Should rape be dropped from the Penal Code and made a civil matter?

Even if the BFM victim declines to testify, the police can still interview the alleged rapist and warn him that they are keeping tabs on him. — Picture via Facebook
Even if the BFM victim declines to testify, the police can still interview the alleged rapist and warn him that they are keeping tabs on him. — Picture via Facebook

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COMMENTARY, Jan 11 — Earlier this week, radio station BFM issued a press release stating it had sacked an employee accused of rape in 2017 after it became aware of the allegation that same year.

BFM said it sacked the alleged rapist but did not lodge a police report because the complainant did not wish to do so.

The radio station, well-known for its progressive stand on various issues, also announced in the same press release that it had fired two other male employees accused of sexually harassing their colleagues.

But hardly anyone has spoken up even though a crime punishable by 20 years’ jail was made public in a press release.

The police, government officials, lawmakers, senior women’s rights activists, women leaders, and liberal opinion makers have not said anything. Except for two DAP MPs.

Bukit Gelugor MP Ramkarpal Singh said in a statement that BFM should file a police report against the employees it sacked for rape and sexual harassment. Batu Kawan MP Kasthuri Patto told me that sacking an employee accused of rape without filing a police complaint “simply means that the perpetrator is free to roam, preying for his next victim, in total disregard of the law.”

Some liberals have even gone so far as to say that a criminal investigation should not be launched out of respect for the rape victim.

Why complain about the dismal reporting rate of rape (only one out of 10 rapes are reported) if we’re just going to leave it to the victim to deal with the assault on her own, instead of loudly demanding for action from the authorities so that she will feel brave enough to report the crime?

Then we might as well drop rape from the Penal Code and make sexual assault solely a civil matter.

After all, according to some activists and liberals, it is up to the victim to decide whether she wants action taken against her rapist or not.

So, if rape is merely a civil issue, then no one else — be it third parties or the State — is obliged to seek action.

Rape is currently a crime which means, according to lawyers, that it is an offence against the State. It is not simply an offence against an individual. This is why rape is prosecuted by public prosecutors and is an offence under criminal law.

But if we feel that only the victim has the right to seek action because only she, not the State, was wronged by the act of non-consensual sex, then let’s drop the pretence of fighting for “justice” and just let rape survivors decide for themselves if they want to sue their perpetrators. No need to get the police or everyone else involved.

Just let rape be a private matter between two individuals. Or, if a man rapes multiple women, they can file a class-action suit!

Lest people don’t get sarcasm, I must clarify that I do not advocate dropping rape from the Penal Code. I was merely explaining the logical conclusion of some liberals’ response to the BFM case.

Would they have the same mind-boggling reaction if the sexual assault allegations had hit a conservative media outfit like Utusan? Or would these activists (rightfully) scream blue murder and demand not only criminal action, but also the resignations of top management for allowing a cesspool of misogyny to breed in their organisation?

But no one is screaming.

Two lawyers — Afifuddin Ahmad Hafifi and Daniel Annamalai — told me that BFM can file a police report over the rape case.

“There is no legal requirement to state that the person lodging the report ought to have a personal experience or a first-hand experience of the particular offence alleged of being committed because the criminal law can be set in motion by anybody,” said Daniel.

He said a private citizen can lodge a police report as well and that under Section 107(4) of the Criminal Procedure Code, a police officer is “duty bound” to receive any information on any offence.

“Upon having made a police report, the police are duty bound to commence an investigation upon the rape incident based on a reasonable suspicion.

“In BFM’s scenario, the fact that the organisation has sacked the perpetrator could mean that BFM has credible evidence to prove such an incident did take place and this in itself gives rise to a reasonable suspicion to the police officers to investigate further into the criminal aspect of the incident,” said Daniel.

Filing a police report over the rape case is not just for the survivor, but it is also to protect other women from an accused rapist on the loose.

Even if the BFM victim declines to testify, the police can still interview the alleged rapist and warn him that they are keeping tabs on him. Being on the police radar will make him think twice about assaulting other women, even if he “got away” with the BFM attack.

I don’t know about you but I do not feel safe knowing that there is an accused rapist out there who got away with his crime even though the whole country knows what he did. His identity is protected, the police are not looking for him, and no one is baying for his blood.

He merely got the sack. But because he remains anonymous, he has probably found another job. The alleged rapist eats, sleeps, and goes to work like the rest of us.

Like us, he has friends and co-workers and socialises with them, including unwary women who do not know that he is an accused rapist. If a poor unsuspecting woman falls into his clutches and refuses to have sex with him, he may rape her... after all, he got away with it once.

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