The Legal Rapist

The article represents merely the personal view of the writer, Syaiful Aidil Muliani Mustapah by taking into account the necessary jurisprudence and legal perspectives.

The legal system evolves and accommodating upon centuries due to the facts that human are being civilized throughout times. Countries across the world as well as Malaysia are not neutral in amending the laws by taking into consideration of various perspectives for the greater good and prosperity of the citizens. Narrowing down into specific area which concerns with the perspectives of feminism, the issues of “Rape In Malaysia” was not in exception to be in part of the compulsory list to be over viewing over the whole story from the issues arose down to the area suggested to be reform.

Rape is defined as the crime, typically committed by a man, of forcing another person to have sexual intercourse with the offender against their will. According to Section 375 of Penal Code, simply provides that a man is said to commit “rape” who, except in the case hereinafter expected, has sexual intercourse with a woman under circumstances falling under any of the following descriptions - paragraph (a) against her will, (b) without her consent, (c) with her consent so much that the consent obtained under circumstances to make it invalid consent, (d) with her consent where misconception happens, (e) the consent given with the circumstances of deficiency of understanding, (f) with her consent where the offender used his position and last but not least, (e) where the consent given or not given when the girl is under the age of sixteen year old.

So much to say it is related with regards to the gender-based violence at most aspects. At some point, it concerns traditional patriarchal attitudes which speak about the notion of male ownership, control and dominance over women. Over a decade, the rape cases in Malaysia are raising and the statistic shows that a steady increase from 1, 217 of rape figure rises up to 3, 595 in the year 2010. This figure explains as a whole on why according to 2010 Malaysia Millennium Development Goals reported that Malaysia ranks among the highest in the world for reported cases of rape. Surprisingly, the study shows that most of the victims know the sex offenders or they were related to their assailants.

Considering the rate of prosecutions and the percentage of succeed in prosecuting the sex offenders, it makes almost a clear cut the visibility of loopholes exist in the idea of reducing the crime rate of rape as the government being so ambitious, ironically being silent upon the idea to reduce the crime rate of rape in Government Transformation Programme as well as in National Key Result Area. The rate of prosecution in the case of rapes in the year 2009 was only 162.

The idea of showing the rape cases statistically and a rate of prosecutions are to illustrate the idea of rape from Radical Feminism view and arguments they put forward.

“Control”, “Power” and “Domination”

There was once a view told that women are raped twice, first by the rapist and second by the system. The system that failed to protect women, the system that traditionally pointing out women as a subject of absolute sex and nothing less, the system that portrayed women as the rape case happened upon their own desire, they ask for it. This is what the system failed to do and of course, the rules of gender-based domination and violence took place upon powerless of women in social construct. 

Rape is one of the major issues where the contribution of feminist philosophical, social, legal and radical thought has been particularly prominent. In fact, the issue of rape exist long before it is known as ‘rape’ per se since the idea of women exist as second sex and sex object per se was used and broadly known to men – the sex community that hold the benchmark to almost everything. The idea of rape wasn’t exist and standing upon the treatment by the laws or any other issues brought by the social and cultural feminism, it exist and standing upon the idea of being control by the main sex i.e man. Thus, radical feminism was bringing into part to actually throwing out this idea and gender discrimination.

In the case of a man on trial for alleged murder or rape of a woman, the conduct, lifestyle and personality of the woman are the central to the question of guilt or innocence of the man. Rape, as with all gender-oriented violence, is a manifestation of power - the powerful man against the powerless woman.

One way in which rape sustains male domination is intimidation. In developing this point, several radical feminist authors have argued that rape functions as a terrorist social practice. As Susan Griffin puts it in her influential article Rape:

The All–American Crime,

"Rape is a kind of terrorism which severely limits the freedom of women and makes women dependent on men. [...] The threat of rape is used to deny women employment. [...] The fear of rape keeps women off the streets at night. Keeps women at home. Keeps women passive and modest for fear that they be thought provocative” 

Catherine A. Mackinnon, one of the well known radical feminism philosopher argues that in the type of society that we’re living on now, sexuality something more onto a social construct of male power: defined by men and forced on women, and constitutive of the meaning gender. Upon this, Mackinnon asking the society especially men to go thoroughly from all the perspectives and comparing the reports of sex with the way of pornography portrays sex, and claims that they all look very much alike.

If we actually look from the bigger picture, the only difference between rape, pornography and prostitution is on the part of consent though on paragraph (e) of Malaysian Penal Code provides a statutory rape so much like consent does not matter upon the facts of the age of a girl, all these three i.e rape, prostitution and pornography ideas lies onto the idea of a men controlling women. That is when the idea of ‘discrimination’ by the radical feminism view came in. By not portraying the concept of ‘universalism’ and ‘essentialism’ on the question of ‘what is woman?’ radical feminism putting and focusing the public sphere versus private sphere.

Quoting one of the quotes and note by one of the feminist philosopher would be one of the best ways to simply projecting the idea of to look this matter at some point where equality would actually be achieved thoroughly.

Robin Morgan in his article entitled Theory and Practice: Pornography and Rape;

“…Rape exists any time sexual intercourse occurs when it has not been initiated by the woman out of her own genuine affection and desire… Anything short of that is, in a radical feminist definition, rape. Because the pressure is there, and it need not be a knife blade against the throat; it’s in his body language, his threat of sulking, his clenched or trembling hands, his self-deprecating humor or angry put–down or silent self–pity at being rejected. How many millions of times have women had sex "willingly" with men they didn't want to have sex with? Even men they loved? How many times have women wished just to sleep instead or read or watch "The Late Show"? It must be clear that, under this definition, most of the decently married bedrooms across America are settings for nightly rape..”

Concluding Remarks

As has been well documented by the feminist legal scholars, although the victim of the crime of rape is the women, the victim of the legal system per se in any prosecution for rape is the women herself. Given the universalism and a historical nature of gender-based violence, the role of law in this regard is both culturally and historically dependent, but also - given the culturally embedded nature of gender-based violence - destined to play a limited role in the eradication of such violence.