Incest, despite being generally accepted as a deviation from the norm of conventional sexual behaviour, continues to fill the news with reports of such biological wrong. As a country proud of our strong ethics, this evil crime must be combatted in Malaysia to help present and future victims.
On 28th July 2017, a shocking report by the New Straits Times revealed that a girl was raped by five of her own relatives at various locations in Limbang, Sarawak. The accused were the victim’s own father, grandfather and three other relatives aged between 16 and 72 years old. Consequently, they were charged under S.376B for statutory rape which provides for a maximum of 30 years’ imprisonment and whipping upon conviction. 
Unfortunately, such abhorrent news is merely the tip of the iceberg. According to a report by the Women’s Aid Organisation (WAO), a total of 296 cases of incestual relationships were reported in 2017. Amongst those, 115 of them involved children between the age of 13 to 15, while 8 other cases concerned the youngest age group of 6 years old and below. Children have been the victims of a majority of these reported cases, with 376 culprits being their trusted family members. As grave as the statistics may be, it nevertheless fails to depict the severity of this issue as consensual incest relationships are largely unreported, even when uncovered by another family member, in fear of the humiliation it will bring to the family name. This article intends to shed some light on Malaysia’s thorn in the flesh — incest, by analysing the relevant statutory provisions and suggest steps to effectively combat it.
II. WHAT IS INCEST?
Under S.376A of the Penal Code, the crime of incest is the act of having sexual intercourse with a person whom an individual is not permitted to marry under the law, religion, custom or usage applicable to them. In layman terms, incest is the practice of sexual intercourse between persons so closely related by blood that a legal marriage could not take place between them.
According to the New World Encyclopaedia, there are three types of incest. First, parental incest, which is generally regarded as a form of child abuse involving parents and children of either sex. Second, sibling incest which usually occurs consensually between siblings of similar age due to curiosity and experimentation of the body. Third, sexual relations between cousins and other distant relatives.
III. THE LEGAL STANCE OF INCEST IN MALAYSIA
The crux of incest under S.376A lies on the element of whether the perpetrators are permitted to marry under the law or religion — in which a prohibited relationship is distinctly characterised under them. Hence, it is important to take cognizant of what amounts to a prohibited relationship for Muslims and non-Muslims under the law.
A. Muslim Marriages
There are three types of prohibited relationships, as enshrined in S.9 of the Islamic Family Law (Federal Territories) Act 1984, namely — consanguinity, affinity, and fosterage.
S.9 of Islamic Family Law (Federal Territories) Act 1984 further states that a man is prohibited to have two wives at the same time, who are related either from these three grounds of relationship. Additionally, if one of the wives is a transgender woman, a relationship of marriage in that instance would have been against the principles of Shariah in Islam.
B. Non-Muslim Marriages
On the other hand, S .11 of the Law Reform (Marriage and Divorce) Act 1976 sets out the prohibited relationships for non-Muslims, namely, the relationships between blood relatives; former spouses of relatives such as grandparents, parents, children and grandchildren; and persons adopted into the family. In this section, half-blood relations and legitimacy of the child are immaterial as the fact remains that the child is a relative. Conversely, this prohibition can be exempted with the Chief Minister’s permission. The Chief Minister may grant a marriage license to validate the relationship if such relationship is not objected by the law, religion, custom or any usage applicable towards the parties involved.
As far as sanctions are concerned, S.376B(1) sets out the punishment for the offence of incest under which, if convicted, a person shall be imprisoned for a term of not less than ten years but not more than 30 years, and shall be liable to whipping. Although incest falls under the same offence, the punishment imposed depends on the degree of notoriety of the offence committed. This can be seen in Sanusi Mat Karto v PP where the appellant was found guilty for raping his 12 year-old granddaughter and was jailed for 15 years. Comparatively, a harsher punishment which involved both imprisonment and whipping under S.376B(1) can be seen in Ismail Bin Jali v PP, where the appellant was found guilty of two charges — raping and molesting his daughter. The first charge brought upon 20 years of  [pq4] imprisonment and 10 whipping, while the second charge 12 years imprisonment and 6 whippings.
Severe sentences are meted out in rape cases involving the element of incest, regardless of the  background and age of the offender . Imposition of long-term imprisonment is often seen as the best approach as it prevents interference with the victim’s life by the accused (family member). A harsher punishment is symbolic as it portrays incest as a notorious crime and reflects the abhorrence of society towards its heinous and despicable nature. Through this, an impactful message will be sent out to the potential predators that the judicial system will not hesitate to impose strict sanctions to safeguard the interests of children.
Furthermore, repeat offenders may receive enhanced punishment to deter the spread of incest. Such was seen in the case of PP v Ahmad Osman, where the High Court allowed the appeal to enhance the sentence of imprisonment to 30 years for three counts of rape and one count of attempted rape on his own daughter. This increase in sentence was done pursuant to the distinct offences’ principle and totality principle where it requires a judge — who is sentencing an offender for a number of offences — to ensure that the aggregation of the sentences is a just and appropriate measure of the total criminality involved. In addition, the welfare of the victim is another deciding factor for the degree of punishment received by the accused. Further, the age of the victim, the extent of violence involved, the existing relationship between the victim and the accused, as well as the mental and physical state of victim are among the elements in enhancing the sanctions given to the offender. Although it may seem like there is a blanket prohibition for incest, there are two circumstances which can act as a defence to the charge of incest under S.376B(2) of the Penal Code.
First, where it is proven that the accused was unaware of his or her relationship with the person with whom the accused engaged in sexual intercourse. The rationale being that the requisite element of mens rea (criminal intent) to establish a criminal offence is absent.
Second, where there is no consent to sexual intercourse. Consent plays a major role in deciding whether the victim is innocent of the charge of incest. Without consent, a person is a victim of rape under S.375 instead of an offender of incest. It has to be noted that the explanation under S.376B states that a female and male who are under 16 years old and 13 years old respectively are incapable of consent. In this context, a person having sexual intercourse with a minor will still be regarded as committing statutory rape regardless of consent. For instance, a minor charged for incest with her father can claim that consent was not given to the incestual conduct. In this context, the charges will not be on incest but rape instead. However, if the situation occurred consensually and the daughter is capable of consenting, the defence will fail.
IV. COMBATING THE EVIL OF INCEST
Incest is a product of the lack of comprehensive discussion on sexuality, as conventional wisdom in Malaysia dictates that it is indecent to talk about the taboo of sex. This is deeply influenced by the traditional values such as sexual conservatism embedded in our cultures and religions. However, the society needs to understand that discussions on sexuality go deeper than one’s fetishes. Open discussions on issues such as consequences of having sex with a close relative, and demystifying misconceptions about sex is highly required. Such topics should be integrated into our sex education as the primary mechanism in combating incest.
Additionally, the scope of sex education in schools is severely limited. In fact, the youth are only exposed to sex education via science subjects at secondary school level. Even then, it focuses on the human’s anatomy, reproductive systems, contraceptive methods and diseases contracted through sexual intercourse. The loophole in the education system should be amended to include the moral aspects of sexual relationship, and more importantly methods in dealing with sexual advances from other people.
Knowing the appropriacy of intimate contact is important to distinguish the boundaries in a relationship. Children, in general, should be able to differentiate the types of intimate advances that are out of the norm to protect themselves from being taken advantage of. In order to safeguard children from any inappropriate sexual advances, sex education should be a mandatory subject in school. This is where sex education plays a significant role. Armed with the ability to differentiate between right and wrong, children can report to a trusted person — be it a parental figure or a teacher at school — if forced to perform any illicit acts.
Regardless of the number of steps taken to prevent the evil of incest, punishment nevertheless holds the key in regulating the conduct of society. Stricter sanctions should be imposed as incest still continues to be committed despite criminalisation — evidenced by the domestic cases of incest in Malaysia. Referring to the aforementioned cases, it is established that punishment can be an effective medium to act as a deterrence for the crime of incest. Moreover, it is pertinent to provide rehabilitation to convicted offenders. To prevent repetition of crime, treatments in the form of counselling and medication should be provided to convicts during their term of imprisonment.
Last but not least, the main contributor in the rise of incestual conducts is arguably the lack of incentive for children to report. Children at a young age are undoubtedly dependant on their parents, especially in terms of finance. Some children may believe that they are obliged to endure the sexual abuse to protect the well-being of their family — which may be compromised if the breadwinner who committed the crime is reported to the authority. As an incentive to report, it is important to assure children that they will be taken care of by providing them with a safe space or shelter after reporting the crime. For example, a few organisations that provide help for victims of sexual abuse are Shelter Home for Children, Women’s Aid Organization, and Protect and Save the Children.
The legal environment in Malaysia concerning the issue of incest is developed as per the existence of S.376A and S.376B of the Penal Code. However, the rapid increase in reported incestual cases raises eyebrows that incest cannot be curbed merely by promises of harsher punishments. It is crucial for us to improve the current state of affairs in Malaysia with copious steps. The stigma surrounding sexual behaviours should be addressed first in order to provide a suitable environment to discuss effective solutions targeted at ending incest. Consensual incest or not, know the boundaries of your love as the evil of incest ought to be weeded out from the garden of our lives.
Written by Nurul Afiqah Sapiee, a first-year law student. Edited by Celin Khoo Roong Teng.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 Penal Code (Act 574) (Malaysia) S.376A.
 "Incest. Merriam-Webster Dictionary. <https://www.merriam-webster.com/dictionary/incest>. Site accessed on 13 Nov 2019.
 “Incest”, New World Encyclopaedia. <https://www.newworldencyclopedia.org/entry/Incest>. Site accessed on 5 Nov 2019.
 Islamic Family Law (Federal Territories) Act 1984 (Act 303) (Malaysia) S.9.
 See footnote 8, S.9.
 Law Reform (Marriage and Divorce) Act 1976 (Act 164) (Malaysia), S.11.
 See footnote 5, S.376B(1).
  7 CLJ 236.
  1 LNS 656.
 Jal Zabdi Mohd Yusoff, Zulazhar Tahir, Norbani Mohamed Nazeri, “Developments in the Law Related to Rape and Incest in Malaysia”, Proceedings of the Inaugural University of Malaya Law Conference: Selected Issues in the Development of Malaysian Law, 2008. (University Malaya: Faculty of Law), 200.
 See footnote 14 at page 197.
 See footnote 14 at page 198.
  1 CLJ 66.
 Totality Principle. National Judicial College of Australia. <https://csd.njca.com.au/principles-practice/general_sentencing_principles/totality_principle3/>. Site accessed on 27 Jan 2020.
 See footnote 14 at page 201.
 See footnote 5, S.376B(2).
 See footnote 5, S.376B(2).
 Mens rea. Legal Information Institute, Cornell Law School. <https://www.law.cornell.edu/wex/mens_rea>. Site accessed on 12 Nov 2019.
 See footnote 5, S.375.
 See footnote 5, S.376B.
 Asmida Ahmad, Nur Fazini Asro, “Consensual Incest: The Legal Environment in Malaysia”, (2017) International Journal for Studies on Children, Women, Elderly and Disabled, Volume 1, 13
 Refer to footnote at 25.
 Refer to footnote 25.
 Refer to footnote 25.
 Refer to footnote 25.
 Mohd Idham Mohd Yusof, Nasreen Miza Hilmy, Hazariah Yais Razali, “Social Stigma of Incest in Malaysia”, International Academic Research Journal of Social Science 1(2), 2015.
 Shelter Home for Children. <http://www.shelterhome.org/index.cfm?&menuid=10>. Site accessed on 14 Nov 2019.
 Women’s Aid Organization. <https://wao.org.my/our-services/>. Site accessed on 14 Nov 2019.
 Protect and Save the Children. <https://www.psthechildren.org.my/programmesservices.html>. Site accessed on 14 Nov 2019.
28/1/2020 07:05:34 pm
yas you go glen coco
9/11/2022 01:30:58 pm
can i have a pdf version of this article ?
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