The Kuala Lumpur & Selangor Chinese Assembly Hall Women Section call for a revision on the recent Court of Appeal decision where a perpetrator charged for rape under the Penal Code was released scot-free. The Women Section also urges the government to improve on the provisions of the Penal Code in particular the definition of rape.
The Court of Appeal’s decision dated 7.5.2015 in respect of Bunya Jalong (“the accused person”)’s acquittal has caused an uproar amongst the society and raises this question “How could he who impregnated a 15 year old girl gotten away with such heinous act?”!
Based on the statement made by the accused person’s lawyer, Bunya’s defence was that the victim masturbated him until he ejaculated. The accused person alleged that the victim was pregnant because he inserted his semen-smeared finger into her vagina. Since his penis never penetrated the vagina of the 15 year old victim, rape had not occurred. His evidence was supported by a obstetrician who testified on behalf of the prosecution that pregnancy could occur if freshly ejaculated semen laden with sperm is inserted vide a finger into the vagina.
The prosecution had failed to call several material witnesses thus had failed prove the case beyond reasonable doubt. It is a known fact in the legal fraternity that it’s easy to allege rape but difficult to prove the same to secure a conviction. In Bunya’s case, the prosecution should have assessed the evidence very carefully before preferring charges. Putting aside technicalities, Bunya has admitted that he sexually abused the victim by inserting his finger into her vagina. This was clearly an act of using criminal force to outrage modesty under section 354 of the Penal Code, or sexual abuse under section 17(2)(ii) of the Child Act 2001.
The Women Section note with regret over the Deputy Solicitor General (I)’s statement to the press on 13.5.2015 where he had said that the Attorney General’s Chambers has accepted the decision of the Court of Appeal and there will be no further appeal since the Court of Appeal is the apex court for cases that originate from the subordinate court.
With all due respect, the AGC should have filed for a revision especially the present case is of public interest. The AGC must send a strong message to the public that we will never condone such actions. Bunya may have gotten lucky because insertion of his finger into the victim’s vagina does not constitute rape in the context of the Penal Code. He is a paedophile and his act was sexual abuse nonetheless. His rightful place is in the prison.
Bunya’s case clearly reflect the flaws and inadequacy of our system. As such, we urge the authorities to re-visit the Penal Code to provide a wider definition with regards to rape i.e. to include the insertion of any foreign objection into the vagina against the will of the victim.
Beside asking for the Attorney Chambers to ensure better and higher quality of prosecution, we also called upon the enforcement agencies to take cognizance of the Child Act 2001 and to be better equipped with the provisions therein to accord better protection of children from sexual abuse. Any child who is used for sexual purposes by an adult, is, by definition, a victim of sexual abuse and must be protected and supported. This is consistent with the spirit and intent of the Child Act 2001.
Chairlady of Women Section of KLSCAH
Ng Geok Chee