Malaysia, Caning, and Beer -- Part V

Sooner or later it seems Kartika Sari Dewi Shukarno is going to feel the thud and sting of the cane. The case is an interesting test of Malaysia's claims to be a moderate Muslim nation and the acceptance of strict forms of Sharia law that impact on only certain groups within the Malaysian ethnic, cultural, and religious fabric. Shukarno has upped the ante in the case by refusing to appeal.

Once the sentence is carried out, she will become the first Muslim woman in Malaysia to be sentenced to a caning and then have the sentence imposed.

Shukarno's crime was to be a Muslim caught drinking beer in a nightclub in Pahang state. The religious court found her guilty of the crime and sentenced her to six strokes of the cane. I have written about the details of the case here.

The government stepped in and requested a review of the case because it believed the sentence to be too harsh and the press about the case could conceivably damage Malaysia's reputation as a moderate Muslim nation.

However, and perhaps in a sign of separation of powers, the religious high court in Kuantan has affirmed the lower religious court's decision and has stated in unequivocal terms that the sentence was correct and it must be imposed as handed-down.

It was also decided that a good ol' caning during the month of Ramadan was not in the spirit of the month where fasting, praying, and cleaning oneself of sins are paramount.

Islamic scholars in Malaysia have generally supported the sentence and have said in any event Shukarno is to be fully clothed and the cane is much smaller and lighter than the canes used in criminal matters. Perhaps this is meant to suggest that it is a lesser offense and hence there is a lesser punishment or it just won't hurt that much anyway, so let's get this over and done with.

Rape In Marriage -- Malaysia

Rape in marriage is perhaps one of the most under-reported crimes in almost all jurisdictions. Whether this is because the jurisdiction does not yet have laws in place to prosecute the crime or whether the stigma associated with rape prevents reporting or people just do not accept that a person can be raped by their spouse are all possibilities for the lack of reporting.

However, Malaysia has put into place a law that makes it a crime to commit rape in marriage. This law is in fact an amendment to the penal code, and has been in force since September 2007. The law is far from perfect, at least in my mind, as the maximum sentence for rape in marriage is five years. The maximum sentence for "ordinary" rape is thirty years.

In my mind, rape is rape, and the maximum sentence available, if found guilty must be the same. However, in a recent Australian case, a jury was seemingly convinced that rape could, in very limited and specific circumstances, be accidental.

Nevertheless, the prosecutors of eastern Pahang State in Malaysia have used the amended Penal Code to successful prosecute a Malaysian man who was alleged to have raped his wife and forced her to have anal sex as well. He was sentenced to the maximum of five years for the marital rape and a further 10 years and three lashes for the anal sex charge. This was the first successful prosecution for marital rape under the amended Penal Code.

This is an interesting development for a number of reasons. First, it seems that there are greater protections afforded, primarily, to women who are raped by their husbands. I am not sure that one decision is enough to inspire across the board confidence in the law, but it is a start and it is a step in the right direction.

Second, the Manohara case may benefit from this judgment. It would seem clear from the allegations being put forward by Mano that the prince was a bit of a sex addict, perhaps even a bit of a fiend, and that he was very demanding on the need for sex. Was this rape in marriage? If so, is Manohara, or her team, thinking about pursuing the prince in this manner?

Hopefully, though the decision will inspire more Malaysians to stand up for their marital rights, particularly women, and that rape at any time is not something that must be endured in silence and shame.