Rape law in Malaysia : an analytical and correctional study from shari'ah perspective

Abstract

Rape is a violent and heinous crime against women. Those who commit it will be punished according to the Malaysia’s civil criminal law, specifically through section 375, Malaysia Penal Code. It is an illegal sexual intercourse between a man and a woman without consent and against her will. Different types of rape such as statutory, non-statutory, incestuous and gang rape are prescribed with different punishments based on the seriousness of the crime. The government’s effort to seriously curb the number of rape cases is clearly seen by strengthening and amending the law in 2013. However, based on statistics given by Royal Malaysian Police (PDRM), rape cases are still reported at an alarming rate, and the adequacy and suffienciency of the present rape law is being questioned. Accordingly, this study intends to analyse rape law from the Shari'ah perspective with the purpose of suggesting its harmonisation with Shari'ah as a correctional study. To attain this objective, a qualitative case study method has been adopted. The data have been collected by using two methods, namely document review and interview and the collected data were analysed thematically. The findings of the study indicated that there are three main aspects of Malaysian rape law which are in contradiction with Shari'ah principles: first, the irrebutable presumption of a boy as a rapist in the definition of rape; second, the issue of consent in terms of ambiguity and statutory rape; third, the punishment for incestuous and consensual statutory rape. Therefore, in order to ensure that the law and Shari'ah are in tandem, a suggestion of harmonisation on these aspects has been proposed. It is hoped that this study will contribute to a better Malaysian rape law in safeguarding the welfare of society and protecting the honor and lineage (ḥifẓ al-ʽirḍ wa al-nasl) as outlined in the Shari'ah objectives (maqasid Shari'ah).