Man charged with committing unnatural sex with beautician without her consent

A Kuala Lumpur City Hall general worker pleaded not guilty in the Sessions Court here today to committing carnal intercourse against the order of nature on a beautician without her consent.
Kamarul Zaman Abdul Rashid, 44, who wore green Baju Melayu was charged under Section 377CA of the Penal Code which is punishable with up to 20 years in jail and whipping if convicted.He was alleged to have inserted prayer beads and finger into the woman’s vagina at a house No.6, Block G (E Tambahan), Kampung Melayu Sri Kundang, Kuang, Rawang, at 11.30am, Nov 15.

Kamarul Zaman was arrested on Nov 19 while the woman was 33 years old.In applying for bail, defence lawyer Simon Sabapathy said Kamarul Zaman was married and had to provide for his five children aged between three and 19 years as well as his parents.Assistant Public Prosecutor Salwa Asmary Abdul Rahim objected to the application and said that if Kamarul Zaman was allowed bail, the amount should high and additional conditions should be imposed.The reason she gave was that such a case occurred frequently and could make the people worried.Judge Wan Mohd Norisham Wan Yaakob later fixed the bail at RM6,000 with one surety and ordered the accused to surrender his passport to the court and to report to a nearby police station every month.He also warned Kamarul Zaman not to harass the victim and set March 10 next year for trial.

http://www.nst.com.my/Current_News/NST/Tuesday/NewsBreak/20081125160403/Article/index_html

Section 377CA of The Penal Code provides for Sexual connection by object.Under this provision, "Any person who has sexual connection with another person by the introduction of any object into the vagina or anus of the other person without the other person's consent shall be punished with imprisonment for a term which may extend to twenty years and shall also be liable to whipping. [Exception: This section does not extend to where the introduction of any object into the vagina or anus of any person is carried out for medical or law enforcement purposes.]

The essence of the section is the introduction of any object into the vagina or anus of another. Thus prayer beads would suffice. However it was thought that this section would not cover the insertion of a human part such as a finger. But this would be interpreting the word " object" in a strict sense. From the case it would appear that " object" would cover a human part such as a finger.However this would be a matter for determination by the court. This section would apparently cover the insertion of a dildo . But Section 377CA The Penal Code depends on the consent of the other party. If the other party consents to such introduction , then no offence would be committed under this section. Interestingly the section would not apply despite the lack of consent where the introduction of any object into the vagina or anus of any person is carried out for medical or law enforcement purposes. Thus a doctor who inserts an object into the anus or vagina of a patient would not commit any offence under this section. Similarly law enforcement officers also could insert objects into the anus or vagina. But this exception should be qualified in the sense that the said insertion is for a purpose incidental to the work of these two professions.

Examining homosexual laws in Malaysia

Section 377 of the Penal Code criminalises gay sex.It also deals amongst other things with anus and oral sex. For purposes of clarity the author will confine the discussion to its relationship with homosexuality. It comes under Unnatural Offences 377. Under section 377A which relates to carnal intercourse against the order of nature it is provided that any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature. The explanation states that penetration is sufficient to constitute the sexual connection necessary to the offence described in this section. The unnatural sex would also refer to oral and anal sex. As to why it is deemed "unnatural, a post in http://www.malaysiabrides.com/ referred to provisions of the Old Testament of the Bible, where oral and anal sex was considered to be "against" the order of nature because of the "waste" of sperm and the sex act itself. Traditional sex was deemed to be the typical vagina meets penis. Foreplay wasn't even discussed - of course kissing was allowed but anything else was considered to be debauch behaviour. The punishment for committing carnal intercourse against the order of nature under section 377B provides for imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. The learned view of Mallal's Penal Law (at page 643) states that penetration alone will suffice for an offence and it need not be a fully completed act.The degree of penetration necessary to constitute an offence would be a matter of fact to be determined by the courts. Since the section is dependable on the introduction of the penis into the anus or mouth of the other person, therefore the word "any person" would only make a male liable since only a male can make the said penetration. The male or female partner whose anus or mouth is penetrated by the offender, will not be liable under this section, even though they consented to the act [see Mallal's Penal Law at page 643].

The laws are a relic of the British colonial era. The sodomy laws were introduced in the late 1870s by British administrators, about 20 years after the first such law was drafted by Lord Thomas Macaulay for the Indian Penal Code.Similar sodomy laws were adopted by other colonies, such as Australia, Bangladesh , Canada, Hong Kong, the Straits Settlements , Pakistan and Sri Lanka.Australia, Canada, Fiji and Hong Kong, have all repealed the laws. The UK legalised sexual acts between two adult males in 1967. Indian activists are currently challenging Section 377 in court. So that these laws would be more of a British thing albeit from a far more conservative era. Interestingly homosexual acts remain punishable by death in several countries, including Mauritania, Nigeria, Saudi Arabia and Sudan.Even some countries which have such sodomy laws are still reluctant to discard them.Malaysia's neighbour Singapore repealed Section 377 in 2007. But retained Section 377A, which specifies a 2-year jail term, as its Prime Minister concluded Singapore was still a conservative country uncomfortable with homosexuality.One needs to be careful when comparing the Malaysian Penal Code with that of Singapore. Malaysia's Penal Code is numbered differently from Singapore's. And its provisions differ too.

As for Malaysia do not expect the repeal of these laws any time soon . If these laws are repealed then it would pose a major headache for the ruling coalition . It would prevent them from throwing sodomy charges agaist politicians deemed to be a threat.So apparently there is some use of these laws although for the wrong reasons and against the wrong persons.

Post was written by the author of this blog with some provisions extracted from http://www.malaysiabrides.com