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Sunday, April 03, 2005

Reform of the Penal Code

BBC NEWS | Europe | Analysis: Turkish penal reform woes

Even assuming that the penal code as it stands goes through in the near future i.e. after the two month delay, it will nevertheless still be more progressive than the penal codes in our Austral-Asian Region, including in certain respects, our local one.

All references are to the Penal Code (Cap. 224, 1985 Sing. Rev. Ed.) unless stated. Check out statutes.agc.gov.sg for a public domain copy.

In particular:

1. Marital Rape exemption (s. 375, the exemption reads: Sexual intercourse by a man with his own wife, the wife not being under 13 years of age, is not rape) Still in Singapore despite AWARE's valiant attempt (albeit a little misguided) to remove this exemption. The focus should be on reforming rape laws not removal of this exemption per se.

2. Honour killings specifically removed as a defence to murder (s. 300) under provocation (special exception 1: Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.)

Australia still allows for it unfortunately (case of immigrant Turkish father killing daughter for 'dishonouring' family). If it happens in Singapore, it would not be too difficult to get around the statute I suppose because of the Common Law test of the Reasonable Person.

To quote the BBC, the Penal Code will generally be less sexist and less discriminatory against women. In Singapore, the code discriminates against men particularly in terms of sexual offences. Note: I don't wish to discuss at this point whether this discrimination has the effect of getting more convictions or if it encourages women, whose modesty has been outraged or whom have been raped, to come forward. I simply want to comment on the law as IT IS.

So what is the situation as it stands locally?

Rape is a male thing: As the Penal Code defines it, it constitutes a man inserting his penis into a woman's vagina (the literal stautory meaning of sexual intercourse) without her consent. So it effective denies that a male can get raped by a female (Australian courts have recognised this possibility). This sexist mindset also has the undesired effect of making women perpetual sexual victims in need of the law's aid.

Furthermore things that we would ordinarily consider as rape i.e. forced non-consensual insertions (penetration) of foreign objects into another's orifice DOES NOT constitute rape. Instead it comes under Outrage of Modesty (s. 354), Insult to Modesty (s. 509 only applicable to women mind you), Unnatural Offences (s. 377) or voluntarily causing hurt (s. 321 and note: NOT grievous hurt, which requries very specific serious types of injuries).

All these are highly unsatisfactory because their maximum sentence is generally that of a year or two so unless the prosecutor can make twenty charges stick you'll never hit the maximum sentence for rape. So, there are a number of nasty cases floating around which the criminal never got his just deserts e.g. forcing the victim to suck on a dog's penis. Or forced fellacio, or sticking implements up the victim's vagina and/or anus.

So if we adopt the more refined definition of rape as most jurisdictions have done, then we will not encounter this problem anymore. In addition, we'll get various fringe benefits like making the law more gender neutral.

1 Comments:

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October 13, 2005 4:24 am  

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