Hard to prove 'stealthing' equals rape, says law lecturer

A law lecturer said today that it will be difficult to prove that the act of 'stealthing' amounts to rape under Section 375(c) of the Penal Code.

'Stealthing' refers to the practice of a man covertly removing or damaging a condom during intercourse, despite being aware that his partner only consented to protected sex.

Criminology expert Shamsher Singh Thind was commenting on a Malaysiakini report on a 38-year-old woman who had filed a report at the Kajang police station against a migrant worker on July 20 on an alleged stealthing incident. 

The victim's lawyer, Serene Lim, said that stealthing should amount to rape under Section 375(c) of the Penal Code, but that the current law does not adequately define consent.

According to Shamsher, however, for a sexual act to constitute rape under Section 375(c), it is necessary for the woman to give consent under a misconception of fact, and that the man knows or has reason to believe that the consent was given in consequence of such misconception.

"The meaning of the phrase 'misconception of fact' was discussed in the case of Jayanti Rani Panda v State of West Bengal (1983), in which a girl lodged a police report after her boyfriend refused to marry her as per his promise, and left her when she got pregnant," he said.

"The Calcutta High Court made the following observation: 'If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by a misconception of fact, unless the Court can be assured that from the very inception the accused never intended to marry her’."

Need to prove intention

Shamsher argued that stealthing does not amount to rape unless it can be proved in court that the man never had the intention to use a condom in the first place.

He said the task will not be easy for prosecutors.

"Secondly, the police report was lodged because the woman felt cheated and was afraid of contracting a sexually transmitted infection (STI).

"In other words, her complaint is not that sexual intercourse had taken place without her valid consent, but that sexual intercourse was unprotected.

"If indeed the woman is infected with an STI from that man, then the police may investigate the case under Section 269 of the Penal Code for negligently spreading the infection of any disease dangerous to life,” he added.

This case would then be punishable with imprisonment for a term which may extend to six months or a fine or both.

It could also be tried under Section 270 of the Penal Code, which addresses malignant acts likely to spread infection of any disease dangerous to life.

If convicted under Section 270, a person could face imprisonment for a term which may extend to two years or a fine or both.

Referral to Jais 

Lim was also previously quoted as saying that the police should investigate the stealthing incident, instead of referring it to the Selangor Islamic Religious Department (Jais).

In response, Shamsher highlighted Section 25(2) of the Syariah Criminal Offences (Selangor) Enactment 1995, which provides that any woman who performs sexual intercourse with a man who is not her lawful husband shall be guilty of an offence.

She would be liable on conviction to a fine not exceeding RM5,000 or to imprisonment for a term not exceeding three years, whipping not exceeding six strokes, or any combination thereof.

"Given the fact that the woman, in this case, is a Muslim, then it is correct for the police to refer the matter to Jais for further action," he said, rebutting Lim's suggestion that the case should be probed by the police.

"Unknown to many, there is a syariah criminal code in every state in Malaysia, and not just in Kelantan and Terengganu," he said.

A copy of the victim's police report was leaked online and had gone viral last week.

Kajang police chief Ahmad Dzaffir Mohd Yussof, who confirmed receiving the report, had said the case would be referred to Jais.

As the leaked report did not redact the victim's phone number and house address, the woman has been subjected to online harassment, as well as through phone calls and text messages on multiple chat applications. - Mkini