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.
