it as a separate crime to rape.
[20] Incest is worse than any case of rape because the perpetrator is a part of the family where the girls and women depend upon to confer protection. But the very people they depend upon now victimise them. The psychological trauma must have been unbearable. A study have shown that in nearly half the cases of incest, the perpetrator is the victim's own natural father.
[21],
[22] The whole concept and nature of the family breaks down. There is no worse a sexual crime than incest. Worse still, the vast majority involve Malays.
[23]It should be noted that before the Hadd punishment can be imposed on the accused, there is a need to ensure that there is only the barest level of doubt concerning the culpability of the assailant. If possible, no doubt at all of course this is onerous to achieve. Nevertheless, Islam requires that four witnesses are brought to dispel any doubt because to impose such a punitive measure requires that the burden of proof lies at the higher level of "certainty". If there is any element of doubt beyond the barest minimum, then a less harsh a punishment should be instituted in place of the Hadd punishment.
In the case of fornication, even if the culpability of a fornicator is never doubted, at times it is better to be merciful. The Holy Prophet, in the few instances that such cases were brought to his attention by the perpetrators themselves, he (the Prophet) would prefer not to hear their case at all. It could be inferred from this treatment that the Prophet had wished the perpetrators to repent, and to cover their own shame. He time again, turned them away when they came to him for judgment. However upon their unrelenting insistence, the Prophet passed on the Hadd punishment.
[24] During the time of the Prophet, not a single case of adultery or fornication was established by the use of four witnesses. All were based on confessions.
In the case of rape, a lesser form of punishment may be necessary because there is hardly a case whereby the victim can bring in four witnesses to testify to the crime. In the case of rape, this requirement is almost an impossibility ¾ even so in the cases of fornication. These acts are virtually never acted upon in full view of the public. If however there are other means of ascertaining the crime to the higher requirement of "certainty" or does not create doubt beyond the "barest minimum of doubt" such evidence as a medical examination that verifies the presence of the assailant's semen in the coital passage coupled with the evidence of forced entry (in rape) then the Hadd punishment may be instituted in place of a confession on the part of the criminal or the presence of four witnesses. Circumstantial evidence should be allowed and so is forensics.
[25] However, if the criminal act can only be ascertained to the level of "beyond reasonable doubt" and not to the higher level of "certainty", then, a hundred lashes seem desirable as a punishment for the crime of rape as a deterrent under Ta'azir.
[26]Footnotes:[1] Statistics from The Royal Malaysian Police, Sourced out from 'Shame, Secrecy and Silence : Study of Rape in Penang', Coordinated and Edited by Rohana Ariffin; Penang : The Women's Crisis Centre, Penang 1997 p 9.
[2] In the year 2000, the number of rape cases had increased to 1,210 (3.3 cases per day) and by 2001, the figure stood at 1,354 (3.7 cases per day) ¾ The Star 4 February 2002 "Cops : One murder, three rape cases reported daily".
[3] The Star 8 December 1999 "Rape Cases on the Rise, Says Study".
[4] e.g. the case of Noor Suzaily Mukhtar, a lady engineer who was raped, sodomised and murdered on a bus on October 7th 2000. School girls Farra Deeba Rustam and Nurul Hanis Kamil, also met the same fate on February 13th and July 3rd 2001 respectively.
[5] Reported number of rape victims in 1995: Malays (645), Chinese (139), Indians (97) Others (124) 'Table 3 : Rape Victim at National Level According to Race (1995)' The Royal Malaysian Police; Sourced out from 'Shame, Secrecy and Silence : Study of Rape in Penang' p 11.
[6] The Star 17 August 2001 "70 Teens Raped and Killed Since 1995".
[7] Even school children are not safe from rape, rape within school compounds Sunday Star 12 February 1995 "Rape Report Leaves Parents Very Worried".
[8] Young girls are lured, kidnapped, gulled and forced into prostitution.
[9] New Straits Times 13 April 2001 "Nine Students Held Over Gang-Rape" and The Star 27 April 2001 "USM Undergrad Charged with Raping Schoolgirl".
[10] The Star 28 March 2002 "Three More Cops Held for Rape".
[11] There is no longer the fear of God in the human heart. There is no longer taqwa (God consciousness). Faith, is deficient. Thus such crimes are prevalent.
[12] 'Shame, Secrecy and Silence : Study of Rape in Penang' p 114.
[13] Ibid. p 9.
[14] "Sahih Muslim Hadith (Abridged)" "Allah's Apostle (peace be upon him) said to Ma'iz ibn Malik: Is it true what has reached me about you? He said: What has reached you about me? He said: It has reached me that you have committed (adultery) with the slave girl of so and so? He said: Yes. He (the narrator) said: He testified four times. He (the Prophet) then made pronouncement about him and he was stoned (to death)."
[15] Holy Qur'an 24:2 "The woman and the man guilty of adultery or fornication flog each of them with a hundred stripes: let not compassion move you in their case in a matter prescribed by Allah if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment."
[16] Abdur Rahman I. Doi "Shari'ah: The Islamic Law" London : Ta Ha Publishers 1984 pp 244-246.
[17] Some advocate crucifixion as punishment. Mingguan Malaysia 27 June 1997 "Perogol Dihukum Mati" (Rapist Punished by Death) "Rape falls under the category of Hudud or highway robbery and punishable by execution or crucifixion, of the cutting off of hands and feet from opposite sides or exile from the land: Crucifixion is considered correct".
[18] See note above (24:2).
[19] The Royal Malaysian Police suggested the death penalty be imposed upon those who commit incest on victims below 12 years old "Perogol Dihukum Mati" (Rapist Punished by Death) op. cit.
[20] Utusan Malaysia, 26 July 2001 "Kanun Keseksaan Dipinda" (Penal Code Amended).
[21] "A study reported 48.8 per cent of incest are committed by natural fathers, 24.4 per cent step fathers" Mingguan Malaysia 27 July 1997 "Cadangan Polis Memang Wajar" (Police Suggestion is Fitting).
[22] Another study of reported cases of incest showed that in 1995 there had been (173 cases) of which incest committed by natural father was (62 cases) or [35.8 per cent], 1996 (200) (father - 65) [32.5 per cent], 1997 January-April (56) (father - 20) [35.7 per cent]. The study classified incest as rape by natural fathers, uncles, natural brothers, grandfathers, close relatives, step fathers, step brothers, brothers-in-law and distant relatives Mingguan Malaysia 27 July 1997 "Jumlah Kes Merogol Keluarga Semakin Meningkat" (Total Rape Cases on the Increase).
[23] "Cadangan Polis Memang Wajar" (Police Suggestion is Fitting) op. cit.
[24] "Sahih Muslim Hadith (Abridged)" "A person belonging to the clan of Aslam, who was called Ma'iz ibn Malik, came to Allah's Messenger (peace be upon him) and said: I have committed an immoral crime (adultery), so inflict punishment upon me. Allah's Apostle (peace be upon him) turned him away again and again. He then asked his people (about the state of his mind). They said: We do not know of any ailment of his except that he has committed some crime and he thinks that he will not be able to relieve himself of its burden unless the Hadd is imposed upon him. He (Ma'iz) came back to Allah's Apostle (peace be upon him) who commanded us to stone him. We took him to the Baqi' al-Gharqad (the graveyard of Medina). We neither tied him nor dug any ditch for him. We attacked him with bones, clods and pebbles. He ran away and we ran after him until he reached the stony ground (al-Harrah) and stopped there and we stoned him with the heavy stones of the Harrah until he became motionless (he died). He (the Holy Prophet) then addressed (us) in the evening saying: Whenever we set forth on an expedition in the cause of Allah, some of those connected with us shrieked (under the pressure of sexual lust) like the bleating of a billy-goat. It is essential that if a person having committed such a deed is brought to me, I should punish him. He neither begged forgiveness for him nor cursed him."
[25] Holy Qur'an 12:26 He said: "It was she that sought to seduce me from my (true) self." And one of her household saw (this) and bore witness (thus) "If it be that his shirt is rent from the front then is her tale true and he is a liar!
[26] See note above on Islamic Jurisprudence for an explanation on Ta'azir.
