To say it is in the best interests of an underage girl who is pregnant out of wedlock to marry the person who impregnated her is to disregard the law on statutory rape, says Joint Action Group for Gender Equality (JAG).
Statutory rape in the Penal Code in Malaysia is defined as sexual activity with a girl under the age of 16 as she is unable to understand the nature and consequence of giving consent.
JAG said society should not underplay the enormity of the crime of statutory rape by allowing or encouraging marriage to the perpetrator.
“This is a grave abuse of the law, which was put in place to protect children,” it said in a statement today.
JAG was responding to shariah lawyer Faiz Fadzil, who had in a recent article said it would be best for a minor who had become pregnant as a result of illicit sex to marry, as long as she and the person who impregnated her were agreeable to marriage.
JAG protested that the statement was damaging as it misrepresented the term “consent”, disregarded the law on statutory rape and dismissed the reality of the power imbalance that existed in cases of underage marriage.
Furthermore, JAG said Faiz’s statement that “marriage is a form of repentance for Muslims who have committed sex outside of marriage”, was an insult to the institution of marriage as defined by Islam.
“The Quran talks about marriage as a union of love and mutual respect; it does not talk about marriage as a form of repentance for illicit sex or rape.”
JAG said the reality was that such marriages were a way for the rapist to escape the criminal consequences of his action.
“In most cases of underage marriage, to which the underage party had supposedly consented, the marriage was used as a way for the rapist to avoid prosecution.
“More often than not, the parents of the rape victim also contributed to persuading the underage girl to marry her rapist to ‘cover up the shame’.”
JAG said Malaysia, as a party to Convention on the Elimination of all Forms of Discrimination Against Women (Cedaw) and Convention on the Rights of the Child (CRC), had the obligation to uphold Article 16(2) of the CRC, which prohibited child marriage.
“One of the ways to do this is to end the mindset which views marriage as a way to dissolve the crime of rape.”
Finally, JAG rubbished the notion that a child conceived out of wedlock would be more “secure” if the mother married her rapist.
“This places the burden of responsibility solely on the mother. It is time Malaysia developed a system of compulsory and accessible birth registration of all children.
“Marriage should not be viewed as the only solution for rape survivors and for the child out of wedlock to gain rights.”
Islamic Family Law in Malaysia places the responsibility for the child on the mother. The father does not have parental right over or obligation to the child.
“It is timely for the law to be reviewed considering the scientific advances in determining the biological father.
“If rape survivors were able to secure financial assistance from the father, the argument of obtaining security by marriage would then become irrelevant.” - FMT
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