(Kuala Lumpur, Thursday): I am disappointed with the comment by the Bar Council on the proposed new clauses that define aggravated rape to the proposed amendments bill on Penal Code and Criminal Procedure Code.

The Bar Council has criticised and objected to the proposed new paragraphs (f) and (g) recommended to be incorporated into section 375(2) as well as to the proposed new section 375A of the Penal Code in the proposed bill.

1. The proposed section 375 (2)(f) provides that: a person commits rape on a woman, "with her consent, when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her"; and section 375(2) (g) "at the time of the offence the woman was pregnant."

2. The new section 375A provides that: "Any man who during the subsistence of a valid marriage causes hurt or fear of death or hurt to his wife or any other person in order to have sexual intercourse with his wife shall be punished with imprisonment for a term which may extend to five years."

The Bar Council described 375 (2) (f) as being designed to appease women rights groups insistent for such an amendment and they are of the view that innocent parties may be easily accused of rape. The Bar Council was also of the view that consent obtained by virtue of professional relationship or relationship of trust is vague and can easily be abused when a genuine relationship turns sour.

The Bar Council also argued that 375A can be easily abused when the marriage is breaking down and it can be used as a "weapon" by a wife against the husband who has ulterior motives to blackmail him for matrimonial assets.

I regret that the Bar Council has not only failed to see the intentions of the Select Committee to include the said clauses into the bill, it also failed to see the need for Parliament to address new issues related to rape where the victims were forced to give consent when rape is taken place.  This include the male partner in the relationship causing hurt in order to have sexual intercourse or marital rape, as well as a woman being forced to give consent for sexual intercourse when the rapist uses his authority and professional relationship to have sex with her. Cases which had happened in the past include policeman uses his authority to force a lock-up female detainee to have sex with him, or a bomoh or monk who uses his "professional relationship" with a woman when she seeks help from him, or a doctor with a patient. There is a great need to amend our laws to close any loophole that could be exploited by devious offenders and crafty lawyers.

At the moment, the Penal Code doesn't consider sexual intercourse by a man with his own wife as rape, even if the sexual demand is rejected by the wife and the sexual act has caused her hurt and pain. Many countries around the world have outlawed marital rape and it is time the women of Malaysia get similar protection, especially a bad marriage when a woman has failed to get a divorce from the husband due to various reasons.

Of course clause 375A in the proposed amendment can be abused by the wife when the marriage is broken down, but there are other safeguards where the prosecution and the court can verify whether the claim of rape by the wife is valid.

The Bar Council should recognize the fact that many rape victims dare not come forward to report rape due to various social pressures, and the majority of men who have been accused of rape are freed at the end of the trial, and the court proceedings are normally long and hurting to the rape victim and her family.

It is time for us to amend and improvise our present law to address the issue of rape as a step to give greater protection to the vulnerable victims.