Judges in ‘finger rape’ case take a stand for change

Judges in ‘finger rape’ case take a stand for change

KUCHING - The judges who acquitted a senior citizen for raping a minor agree that the Penal Code on non-consensual sex needs to be amended.

"As mentioned orally during submissions, steps ought to be taken quickly to add to the definition of rape," they said in the just-released written judgment.

The court acquitted the man based on the present legal definition of sexual intercourse, which included only penile penetration.

"We did not think it appropriate to consider convicting the appellant on lesser charges - such as of indecent assault - lest it lends the notion that the courts condone such lesser punishment, and detracts from the urgency of introducing necessary legislation."

They said the prosecution undoubtedly felt the same as "lesser charges are wholly inadequate".

The judges - Datuk Abdul Wahab Patail, Datuk Linton Albert and Datuk Seri Zakaria Sam - pointed out there was no statute of limitation to the crime.

"Finally, rape is even more of an outrage if it results in conception," they concluded.

On May 7, the Court of Appeal unanimously acquitted and discharged Bunya Jalong, 60, for raping a 15-year-old in Sibu in May, June, July and August of 2011.

The girl gave birth on Feb 5, 2012, with a DNA test confirming Bunya to be the baby's father.

In the written judgment, one reason given for acquittal was the prosecution's failure to bring in a further witness to challenge a doctor's view that, if a finger with sperm was placed in the vagina, impregnation was possible.

"The appellant testified that (minor's name withheld) asked for sexual intercourse with him but though he touched her vagina, he did not have intercourse because her vagina was too small."

The judgment also noted that the man's hand or finger had semen and that "while he continued to touch her vagina, she touched his semen" and that both had put their fingers into her vagina.

The verdict led to public criticisms especially from women's groups in a case that had been billed as "finger rape".

Yesterday, Sarawak Women for Women Society president Margaret Bedus said she welcomed the judges' stand on amending the Penal Code.

"Justice had not been served to this victim, who is now a teenage single mother," she said.

"We have a situation where it is known a crime was committed but to enable the law to be reformed quickly, a young girl was denied social justice. A 'lesser' charge was seen as inadequate, but was abuse under the Child Act considered?" she asked.

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