KUALA LUMPUR, Aug 9 — A 64 per cent increase in sexual harassment and assault against men has moved legal and crime experts to urge the government to review how the law views male rape in Malaysia.
According to Bukit Aman’s Criminal Investigation Department’s (CID) Sexual, Women and Child Investigations Division (D11), male sexual abuse and harassment victims jumped from 82 in 2021 to 135 last year.
Almost half of the male victims in 2023 were linked to cases investigated under Section 509 of the Penal Code for outrage of modesty.
What about rape?
Currently, Malaysia defines rape as “a man having sexual intercourse with a woman against her will or without her consent” under Section 375 of the Penal Code.
If convicted, the offender may be sentenced to a prison term of up to 20 years with whipping.
However, criminal lawyer Rajsurian Pillai said that when a male rape victim lodges a police report, the case will be investigated under Section 377C of the Penal Code for “voluntarily committing carnal intercourse against the order of nature on another person without the consent or against the will of the other person.”
“If the victim is under 18 years’ old, investigations could also be conducted under the Sexual Offences Against Children Act 2017.
“But, it is not classified as rape.
“So, legally, only males can rape and only females can be victims of rape,” he said.
Criminal lawyer Rajsurian Pillai says the Penal Code should be amended to define rape independently of gender. — Picture courtesy of Rajsurian Pillai
Why is this a problem?
This legal position is a contributing factor in discouraging the reporting of male rape.
Criminologist and Enforcement, Leadership and Management University (ELMU) vice-chancellor Datuk Dr Kassim Noor Mohamed said some segments of the society already see rape as an offence of power, leading to belief that men cannot have sex against their will.
Kassim pointed out that two major societal myths particularly hinder male rape victims from coming forward.
“The first myth is that a man cannot be raped because of the unrealistic beliefs that a ‘man’ should be able to defend himself against sexual attack. Hence, the fallacy that rape can only be committed against a female.
“The second myth is that if the victim had an erection or ejaculation, it means he ‘really wanted it.’ But, erection or ejaculation can be induced through manipulation and pressure on the prostate.
“So, neither developing an erection or ejaculating indicate that a man wanted or enjoyed the assault nor does it say anything about his sexual identity,” Kassim explained.
The lack of specific legal recourse for male rape victims, he said, has also led cases to be pigeonholed as sexual harassment or abuse or sodomy.
Sodomy can also carry additional stigma of its own.
Criminologist and Enforcement, Leadership and Management University (ELMU) vice-chancellor Datuk Dr Kassim Noor Mohamed says rape laws were overly focussed on penile penetration. — Bernama pic
What can be done about the law?
Kassim said rape laws have traditionally been very phallocentric, placing the element of penile penetration as the most crucial aspect of the crime.
However, he said Section 377 that currently is the recourse for male rape victims neglects the element of consent because it merely criminalises all acts of sodomy.
Similarly, Advanced Tertiary College senior law lecturer Redza Zakaria called Section 375 “archaic” as it perpetuates the view that the man is always the sexual aggressor and a woman is always the victim.
He noted that countries like the United Kingdom — from which Malaysia inherited the Penal Code — and India have amended their laws to recognise male rape.
Redza also highlighted another problem with limiting rape to penile insertion, saying various other sexual penetration should also constitute rape.
“A sexual predator can still penetrate a victim with sex toys or other objects or even with his or her fingers.
“The law must be updated to account for these factors, too,” Redza said.
How should we do it?
Rajsurian and Redza both said Section 375 should be amended to be gender neutral for both the victims and perpetrators.
One example, Redza said, was the Sexual Offences Act 2003 in the United Kingdom that made victims of rape gender neutral by defining the victim as “a person” instead of limiting it to only a woman.
However, Kassim this was an imperfect solution as it does not allow for a woman to be charged with raping a man, meaning it was still unequal.
The law must protect both males and females against any violation of their bodies when there is no consent or will, he said.
“These two elements alone should stand to justify the offence of rape has taken place,” he said.