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Victims Of Rape And Sodomy

Guidelines For Victims Of Rape And Sodomy

Cases of rape or sodomy have becoming common now, though law enforcement has been implemented. People need to have the knowledge to react whenever they face any incidents as mentioned. We should know what is the alleged rape or sodomy, the things that should be done and what should not be done by the victim, to who should be consulted and the role of the agencies in connection with cases like this.


(a) Image of “Stop Rape” sign
(Source: www.therumpus.net)

Rape

According to Act 574 Section 375 of the Penal Code, a man is alleged to have committed rape if he has sexual intercourse with a woman under circumstances that fall under any of the subject-matter of the following:

  1. Against the wish of the woman;
  2. Without the consent of the woman;
  3. With the consent of the woman and the consent has been obtained by him or any other person in fear of death or injury, or have been obtained by misrepresentation of facts and the man knows or has reason to believe that consent had been given as a result of these misconceptions;
  4. With the consent of the woman while the man know that he is not her husband, with the consent is given because she believes the man is a man who is or who he believes to be lawful husband or legally give consent to it;
  5. With her consent, when her consent obtained by use of its power over the woman, or on account of the professional relationship or other relationship of trust in connection therewith;
  6. If the woman is under the age of sixteen regardless of whether consent is given.

Among the examples of rape are:

  1. “Acquaintance rape” or raped by an acquaintance is broadly defined as any situation where the necessary elements of the crime of rape are fulfilled (to force a woman to have sex against their will and without her consent) and the rapist and the victim know each other.
  2. “Statutory rape” is sex with a girl under the age of 16 even with the consent of the girl. This is because girls under the age of 16 years cannot make their own decisions on the law.
  3. “Gang rape” or group rape is sexual violence involving two or more assailants against the victim.

Sodomy

Under sections 377A and 377C Act 574 of the Penal Code, sodomy is:

377A: Sexual intercourse against the order of nature that is any person who commits sexual intercourse with another person by inserting his penis into the anus or mouth of another person is alleged to commit carnal intercourse against the order of nature.

377C: Whoever is wilfully commits carnal intercourse against the order of nature rule over another person against their will or against his will or by putting the fear of death or injury to that person or to any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.

Do’s and Don’ts for Victims of Rape and Sodomy

  • Things that MUST be done by victims of rape / sodomy:
    1. Don’t be stressed out and blame yourself
    2. Go to a safe place and tell people you trust.
    3. Make a police report
    4. Go for medical examination as soon as possible, preferably on the same day.
    5. Immediate examination by a physician is important to obtain strong evidence against the offender.
    6. Get professional help to deal with feelings, your safety and health.
  • Things should not be done if you are raped / sodomized:
    1. Don’t wait more than 48 hours prior to consult a doctor or go to police.
    2. Does not take a shower before the examining physician.
    3. Don’t change clothes.
    4. Don’t brush your teeth.
    5. Do not eat or drink.
    6. Don’t go alone. Be sure to go with the people you trust to doctor or police.

The role of Forensics in the handling of victims of Rape / Sodomy

  1. Ensure correct specimens taken and collected with proper techniques for forensic analysis.
  2. Ensure that all potential evidence taken.
  3. Ensure that samples taken with the right techniques and stored in the manner stipulated that no risk of contamination of samples.
  4. Ensure samples are kept so that they reach the laboratory in the best and optimal conditions.
  5. Provides the information required by the relevant laboratories for the purpose of interpretation of the results obtained.
  6. Provides Forensic Clinical examination report for the purpose of enforcement of the law by the authorities.

Consent / Permission of the Victim

Before any examination can be performed, the Forensic Medicine Specialist will explain to the patient in detail examination process so that it is understood by the victim. Consent from the patient must be obtained voluntarily and without coercion, as long as the patient is not under the age of 18 and have the ability to think to make a decision. Victim has the right to be accompanied by a guardian or people whom is trusted or an attorney during the examination is carried out.

Forensic Clinical Examination

Forensic Clinical Examination begins with a physical exam will be done once the victim was taken to the Hospital Emergency Unit. If the rape, the victim will be referred to a specialist in Obstetrics and Gynaecology hospital for examination and sampling.

For sodomy cases, the victims will be referred to a Surgeon in the Department of Surgery hospital for examination and sampling. Forensic experts will be consulted only if there are bodily injuries.

Forensic Clinical examination is to obtain evidence from certain parts of the body as below:

The Sampling Area

Forensic Evidence

Swab on the outer lips Detection of body fluids in the skin around the lips and mouth for example, semen or blood stain that was not from the victim.
Swab in the mouth Traces of seminal fluid if oral sex applicable during a period of 72 hours. A swab is taken if there is a history from victim, although have been brushing teeth or eating in the period.
Swab the skin of the body. Detection of body fluids on the surface of the skin such as semen, saliva or foreign blood stains during a kiss, lick or bite. Swabs taken within 72 hours.
The hair on the head and pubic fur.
  • The techniques of “Hair combing”
  • Detection of semen fiber detection, impurities, foreign hair.
The technique of “Hair Plucking / Cutting” created by plucking the hair on the head and pubic hair to serve as control samples for microscopic comparison of hair.
Panties and sanitary pad. Detection of semen on the sanitary pads and panties worn after the event if victim is still wearing the same panties or underwear.
Swab on the inner part of the genitalia. Taken on the vulva, the top and bottom parts of the walls of the vagina and endocervical for liquid detection if penetration through the vagina or anal intercourse within 72 hours.
Swab on the outer part of the genitalia. Taken in Mons pubis area only if there are no pubic hairs found, then at perineum for the detection of body fluids such as semen, saliva, blood, which is probably not from the victims in 72 hours.
Swab on the penis Detection of body fluids if intercourse happened within 72 hours.
Swab on the perianal and anal. Detection of body fluids if vaginal or anal intercourse within period of 72 hours.
Nail Scrapping done if the victim made a scratch onto the attacker or there is blood traces on the victim’s nail. Obtain trace of evidence for body fluids, fiber, blood or impurities.
Blood
  • DNA analysis using the FTA card and using Blood EDTA tubes in the absence of FTA card.
  • Detection of alcohol and drug abuse taken within 72 hours after the event.
  • Serology analysis for HIV testing and sexual transmitted infection.
Urine
  • The detection of alcohol and drug abuse where there is a history of the victims be given a drink or a meal before the incident. Taken within 120 hours after the incident.
  • Pregnancy test.
  • Analysis of urine culture to identify the genital infections.

Evidence obtained from the Forensic Clinical examinations and forensic analysis can prove the conviction of perpetrators of a rape or sodomy case. Offenders can be sentenced for rape under Section 376 Act 574 Penal Code. While under Section 377B, Act 574 of the Penal Code, a sodomy offence can be sentenced for committing carnal intercourse against the order of nature.

Non-Governmental Organisation (NGO)

Women’s Centre for Change (WCC) is providing emotional support to help rape victims deal with her physical and psychological trauma as well as court support should the case go to court. WCC is a non-profit organisation that is committed to eliminate violence against women, empower women and children as well as promote gender equity and social justice.

References

  1. Laws of Malaysia, Act 574, of the Penal Code (Amendment 2014)
  2. Recent Rape / Sexual Assault: National Guidelines for Referral and Clinical Forensic Examination in Ireland 3rd edition 2014.
  3. The Merrill D. SMITH, Encyclopaedia of Rape, 2004, London.
  4. Standard Operating Procedure OICC, to be published.
  5. WCC website (http://wccpenang.org/violence-against-women/rape/)
Last Reviewed : 8 September 2015
Writer : Hafiz bin Rommali
Accreditor : Khoo Lay See