”All persons are equal before the law
and entitled to equal protection of the law.“
Federal Constitution, Article 8(1)
“Except as expressedly authorised by this Constitution,
there shall be no discrimination against citizens on the ground
only of religion, race, descent, place of birth or gender
in any law relating to the publication of any trade,
business, profession, vocation or employment.”
Federal Constitution, Article 8(2)
(© Jozsef Szasz-Fabian / Dreamstime)
IN 2001, Article 8(2) of the Federal Constitution was amended to render gender discrimination unconstitutional. The minister in charge, Datuk Seri Dr Rais Yatim, stated that Malaysian women “should be thankful to the government that this step has been taken.”
Although the amendment was welcome, any person who has worked on gender equality in Malaysia will tell you that for many, it came too late. Plus, there is much else in our legislation that needs improvement. For example, there is no existing act that explicitly declares sexual harassment to be a crime.
There are still strong societal attitudes in Malaysia that are discriminatory and have seeped into some of our laws. The understanding of how laws and policies can and do affect men and women differently is not taught adequately in many law schools, even in well-respected institutions overseas.
For instance, economic want reduces a person’s status in society. Women are particularly vulnerable to this fact. In Malaysia, only 36% of women make up the workforce, and half of this number is made up of unpaid family workers. For women, the work sector that has recorded the highest growth has been that of middle- and low-level jobs. In 1990, out of all Malaysian employers, only 8.5% were female.
The majority of unpaid workers in the country are women, and the work they perform as mothers, wives and homemakers is often underappreciated.
And in Malaysia, when one partner gives up paid employment to care for children and the home, it tends to be the wife.
Many women are married to husbands who abuse their lack of economic power. These women are vulnerable to a variety of abuses, including but not limited to physical and sexual violence. But because they are economically disempowered, they are consequentially less willing to report these abuses — they would rather save their marriage and family.
Additionally, we live in a society that believes one should not interfere in family matters, despite the occurrence of violence. This means that abused women continue to live in fear and blame themselves for their inability to create a safe or happy environment for themselves and their children.
Violence and silence
(© Jose Antonio Sánchez Reyes / Dreamstime)The Domestic Violence Act, which took more than a decade to be passed in Parliament, and a further two years to be implemented, criminalises household violence.
However, its limitation lies in the fact that it only protects married spouses and not persons who are married in customary law or couples who live together. Whatever moral and societal misgivings that exist among those who draft our laws, intimate-partner violence is a crime, regardless of whether the couple are officially married or not.
In 2007, amendments were made to the Penal Code to include within the definition of rape “husbands who use violence to force sex on their wives”, which applies to both Muslim and non-Muslim women.
The very term “marital rape”, however, was not included. A member of the Parliament Select Committee that reviewed the Penal Code and Criminal Procedure Code, Teresa Kok, said using the term “marital rape” would have spelt doom for the amendment.
Notwithstanding the slight improvement from the previous law, it is not difficult to understand why the reluctance to use the term “marital rape” evoked mixed feelings.
It reflects the unjust and wrong assumption that women all over the country are just waiting to charge their husbands with rape for fun. These women are apparently very happy to destroy their marriages, traumatise their children, and suffer social stigma for legal sport.
Many people do not realise that rape, as a charge in criminal law, requires a higher standard of proof than civil law. Therefore, the fear that criminalising marital rape would lead to many husbands being illegally but successfully charged in court is irrational.
Instead of having to prove on the balance of probabilities, the standard of proof is that of beyond reasonable doubt. We need to take into account the nature of marital rape as well. It is a particular sort of crime that continues to take place because there are no witnesses present who would eventually testify.
And rape survivors, on the whole, are highly reluctant to report the event out of shame. The rape itself is traumatising. But for many rape survivors, the ordeal is all the more shocking because, for many, their assailants are known to them. Victims become confused and insecure over the assault, wondering if they did something to cause it.
The rape after the rape
Many of those who do report the crime face insensitive police officers and the harrowing ordeal of a rape trial.
(© Piotr Kozikowski / Dreamstime)According to the All Women Action Society (Awam)’s Rape Report: An Overview Of Rape In Malaysia, on average women take 46.4 days to report the crime, if at all. This means that DNA evidence cannot be collected effectively.
Our Evidence Act bars questioning of the rape complainant with regards to her sexual history or experience unrelated to the crime. This, however, does not prevent the courts from allowing inquiries by the rapist’s defence lawyers on the very same matters, to cast doubt on the victim’s integrity as a character witness.
According to the Anti-Rape Task Force, cases often conclude that rape survivors consented to sexual intercourse when there is no evidence of a struggle. This is an additional burden on the survivor. For many women, fear paralyses them to conclude that putting up a fight will endanger their lives further, never mind the damage inflicted upon their physical, emotional or mental well-being.
The majority of physical assault and sexual violence cases are committed not by strangers but by persons abusing the rape survivor’s trust. These include husbands, boyfriends, relatives and friends familiar with their intended victim’s movements, and unscrupulous employers taking advantage of their power over the victim’s job security.
According to Awam’s Rape Report, 80% of rape survivors know their rapists.
But according to underlying societal attitudes, only “loose women” invite such crimes. This is a widely believed but inaccurate rationale that does not apply when babies, women over 70 years of age, and physically- and mentally-disabled women are rape victims.
Justifying the unjustifiable
In the case of murder, passion is insufficient justification for losing self-control. In the case of rape, it appears that (male) passion is an acceptable reason for loss of control.
A man walking in an unsafe neighbourhood at midnight and mugged at gunpoint does not receive the same moral judgment as a woman raped at a party. If we can acknowledge the right of the man to live safely, surely the woman deserves the equal right of walking or standing safely wherever and whenever she pleases. Rape is a calculated crime and not a crime of passion.
If we are truly serious about mutual respect and equality to eliminate discrimination in all forms, a shift in societal attitudes is urgently needed. There has to be comprehensive education to allow people to understand how gender discrimination takes place in our society.
This public education has to transpire in a manner that is legally relevant; it must reach and aid legal practitioners and lawmakers. Our ability to bring about this transformation must happen and be reflected in the laws, to uphold the right to be free from gender discrimination, in line with the Federal Constitution. The sooner this occurs, the better.
On 8 March 2009, many Malaysians will recall how the general election last year resulted in a tectonic shift in the country’s political landscape. Let us not let this overshadow the fact that 8 March is also International Women’s Day.
(© Joe C; source: Flickr)
Petra Gimbad likes feminism and social justice, and is a law student in her spare time.