The adoption of law on marital rape in Malaysia / Aimi Shazwani Yaakob...[et al.] (original) (raw)
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Comparative Perspective on Marital Rape: Western Law and Islamic Law
2020
Marital rape is something that is currently being widely discussed in Indonesia. The existing dialectical debate is due to the Draft Criminal Code (RKUHP) and the Sexual Violence Eradication (RUU PKS) which lists the matter. Rape in marriage can be seen in terms of western law and Islamic law. This is triggered by the existence of feminists who reject western law, that the husband can have sexual relations with his wife with the threat of violence or without the will and consent from the wife. This rejection is based on the law, which initially stated that in a husband and wife relationship there is no such thing as rape. In Islamic law, marriage ties will give rights and obligations to husband and wife to be able to have sexual relations with certain manners. Therefore, this paper will discuss the comparison of the views of western law and Islamic law of rape in marriage. This paper will also provide advice on the regulation of rape in marriage in Indonesia.
THE STATUTORY RAPE LAW IN MALAYSIA: AN ANALYSIS FROM SHARIAH PERSPECTIVE
International Journal of Business, Economy and Law , 2017
Rape is defined as an unlawful sexual intercourse between a man and a woman without the latter's consent and against her will according to sections 375 and 376 of Malaysia Penal Code. It is classified into three categories; statutory, non-statutory and incestuous. The statutory rape involves women under the age of 16 regardless of their consent. It is understandable that the statutory rape law intends to protect teenagers from being taken advantage of due to their tender age. In view of the upward trend in the statistics of such victims, amendments to section 375 and 376 Penal Code were made in 2014. However, from the reported cases, more than 50 percent of this category commit it by mutual consent. Therefore, the application of such a law on Muslims raises numerous juridical questions. Accordingly, the main purpose of this paper is to analyse the statutory rape law in Malaysia based on Shariah perspective by using qualitative research approach and adopts the content analysis design. The documents were obtained from various sources, such as journals, reports, books and statistical data obtained from Malaysian Ministry of Women, Family, and Community Development and Parliament Hansard. The books comprise of both Islamic classical and contemporary works and legal texts. The findings show that there are three crucial issues which are problematic in Malaysia statutory rape law from Shariah perspective: first, the issue of consent and determination age of girl; second, the punishment and justice for the male offender, and finally, the deterrence and issue of an illegitimate child. INTRODUCTION Rape is a serious crime according to the Malaysian Penal Code and could be punished with imprisonment for a term which may extend to thirty years according to the latest amendment in 2014. Conceptually, rape is classified under sexual offences, which comprises an offence relating to sexual desire between men and women. According to section 375 of Penal Code, rape is defined as an unlawful sexual intercourse between a man and a woman without the latter's consent and against her will. It is classified into three categories; statutory, non-statutory and incestuous. The statutory rape involves women under the age of 16 regardless of their consent as stated in Penal Code, section 375 (g) as below;
Developments in the law relating to rape and incest in Malaysia
2008
In 2003 and 2004, Malaysians were shocked by several headlines in the daily newspapers reporting several rape cum murder cases. Among these was the case of a computer engineer (Nor Suzaily) who was brutally raped and murdered in an express bus, I followed by the case of Canny Ong. Canny Ong was kidnapped in a parking lot of a shopping complex. After several days, she was found dead and it was reported that she was also raped.' The hue and cry of the public was at a peak when Nurul Huda, a girl aged 8 years, was raped and murdered in Tanjung Kupang, Kulai, Johor. The victim was raped and strangled to death by the attacker.'
Marital Rape in a Comparative Perspective of Indonesian Criminal Law and Islamic Criminal Law
Unram Law Review, 2021
The aim of this research is to know how the regulation of marital rape in Indonesian Criminal Law and Islamic Law. Marital rape or also known as rape in marriage still belong to such a debatable and taboo topic, but in fact it has happened a lot in society. In Indonesian Criminal Law, marital rape is not regulated in the Criminal Code. The Law on the Elimination of Domestic Violence regulates this as a complaint offense by calling the crime of sexual violence. In Islamic Law, marital rape is regulated in a good way by terms of husband and wife intercourse, among others in Surah An-Nisa Verse 19 which prohibits having to do with coercion. Refers to these results of the comparison, similarities are found in both Indonesian Criminal Law and Islamic Criminal Law that said marital rape is prohibited. The differences lie in the form of complaint offense between these laws. Islamic Criminal Law does not explain clearly about the complaints offense as known on Indonesian Criminal Law. Yet t...
Marital Rape in Indonesia in Maqashid Shari’ah Perspective
El-Aqwal : Journal of Sharia and Comparative Law
This article contains the concept of marital rape in Indonesian law, both positive law and Islamic law which is reviewed through maqashid shari’ah. Marital rape is included in the category of domestic violence that can happen to anyone. The type of research that will be used in this legal research is normative legal research. This research is a perspective legal research, which does not require hypotheses that must be proven, but provides perspective on what should be done. Analysis of the marital rape problem is carried out using the maqashid shari’ah approach where the applicable regulations regarding marital rape guarantee 5 main principles in Islam, namely maintaining religion, soul, reason, offspring and property maintained. The results of this study resulted in an understanding from the Qur’anic point of view regarding mu’asyarah bi al-ma’ruf and the maqashid shari’ah view on marital rape. So marital rape for any reason is strictly prohibited because it can damage the 5 main p...
Maqashid Syariad Asy-Syatibi Review of Marital Rape in the Sexual Violence Crime Law
Nurani: Jurnal Kajian Syari'ah dan Masyarakat
In today's life, there are many cases that we often hear about or see that are directly or indirectly related to external sexual violence or marital rape. Therefore it is necessary to formulate rules that can reduce the number of violence, especially marital rape which is a concern for everyone to get married. Maqosid Syariah is one of the appropriate alternative sources of law originating from sources of Islamic law. The following research is a qualitative descriptive research equipped with library research methods with a normative juridical approach. The formulation for regulation of domestic violence in Law Number 12 of 2022 concerning the Law on Sexual Violence has fulfilled the dharuriyat category or primary needs in Maqashid Syariah related to kulliyat al khams, one of the main things, namely Hifzu al-nafs (life protection). In this position, the Act on Sexual Violence can use Maqashid Syariah as an alternative point of view. By formulating these regulations, the concept o...
An Overview of Rape Phenomenon in Malaysia by Muslims Scholars
2018
Nowadays a lot of crimes happen undesirably. We humans are unable to determine what will happen later. Mankind today do not know the difference between right and wrong, they are clouded by emotions that insist them to satisfy the desires. The proliferation of national development in general is now Malaysia, rape has been expanding at an alarming state. Studies show that majority victims of sexual violence are women and girls. World Health Organization (WHO) estimates that 36 to 62 per cent of victims of sexual violence comprises of those aged under 15 years old. Rape occurs worldwide regardless of race, ethnicity, economic status, religion and culture. The proliferation of national development in general in Malaysia, rape has been expanding and reaching to an alarming level. Studies have shown that the majority of victims of sexual violence are women and girls. World Health Organization (WHO) estimates that 36 to 62 per cent of victims of sexual violence are comprised of those aged ...
CRIMINALISING MARITAL RAPE: YET ANOTHER WEAPON TO HARASS HUSBAND
Indian Journal of Integrated Research in Law, 2022
The institution of marriage is sacramental in nature and it is considered to be the union of two persons for eternal. Marriage is a social institution which is given heightened importance in society at large 1. In last two-three decades the institution of marriage has lost its sanctity into the eyes of society at large because of the group of people known as the misandry. If we look at the past then we get puzzled by the worsening of this institution through passage of time. The institution of marriage has in the passage of time has changed itself to fit the demands of time. Marriage as an institution has different connotations in different societies. Let us forget about the different societies and talk about the different time spans through which this institution has been worsened by the people in a drastic manner. The structural and functional aspect of marriage as an institution has turned from simple to complex. What can be the reason of this situation? The author will try to justify this through certain societal aspects and data in a dissentient manner. Indian society is very sensitive pertaining to the institution of marriage but this has become unwonted in few metro cities of India these days. The author will not discuss what marriage is, how it is being practised but will try to discuss the inner subject matter of it and its interior sensitivity and how it has gone affected in a matter of time. Marital rape is one of such example wherein the institution of marriage is again targeted by the group of people who is known to be misandry.
2011
Cases on sexual offenses particularly on rape, statutory rape and sexual harassment in Malaysia keep increasing nowadays. Almost every day, cases on those offenses have been the major news being reported in the newspapers and magazines throughout this country. This research therefore has been conducted in order to study on laws governing sexual offences particularly on rape, statutory rape and sexual harassment in Malaysia. This research will define what sexual offence is and what offences can be regarded as sexual offences. This research also will explain what law is used to govern sexual offences in different countries namely Malaysia, United Kingdom, Australia and India. Subsequently, this research will scrutinize the relevancy, effectiveness and comprehensiveness of law governing sexual offences in Malaysia. Three major issues will be put forward which are protection of man against offence of rape in Malaysia. Secondly, it is necessity to impose equal punishment against man and ...