By Emellia Shariff
I’m sure I wasn’t the only person who choked on coffee while reading this headline: “Marriage isn’t the worst thing for rape victims.”
Shariah lawyer Faiz Fadzil said at a forum on Islamic family law in Cheras that it was important for the shariah courts to balance the best interests of the victim as well as the unborn child in pregnancies resulting from cases of rape. Getting rape victims married to the rapist, he said, wasn’t always the worst option. However, he added, the condition should be that both parties wanted to get married.
I imagine this appears a brilliant solution to Faiz.
Well, sorry to break his belief but this certainly is not the case. In fact, it is quite the opposite, because encouraging young rape victims to marry their rapists is the absolute worst thing one can do.
We must accept, however, that common sense is not so common these days, so let’s just unpack the statement in question, and thoroughly examine how flawed this proposition really is.
Statutory rape is defined as sexual intercourse between a man of any age and a female who is under the age of 16, with or without her consent. In this case, the man is considered to have committed an offence even if the girl appears to agree to such sexual acts. The reason behind this is that the law acknowledges the fact that a grown man has an unequal amount of control over the underaged female. Even if such control is not exerted physically, a grown man would be much more persuasive in pressuring the underaged girl to agree to his desires, which include the performance of sexual acts, considering the age and experience gaps of both parties.
What we now need to acknowledge is that, this level of control or undue influence, as the law calls it, is not something that only a 16-year-old girl might be subjected to. It exists every time two individuals enter into any kind of relationship, where one party is more dominant than the other, thus having the capacity to influence the decisions and actions of both parties. This is exacerbated when the girl, 18-year-olds included, is extremely young, impressionable, and has probably never had any sexual knowledge beyond what she may have seen on television.
In fact, this kind of power play also exists in familial relationships, between parents and daughters, for example, where the parents would have the capacity to evoke feelings of guilt in their daughter or coerce her into making certain choices that may benefit the family, and have the daughter believe that this particular decision is also what’s best for her. Now, remember that degree your parents made you take in university although you had zero interest in the subjects? Yes, one of those decisions.
This brings me to my point: the concept of consent here is flawed. I’m not saying that our 18-year-olds are daft and incapable of agreeing to anything in their lives on their own terms. However, consider this: this same 18- year-old girl has spent her entire life being told that sex is taboo and that she would be committing the gravest sin by losing the most valuable part of herself by having sex with a man outside of wedlock; and she has probably never talked about sexual intercourse with an adult who can explain the emotional and psychological after effects of intimacy.
All I’m saying is, we cannot expect this 18-year-old person to fully understand the extent and consequences of this choice that her 12-year education system never bothered to teach. The only thing societal norms have taught her is to feel unchaste, guilty, and ashamed of herself – all of which would push her into believing that she has to redeem herself in the eyes of God (and/or her family) by marrying this man whom she has had sex with. In fact, some women in their early 20s still struggle with the same intimacy and sexual issues, all thanks to the lack of sex education in our schools.
This is why entrusting underaged girls (or even boys, for that matter) with such a complex and momentous decision is not the best way to deal with this problem. Think of it this way: we basically disallow or discourage our minors from making any major choices on their own, be it medical decisions, or even something as simple as deciding which school they should attend, without adult supervision. We don’t allow them to enter into contracts with any third party for fear that they would not understand the nature of the considerations and contractual obligations that may arise from such a covenant.
But somehow, when her own life – which might be ruined, completely manipulated and taken advantage of – is the consideration to this contract of marriage, we are ever so happy to wash our hands and let her make this choice. That doesn’t make sense, does it?
Maybe there are some genuine adult-underage child relationships out there, but the role of the state and the legal system is to protect the smallest denominators in our society, and we should err on the side of caution and not let our girls sign their lives off to the men who have probably spent the last few months of their “relationship” grooming them into sexual beings they felt they’d like to see in bed.
Since we’re on the topic, grooming is defined as the act of befriending and building a façade of emotional connection with a child for the purposes of sexual abuse, sexual exploitation or trafficking. This relationship usually exists in secrecy, and once the child is isolated from her surrounding, the offender will start to sexualise the relationship by a process of desensitisation which occurs through talking, sharing of naked pictures, as well as touching each other in inappropriate places. If you don’t already know, child sexual grooming is a serious issue in Malaysia, and there is an ongoing campaign to make child sexual grooming illegal after an undercover operation performed by a bunch of dedicated journalists exposed how rampant this issue really is.
So, can we trust that, when an underaged rape victim expresses her willingness to marry her rapist, she fully understands the consequences of her choice and is not pressured by any party into making that choice? That it isn’t just her guilt and her desperate attempt to appease her parents and save them from the embarrassment of having a pregnant underaged daughter under their roof? Or, that it is not her sense of pity towards this man whom she has been convinced to be sexually intimate with, to save him from jail time? This is especially so considering the fact that the rapist would get away scot-free with no punishment whatsoever if she marries him, and that she might be able to save what’s left of her family’s name and reputation if she just agrees to marry this man. That’s a lot of external pressure, isn’t it?
Faiz said, “If the man is found guilty and is then punished for his crime, it is more than likely that he would refuse to take responsibility for the child (resulting from the rape) in the future.”
Well, this is exactly my point. The fact that he might agree to marry this woman is not a declaration of his lifelong commitment to take responsibility for the child, but, rather, an easy way out of severe punishment. So, who will be left to take care of the child if the father flees in the near future? The mother, with her limited education and work experience (since she will most probably have to spend most of her time nursing and caring for the child), will be struggling to give the child a comfortable living. Well, she would very likely be struggling to even give herself a comfortable living in such a situation.
This is the same child which Faiz cares ever so deeply about. He remarked, “We must also remember that the unborn baby has a right to a good education as well, and this can be difficult if the baby is born out of wedlock.”
What we have here is a problem-solution mismatch. If you want to care for the child, then seek a better welfare system, which can provide for a good education system. Don’t coerce two individuals into a task which they might grow weary of, as they mature into adulthood and start to realise their dreams and aspirations. I understand that Faiz does not have the power to unilaterally change the law overnight, but settling for less is not doing justice to this child, either. Instead of encouraging two individuals into parenting a better future for the child, in the hopes that neither of them might screw up, maybe advocating for systemic changes to improve the rights of this child is a better thing to do.
If we allow this proposition that Faiz supports, it would mean that we might risk coercing a girl or young woman into marrying the man who had raped her against her will, or the man who had been grooming her into his sex toy for the most part, to live in the same house and sleep on the same bed.
It is extremely traumatising for a rape victim to live with the man who had stripped her of her dignity and bodily autonomy, as husband and wife in the same house. Even if the child has been pressured into agreeing to marry her rapist, as she grows up and learns from the wisdom of life, she might resent her rapist and her marriage for the rest of her life – that is if the man has not left her and her baby at that point in her life. So can we really bank on “choice” and “willingness” in this situation? No we simply cannot.
Lastly, remember that marriage is not a universal good and is definitely not a solution to all the social issues we face today. In the context of a patriarchal society which naturally but unfairly grants more rights and privileges to the man in the family, I’d understand why individuals of a certain gender might think that getting married is not such a bad deal after all. They usually aren’t the ones who have to give up their careers and prioritise household issues as a consequence of being “born into these roles”. They are also not the ones who are expected to shoulder the responsibility of cooking, cleaning and nursing their child after a long day at work while the other spouse sits and watches television.
So there are things in a marriage that we need to objectively take into account. Consider this question: if a teenager is coerced into a marriage, with a new-born child, what is the real likelihood of her going back to school to pursue her ambition? We all know the answer to that.
Emellia Shariff is an FMT reader