Incest Law in Malaysia

Incest is one of the social evil that demolish the family institution and is a threat to public as
well. By definition, incest means a sexual relation between people who are closely related to
each other that they are forbidden by law to marry, either within the degree of consanguinity
or affinity. Section 376A of the Penal Code defines incest as the sexual intercourse of people
whose relationship to him or her are not permitted under the law, religion, custom or usage, to
marry that other person. However, this definition of incest under Penal Code is rather vague
to explain what kind of relationship does amount to the offence of incest.

According to Section 11(1) of Law Reform (Marriage and Divorce) Act 1976, no person
shall marry his or her grandparent, parent, child or grandchild, sister or brother, great-aunt or
great-uncle, aunt or uncle, niece or nephew, great-niece or great-nephew. However, this
subsection does not prohibit Hindu from marrying his sister’s daughter (niece) or her mother’s
brother (uncle) under their Hindu law or custom. The sexual relationship between adoptive
child and adoptive parents is also prohibited under Section 11(4) of Law Reform (Marriage
and Divorce) Act 1976. In Section 11(2) and (3) of the same act, it states there that no person
shall marry their spouse or former spouse’s parents, grandparents, child, or grandchild.

Meanwhile, for the Muslims, the prohibited relationships are listed under Section 9 of
the Islamic Family Law (Federal Territories) Act 1984. Section 9(1) states that no man or
woman on the ground of consanguinity shall marry their parent, grandparent of both sides,
grandchild, sibling (either full-blood or half-blood), nephew or niece, and aunt or uncle of both
parents’ sides. On the ground of affinity, no man or woman shall marry his or her parent-in-
law, step-parents, step-grandparent, daughter-in-law or son-in-law, and step-child, as stated
in Section 9(2) of the Islamic Family Law (Federal Territories) Act 1984. In Section 9(3) of the
same act state that on the ground of fosterage, no man or woman shall marry any man or
woman who are connected to them through the act of suckling.

Malaysian Penal Code through Section 376B has laid down the punishment for incest,
which is Imprisonment for not less ten years and not more than thirty years, and the offender
shall also be punished with whipping. However under the same section, there are two
defences available to it. If the parties involved in the sexual intercourse did not know they are
related and not permitted under the law, religion, customs or usage to marry each other, or
the act of incest is not done without his or her consent, then they shall not be charged. In
extend to that, the law presumes that a female under the age of sixteen years old while thirteen
years old for male, shall be deemed to be incapable of giving consent. Lack of consent is the
main element to prove that one is guilty for rape, meanwhile for incest, the lack of consent can
help one not to be charged for the offence. The only crucial factor for incest is just the
relationship between the victim and the perpetrator.

The general punishment for rape under Section 376(1) of the Penal Code is
imprisonment up to twenty years and shall be punishable with whipping. This shows that the
punishment for incest is heavier if compared to rape. Why? It is because the victim and
perpetrator are related to each other. However, under Malaysian law, if there is no penetration
involved, then it does not amount to incest. This means that molestation and sexual assault is
not included. But luckily, police are now working with the Ministry Women, Family and
Community Development to enhance the government policies of regarding women and
children, for example, they played an important role behind the new Sexual Offences Against
Children Act 2017. Victims also can report any sexual abuse cases directly to the hotline of
Talian Kasih 15999.

A person can be charged for both incest and statutory rape at the same time. Both of
this offences can overlap under certain scenarios. For example, when a father had consented
sexual intercourse with his daughter who is under 16 years old. The family relationship
between them is what makes it classified as the offence of incest. Meanwhile, the act of having
sexual intercourse with a girl aged under 16 years old does amount to statutory rape. However,
the law regarding rape is gender specific. If a female family member had sexual intercourse
with a male under 16 years old, they will only be convicted for the offence of incest. It does
not amount to statutory rape as rape is only applicable for female victims only.

In the case of PP v Jackki Zainudin [2009] 1 LNS 1778, the respondent was charge for
raping his own 15 years and 8 months old sister at the material time. The respondent pleaded
guilty and was charged with 3 charges by the learned Sessions Court Judge. First charge is
11 years imprisonment, second is 12 years imprisonment and third is 13 years imprisonment
and 10 strokes of whipping. The responded was allegedly persuaded the victim into having
sexual intercourse with him. Although there might seem that the element of force or coercion
is absence, but the fact that the victim is under 16 years old does constituted rape as according
to Section 375(g) of the Penal Code.

Based on the statistics of incest cases from News Straits Time, the relationship
between perpetrators and victims that recorded the highest number of is the case of a father
in 2016, with a number of 84 cases in total, followed by stepfather (66), brother (42), uncle
(36) and so on. In the same year, Sabah recorded the highest number of incest cases with 57
cases in total. Selangor recorded 35 cases, Johor with 33 cases, while Kedah with 27 cases.
Perhaps the reason why Sabah and Selangor recorded high number of cases is due to large
number of population of those states.
 However, there are so many other cases of incest that is actually happening but it
remain unreported. One of the reason behind it is due to the social stigma, where they think
that nobody would believe them. They also want to protect the good name of their family.
Some victim might already told the story to their mother, but their mother will ask them to
remain silent about it as the mother want to cover-up her husband. Other than that, the cases
are unreported because the victim are too scared to open up about it because they feel
embarrassed of it. The victims also might get threaten by the perpetrator as they are being
controlled by them. For example, the victim is fully dependent on the perpetrator financially.
The afraid they will have no more financial support once they reveal the truth. Some
perpetrator might warn the victim saying that if the victim told other people about it, the
perpetrator will beat the victim to death.

One of the tragic case of incest reported in Malaysia is a case of a divorced 36-year-
old man might be imprisoned for 12,000 years if the is found guilty for more than 600 charges
of rape and other sexual assaults against his daughter, who is a teenager. It took two days for
the Kuala Lumpur court officials to read out all 646 charged against him. Along sixth month
period when the girl live with him, the allegedly has performed 599 counts of sodomy, as well
as counts of incest, rape, and other sexual crimes to his 15-year-old daughter. The man was
arrested after the girl’s mother lodge a report. For each charge of sodomy, the defendant is
punishable to imprisonment for a maximum term 20 years and whipping. For rape, he is
punishable for maximum sentence of 20 years imprisonment and punishable to up to 20 years
in prison for each of the 30 charges of sexual assault.

Among other cases that happened in Malaysia include a 18 year old boy who molested
all of his three sister aged eight, nine, and fourteen, and raped two of them. Next is a case of
a 26-year-old mechanic who impregnated his 14-year-old daughter, and also a case of two
teenage sisters who were raped by their father, grandfather, as well as two uncles. One of the
teenage sister is pregnant.
 References

C., D. (2018, July 23). How are incest laws in Malaysia related to statutory rape? Retrieved from

https://asklegal.my/p/what-exactly-does-malaysian-law-say-about-incest-and-statutory-rape

Roberts, R. (2017, August 10). Man faces 12,000-year prison sentence for more than 600 counts

of raping his daughter. Retrieved from

https://www.independent.co.uk/news/world/asia/malaysia-kuala-lumpa-man-facing-12000-

years-prison-rape-incest-daughter-sexual-assault-a7886536.html

Satar, A., Datuk. (n.d.). Rape within the family: The silent problem. Retrieved from

http://www.focusmalaysia.my/Columns/rape-within-the-family-the-silent-problem

Shahrudin, H. S. (2017, June 30). Incest Numbers Worrying. New Straits Time.