ADEQUACY OF THE LAW OF INCEST IN MALAYSIA 

Wan Nor Dhia Assyamimi binti Meor Mohd Tarmizzi¹  

Amirul Daniel Haque bin Sazali²  

Nur Kayreen Jasmin binti Khairil Anuar³ 

Nureen Syamimie binti Idris⁴ 

Abstract  

Incest is defined as unlawful sexual intercourse between family members or close relatives who cannot marry one another, according to their respective laws, religion, and customs. Before the existence of section 376A of the Penal Code (“PC”), incest offenders were punished under the offence for rape. In view of the increasing trend in incest statistics within Malaysia, amendments to section 376 of PC that prohibit the action of incest were made for the first time in 2002. However, the number of incest cases never seemed to recede. Therefore, the objective of this article is to identify the effectiveness of section 376B of PC in curbing these incestuous problems. This study is based on the relevant statutes in Malaysia and cases of law. Another purpose of this research is also to find out how the incest laws are related to statutory rape. Based on the author’s findings, there still has been no significant decline in the number of incest cases in Malaysia even after the latest amendment in the Penal Code regarding the punishments imposed under section 376B. The data obtained in this research article is from various sources such as journals, reports, Malaysian statutes, online websites, and online databases. The authors propose massive improvements, more rigorous enforcement as well as the implementation of other additional elements, essentially in the forms of sex education and increased awareness, deemed not only required but rather a necessity, to prevent incestuous acts from occurring, as our findings have accentuated.  

Keywords: Sexual intercourse, Section 376 of Penal Code, Incest, Statutory rape. 

Abstrak 

Sumbang mahram ditakrifkan sebagai persetubuhan yang menyalahi undang-undang antara ahli keluarga atau saudara terdekat yang tidak boleh dikahwini mengikut undang-undang, agama dan adat masing-masing. Sebelum wujudnya seksyen 376A Kanun Keseksaan, pesalah sumbang mahram dihukum di bawah kesalahan merogol. Mengambil kira peningkatan trend dalam statistik sumbang mahram di negara kita, pindaan seksyen 376 Kanun Keseksaan yang melarang tindakan sumbang mahram telah dibuat buat pertama kali pada tahun 2002. Bagaimanapun, kes sumbang mahram nampaknya seperti tidak pernah surut. Justeru, artikel ini berhasrat untuk mencari tahu keberkesanan seksyen 376B Kanun Keseksaan dalam membendung masalah sumbang mahram. Kajian ini adalah berdasarkan statut-statut yang berkaitan di Malaysia dan kes undang-undang. Tujuan lain penyelidikan ini juga adalah untuk mengetahui bagaimana undang-undang sumbang mahram dikaitkan dengan rogol berkanun. Berdasarkan penemuan penulis, masih tiada penurunan yang ketara dalam bilangan kes sumbang mahram di Malaysia walaupun pindaan dalam Kanun Keseksaan berhubung hukuman yang dikenakan terhadap pelaku sumbang mahram di bawah seksyen 376B telah pun dibuat. Data yang kami perolehi dalam artikel penyelidikan ini adalah daripada pelbagai jenis sumber seperti jurnal, laporan, statut Malaysia, laman web dalam talian, dan pangkalan data dalam talian. Penulis mencadangkan bahawa penambahbaikan dan penguatkuasaan yang ketat serta elemen tambahan lain pada asasnya dalam bentuk pendidikan seks dan peningkatan kesedaran adalah perlu untuk mengelakkan perbuatan sumbang mahram daripada berlaku.  

Kata kunci: Hubungan Seksual, Seksyen 376 Kanun Keseksaan, Sumbang Mahram, Rogol Berkanun. 

Research Questions  

Some key issues that we would like to emphasise in finding reasonable outcomes for this research include: 

1. Whether Section 376B of the Penal Code is effective in curbing the incest crime?  

2. Whether incest laws relate to statutory rape? 

Research Objectives  

The research objective for this legal research is to analyse the effectiveness of section 376B of Penal Code in curbing incestuous acts as the number of incest cases in Malaysia does not seem to recede for the past few years, despite there being a law prohibiting such actions. Secondly, this article aims to know how incest laws in Malaysia could possibly correlate to statutory rape, especially seeing how the majority of incest cases are committed by family members towards the children under their care.  

Research Methodology 

The article adopts exploratory research, which is appropriate in finding the effectiveness of the amended section 376B of Penal Code. This was conducted by comparing the number of incest crimes committed pre and post-amendment. The authors used a variety of reliable sources in obtaining the data including international journal articles, reports, books and the statistical data from the Malaysian Ministry of Women, Family, and Community, whereby the data acted as the base empirical evidence in reference to incest crimes committed over time. Data was collected through analysis of documents that aligned with the study’s objective; in understanding incest law from both civil and shariah law perspectives, particularly in the scope of prohibited relationships, which may have not been explicitly mentioned by the Penal Code. Additionally, the authors also used online databases such as CLJ and LexisNexis to find incest cases and other relevant articles relating to the topic of research, as these resources were essential to source authoritative legal opinions, complied precedents, and in-depth analyses of relevant provisions. Finally, the local newspaper articles were also utilised by the authors as an approach to understanding how laws address the issue of incest and the legal mechanisms set in place within Malaysia as by analysing through them, we were able to gain real insights into public discourse, media coverage, and societal reactions to these incest cases, as well as the enforcement of related laws. These media sources were helpful in adding another layer of context, reflecting the societal and legal impacts of the Penal Code post-amendment. 

After comparing pre- and post-Penal Code amendment data, the authors aimed to draw conclusions about the Section 376B’s true effectiveness. The studies carried out essentially looked at trends over time from multiple avenues, in assessing whether the amendment had truly led to any significant changes in reporting or prosecuting of incest-related crimes. As a team, the authors have come together to carry out a conducive research that covers analyses from a thematic standpoint, by way of media reports and case laws, qualitative analysis from legal provisions and efficacy in similar cases, and also quantitative crime data aspects, to the best of their abilities. The authors hope this comprehensible overview report could contribute greatly to the discourse on incest, in the years to come.  

1.0 Introduction  

Incest is better clarified as a sexual relation between blood-related individuals, or simply put, sexual activity between family members and other distant relatives.⁵ The relations of these individuals can either exist from affinity through marriage and lineage or in a foster family context. Incest gains the interest of society due to it being a massive taboo among societies all around the globe. As an omnipresent taboo, it has unfortunately been practised ever since the uncivilised ages up till now. Despite many nations around the world having laws against incest-related acts, incest is widely recognised as one of the world’s biggest issues.⁶ Children born from incestuous relations are typically labelled as illegitimate, as no formal labelling can be put as identification of their status. Due to the complicated nature of their origins, it is challenging to formally recognise their status. As such, the purpose of this article is to look into the efficacy of the amended Penal Code particularly section 376B of the Penal Code, in preventing incest from occurring while also punishing incest offenders. This is unfortunately because incest-related crimes are becoming a recurring issue in Malaysia.⁷ Despite having laws set in place against incest, the effectiveness of these sanctions remains questionable. Recent data indicates a startling 9.5% rise in child sexual crimes in Malaysia from the year 2021 to 2022. Among the total reported case, incest ranked as the second-highest reported crime, underscoring the urgent need to address this issue.⁸ What is more concerning is that the statistics provided may only be the tip of the iceberg.⁹ Due to the basis of it being within an individual’s housing perimeter, it is often underreported and difficult to prosecute the offender, thus classifying it as a difficult crime given the complex social issues surrounding it.¹⁰ The victims typically fear abandonment by other family members once the guilty members are prosecuted. As a victim of incest, the victim experiences cycles of trauma and abuse, often both if not the other, throughout the torturous period.¹¹ Even once the offender has been prosecuted, the victim will typically continue to be judged and disgusted by others in their surroundings, at times even having the blame placed upon them themselves.¹² This is truly an undesired outcome these victims have to deal with, on top of the traumatic nightmare that they were facing and the pain they had to deal with due to the crime inflicted upon them. 

 This article aims to do so by studying the trend of incest cases in Malaysia both prior and after the amendment to the legislation addressing incest crimes to see whether there has been a noteworthy shift in the trend and to assess whether the amendment has played a significant role in reducing the number of incest cases. Additionally, this article seeks to show how incest laws are related to statutory rape by examining the language of relevant provisions as the majority of incest cases involve minors and children within the family household, and both offences involve sexual intercourse.  

2.0 Background 

Previously, the Malaysian Penal Code did not include incest in its list of prohibited sexual acts as a specific crime. Instead, any incestuous relationship, whether consensual or non-consensual, between a female under the age of 16 and a man before the incest crime was criminalised can be brought within the scope of the Penal Code under section 375. The said section 375 of Penal Code is the provision that addresses the crime of rape whereby it states: 

“A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions: 

… 

Sixthly — With or without her consent, when she is under sixteen years of age.” 

That being said, if the incestuous relationship is one that is non-consensual between a man and a woman above 16 years old, the perpetrator may also be charged under this provision as it would amount to rape.  

The justice system in Malaysia saw daylight in 1998, when the former Director of the Federal Criminal Investigation Department, Datuk Ismail Che Rus proposed to criminalise incest as a specific crime. His proposal was the first to address the rising incidence of incest rapes in Malaysia at that time and the irreversible consequences for family institutions.¹³ In 2002, incest was finally statutorised as an offence by way of amendment of the Penal Code under section 376A and 376B of the Code.¹⁴ 

2.1 Incest–related crimes 

In Malaysia, incest has long been a concern. The lack or seldomness of hearing such crimes occurring is due to it being a well-kept secret. Because incest is so secretive, it still happens behind closed doors. Victims may be reluctant to disclose such incidents due to their relationship with the offender or simply because they are unaware that their experiences are criminal in nature. The advent of COVID-19, however, has highlighted the prevalence of this “silent epidemic” among families and the silent victimisation of children. 

The principal assistant director of Bukit Aman’s Sexual, Women, and Child Investigations Division, Siti Kamsiah Hassan, has observed that there has been a rise in the number of reports of rape perpetrated by family members under Movement Control Orders (MCO). Furthermore, statistics over the past few years show an alarming increase in incidents that are published to the media—virtually every month now.¹⁵ 

For example, a 22-year-old diploma student claimed trial at the Sessions Court to two counts of committing incest with his sister, who was four months short of her 13th birthday, between January and March of 2021.¹⁶ Subsequently, a 33-year-old mother was held on three charges of committing physical sexual assault on her two sons aged 14 and 12-year-old in November 2022.¹⁷ In the same year, a 38-year-old father was accused of committing rape and sodomising his three children.¹⁸ In 2023, a 15-year-old boy was charged today with two counts of committing incest with his own sister, aged 14, causing her to become pregnant and delivered the child in a bathroom with the help of her mother.¹⁹   

2.2 Severity of Incest Within the Victim’s Context 

1. Mental Scarring 

A victim of incest, especially after repeated abuse, can experience permanent psychological damage as the memories and trauma of the ordeal become permanently ingrained in their mind. It is often claimed that incest survivors cannot ever truly escape from the abusers, whether it is physically, or mentally.²⁰ This is due to the fact that their past will always come back to haunt them, when progressing later in life or interacting with others, regardless in their love lives or in future workspaces thus resulting in them continuing to live a life full of repetitive tragedies and lacerations²¹. This is because just as they wish to forge new connections or initiate new conversations, the trauma and sadness from the past may re-emerge. The victims can also never truly heal as despite how much time has passed²², although bruises may fade and wounds can be patched, the damage that one family member does to another is incomparable in terms of agony²³.  

2. Violation of Trust and Respect 

Incest-related sexual assaults are truly a tragedy that goes beyond the norms of community guidelines. This is due to the fact that as children, it is normal for them to idolise their parental figures and seek refuge behind their siblings. From this, an automatic feeling of comfort and trust is formed towards their family members, and such as so, so does a sense of respect towards them.²⁴ Under the circumstances that one of these family members that they love chose to commit incest with the individual, a huge abrupt case of violation of trust and respect will occur as the individual will no longer feel safe being around their family’s presence and will no longer know who to trust, as well as who to go to in seeking help or refuge.²⁵ 

3. Having Hardship in Healing and Recovery 

After surviving incestuous acts, the victims tend to face difficulty in finding ease and comfort as it is never easy to deal with past trauma. It must be noted that most incest survivors develop post-traumatic stress disorder after such incidents. This disorder, although curable, is hard to overcome, and requires extensive periods of time to resolve as it deals with psychology and human behaviour. Some victims even develop suicidal tendencies²⁶as an implication in giving up on all the matters they had to deal with. Most victims find it difficult to maintain mental stability and possess a rational sense of mentality post-assault. The best approach to assist in their recovery process is indeed not entirely medical, but rather a more relaxed and un-antagonized verbal therapy.²⁷ This is to ensure no backlash within the victim’s inner conscience and prevent the development of rebellious behaviour. 

3.0 Discussions 

3.1 Relationship Between Incest and Statutory Rape  

The public may find the crime of incest perplexing as the accused person involved in incestuous acts may face charges under either section 376(3) or section 376B of the Penal Code, both of which pertain to raping someone they are forbidden to marry as outlined in the relevant legal provision. In its essence, incest shares similarities with statutory rape, particularly since a significant number of incest cases involve child or minor victims within a family institution. The comparison between incest and statutory rape arises from the similar nature of the committed acts, the types of punishments that will be faced by the accused, and the effects on the victims.  Because incest frequently occurs within families where the perpetrator is a trusted figure, ²⁸ victims in this situation may be unaware that they are being abused.²⁹ Similar to this, rape is not only done by strangers in many documented cases as people close to the victims also often commit it. ³⁰ 

Statutory rape and incest have different legal implications wherein statutory rape deals with age-related incapacity to consent while incest concentrates on particular familial prohibitions regardless of the consent. Rape, on the other hand, is primarily focused on non-consensual sexual actions, irrespective of the relations involved. The notion of consent in cases of incest bears similarities to that of statutory rape, in which consent granted by minors below a specific age is legally considered null and void.  

1. Definition 

Incest, according to the laws of Malaysia under Section 376A of the Penal Code reads as follows:  

“A person is said to commit incest if he or she has sexual intercourse with another person whose relationship to him or her is such that he or she is not permitted, under the law, religion, custom or usage applicable to him or her, to marry that other person”. 

From the above provision, it can be said that the necessary elements to prosecute someone for incest are, first, that sexual intercourse must have occurred, and second, that the act must be committed with a person whom they are legally forbidden to marry. 

Section 376(3) of Penal Code also provides for a similar kind of offence where it stated: 

“Whoever commits rape on a woman whose relationship to him is such that he is not permitted under the law, religion, custom or usage, to marry her, shall be punished with imprisonment for a term of not less than eight years and not more than thirty years, and shall also be punished with whipping of not less than ten strokes.” 

The definition of rape can be referred to section 375 of Penal Code wherein the explanation given stipulated that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. The primary distinction between the aforementioned provisions is that the former, Section 376A, specifically addresses incest, which can occur with or without consent. In contrast, section 376(3) focuses on rape, which is typically defined as non-consensual acts against the victim’s will. Even when consent is granted, section 375 outlines circumstances in which such consent may be deemed unwilling or obtained through deception.  

As for the crime of statutory rape specifically, on the other hand, is provided in Section 375(g) of the Penal Code which can be understood as:  

“An offence when a man has sexual intercourse with a woman under circumstances when she is under the age of 16 years old, whether it is with or without her consent”. 

From the above legal definition provided in the Malaysian Penal Code, we can view that both crimes are one that involve sexual intercourse.³¹ The distinction between the crime of incest and statutory rape lies in relation to the individual toward whom the act was perpetrated. The offence of statutory rape provided under section 375(g) of the Penal Code involves girl under the age of 16 irregardless of their consent. The consent is disregarded for the girl who is below 16 years old because the law presumes that these young women are not fully capable of giving proper consent. This is due to the fact that they are more likely to be susceptible to coercion and manipulation at such an age.³² Hence, for example, if a man engages in sexual intercourse with a female under the age of 16, even with mutual consent, the act will still be categorised as rape. 

Unlike statutory rape, incest can be understood as an act of having sexual intercourse between close relatives whom one is prohibited from marrying. However, the Malaysian Penal Code is silent and does not clearly delineate the specific relationships that constitute incest. In this regard, reference can be made to the Law Reform (Marriage and Divorce) Act 1976 for non-Muslims and the Islamic Family Law (Federal Territory) Act 1984 for Muslims to determine which relationships are prohibited for marriage and what actions can result in an individual being considered an incestuous offender. These legislative provisions provide essential guidance in determining the prohibited relationships and acts associated with incest under Malaysian law. 

There are three categories of forbidden relationships outlined in Section 9 of the Islamic Family Law (Federal Territories) Act 1984. The first category is individuals related to each other by consanguinity which pertains to relationships between individuals sharing a common ancestor. This category includes the mother, father, daughter, son, and grandparents on either the maternal or paternal side, encompassing all blood relatives. Secondly is a relationship created by way of affinity that arises through marriage, such as in-laws, stepparents, or stepchildren. Lastly, fosterage refers to a relationship formed when a child under the age of two years has been breastfed by a woman who is not the biological mother, designating her as the child’s foster mother. This prohibits marriage between the child and the foster mother or any foster sibling. Section 9 further stipulates that a man is prohibited from having two wives simultaneously if they are related through any of these three types of relationships. 

On the other hand, the Law Reform (Marriage and Divorce) Act 1976 specifically section 11, outlines the prohibited relationships for non-Muslims. These include relationships between blood relatives, and former spouses of relatives such as grandparents, parents, children and grandchildren. The section also includes the adopted individuals within the family. Notably, half-blood relations and the legitimacy of the child are irrelevant in this context.  

Although the crime of incest primarily focuses on the prohibitory relationships between the individuals with whom they were having sexual intercourse with, incest also takes into account the consent of the individuals involved in the act, which serves as one of its defences.³³ In other words, if a person is proven to not have consented to the incestuous act, this lack of consent can be grounds for finding the victim innocent. Nonetheless, in the event that the defence of absence or lack of consent fails to be proven, both participants in the incestuous relationship may be subjected to the punishment imposed by the Penal Code as being guilty. The concept of consent in incest law is similar to statutory rape wherein Section 376B(2)(b) of the Penal Code also disregards the consent given by a minor in committing such an act, particularly those under 16 years of age if female, and under 13 years of age if male because such minors are deemed incapable of giving consent in such acts. That being said, if the incest crime involves a minor who is within the abovementioned age, they would not be guilty of incest although it is said that they have consented to it. In the reality of today’s world, however, in most cases whereby the parental figures do in fact, abuse their position of power to subdue their children into committing incestuous acts with them, we cannot deny the fact that while yes it is incest with their biological child, yet that child is still a minor that has also been statutorily raped, whose consent is much harder to establish as it is harder to say no to your parent than to a stranger. Thus, the similarities overlap here in the consent context.  

Alternatively, an individual accused of committing incest may face charges under Section 376(3) of the Penal Code for raping someone they are prohibited from marrying. In Labuan, a man was sentenced to 22 years in prison and 18 strokes of whipping after committing incest and raping his 15-year-old stepdaughter for five years, at their home when no one was present. She was 10 years old when the rape and incest started. The man pleaded guilty and was charged under Malaysia’s Penal Code for both rape and incest under Sections 376(3) and 376B respectively.³⁴ However, it is worth noting that rape is a gender-specific offence, with only women recognised as victims under its definition in Section 375. Consequently, if the accused is charged under Section 376(3), it follows that the accused party can only be male. Nevertheless, not all male can be prosecuted for committing rape. Our law under section 113 of the Evidence Act 1950³⁵ protects male children in that sense as they are irrebuttably presumed to be incapable of committing such an offence. Section 113 of the Evidence Act 1950 states that “it shall be an irrebuttable presumption of law that a boy under the age of thirteen years is incapable of committing rape”. The legal reasoning behind this legal presumption is because the boy under the age of 13 is presumed to be not capable of having sexual intercourse and this presumption cannot be rebutted even if  he had reached the full state of puberty at such an age.³⁶ From a legislative standpoint, our point prevails on how incest offenders and statutory rapists fall along the same line, if not entangled.  

2. Punishments  

Furthermore, incest and statutory rape may be seen alike in terms of its allocated sanctions namely imprisonment and whipping. If a person is found guilty for raping a minor below 16 years old, he can be subjected to punishment for imprisonment for a term which may extend to 20 years and shall also be punished with whipping.³⁷ However, if the act happened without the victim’s consent or in the event where they are below the age of 12 years old, with or without their consent, the punishment is raised to a term of not less than 10 years and not more than 30 years of imprisonment and shall also be punished with whipping³⁸. 

Incest under Section 376B on the other hand is an aggravated rape which carries 30 years imprisonment and is also punishable with whipping. Prior to this amendment, the punishment imposed, specifically on its term of imprisonment, was actually less than what we have today. The Penal Code, prior to its amendment previously, provided imprisonment for a term of not less than 5 years and not more than 20 years for rape, and imprisonment for a term of not less than 5 years and not more than 20 years for incest. It seems that the amendment to the provisions was made to enhance the punishment for rape and incest, when it was realised that the crime of rape and incest are becoming a further threat to society, especially when it involves children³⁹. Due to its repulsive nature in which the perpetrator is related to the victim, the punishment for incest is more severe than punishment for rape, which is why it was especially crucial to consider more comprehensive legal reforms and improvements in the criminal justice system.  

Historically, the penal code’s earlier provisions, which stipulated imprisonment between 5 to 20 years for both rape and incest, were inadequate in addressing the gravity of the crimes, especially given the increasing prevalence of sexual abuse within family units. The legislative amendments thus serve not only as a punitive measure but also as a symbolic gesture, signalling society’s recognition of the escalating threat these crimes pose to vulnerable individuals, particularly minors. The escalation of punishments reflects a growing awareness that the protections offered by earlier laws were insufficient in the face of a rising tide of sexual crimes, with children being the most frequent victims. 

Overall, the amendment represents a broader trend in criminal law, where the nature of the relationship between the perpetrator and the victim is being considered as an aggravating factor. In cases of incest, the familial bond and the inherent power dynamics within such relationships exacerbate the harm inflicted upon the victim. The betrayal of trust, the emotional manipulation, and the difficulty victims often face in reporting the crime, all contribute to the rationale behind imposing harsher penalties. 

3. Effects on Victim  

In cases involving young females subjected to incest and statutory rape, it may have resulted in the profound harm inflicted upon these individuals. Such acts have far-reaching consequences that extend across various dimensions of a child’s life, including physical, psychological, spiritual, moral, and social development.⁴⁰ Moreover, these children frequently encounter a host of emotional challenges, manifesting as anti-social behaviour, mood fluctuations, depression, fear, and anxiety. ⁴¹ However, depending on the nature of the relationship with the offender, the impact may vary. When a trusted family member is involved, incest usually leaves a victim with more serious emotional scars and a deeper betrayal, which undermines the victim’s feeling of safety and trust in the family. Statutory rape, on the other hand, may have an outside perpetrator and, although causing just as much suffering, does not include the same degree of betrayal by family members, though the social stigma and personal shame are still very real. Additionally, a minor involved in an incestuous relationship with a forbidden relative may suffer more significant harm. 

1. Physical Abuse 

Physical abuse can occur in both statutory rape and incest which can result in long-term injuries and severe emotional distress. The identification of physical abuse in a child necessitates the presence of non-accidental force or an external agent resulting in injury to any part of the child’s body. This evidence can take the form of contusions, scars, or physiological malfunctions within the child’s body.⁴² Recognising physical abuse is important in addressing the well-being of the child involved. 

2. Emotional Damage 

Emotional damage which is another facet of child abuse, becomes apparent when there is observable impairment in a child’s mental and emotional well-being. This impairment may manifest as a mental or behavioural disorder⁴³, encompassing conditions such as anxiety, depression, aggression or dissociation.⁴⁴ Both statutory rape and incest may cause serious mental harm to children, including depression and anxiety. The decline in mental and emotional health is the primary similarity. While statutory rape is usually committed by an outsider abusing the trust given by the victim, incest on the other hand involves betrayal within the family, which worsens relationships and security.⁴⁵ Despite this, both have a serious negative influence on a child’s mental well-being and need for cautious support. Identifying these signs of emotional damage is imperative in providing the necessary support and intervention for affected children.⁴⁶ 

3. Sexual Abuse 

Sexual abuse entails a child’s involvement either as a participant or an observer, in any sexually oriented activity for the purpose of producing, disseminating or engaging in pornographic, obscene or indecent material, including photographs, recordings, films, videotapes or performances.⁴⁷ Additionally, it includes instances of sexual exploitation perpetrated by any individual, driven by their own or another person’s sexual gratification. Vigilance in recognizing sexual abuse is vital in safeguarding the welfare of the child and pursuing appropriate legal action against offenders. The effect of sexual abuse can be seen in that incest survivors frequently experience disruptions in their adult sexuality, which can result in earlier sexual activity, more sexual partners, casual sex, and seeking sex for money, increasing their risk of revictimization and confusing the distinction between voluntary and involuntary sexual behaviour.⁴⁸ 

Therefore, it is imperative to understand the severe consequences of both incest and statutory rape which range over physical, emotional and sexual dimensions on young females. Proper identification and acknowledgement of these abuses are crucial in ensuring the safety and recovery of affected children while holding those responsible accountable under the law.  

3.2  Effectiveness of Section 376B of the Penal Code Act 574 

3.2.1 History of Section 376B Amendments 

In the year 2002, a significant amendment to the Malaysian Penal Code marked the inclusion of incest as a criminal offence, addressing a notable omission in the prior legal framework.⁴⁹ Before this pivotal change, incestuous acts were not explicitly criminalised under the Malaysian Penal Code. Instead, those who committed incest were charged under Section 376 for rape. The case of Ismail Rasid v Public Prosecutor⁵⁰ is one of the incestuous cases prior to the amendment of Penal Code that criminalised incest. In the said case, the accused was charged of raping his own 14-year-old and 12-year-old daughter and was sentenced to twelve years in prison and three strokes of the whip as well as 15 years in prison with six whipping strokes of whipping on appeal against the sentences imposed by the trial court. In dismissing the appeal, the trial judge in that case had emphasised that the act of incest against his own daughters is the sin that can hardly be forgiven and thus the sentences imposed by reflect the abhorrence of society to such a heinous and despicable act. This is especially so because the fathers are the one who are supposed to be the role models. The pillars of strength and protection to their daughters but he is the one who shattered his daughters’ lives.  

Another case where incestuous act was charged under section 376 of Penal Code for rape is the case of PP v Pretum Singh Lall Singh⁵¹ whereby the accused person who was the respondent in that case had been accused of raping his own daughter between the year of 1995 until 1998. The respondent was acquitted initially by the Sessions Court on the ground that the medical evidence that showed the tears in the victim’s vagina was not conclusive to support the charge of rape as the doctor testified that such tears could also be caused due to masturbation. However, on appeal, the respondent was convicted by the High Court. In allowing the appeal, the High Court satisfied that there was penetration and accepted the vicitm’s submission that she had never masturbated. In passing the sentence, the judge also mentioned that it had considered the effect of the respondent’s conduct to his young daughter and the fact that she would have to live with the trauma of being raped by her own father for the rest of her life.  

Despite the commission of incestuous act could be captured within the purview of section 375 and further capable to be charged under section 376 of Penal Code for rape, it is imperative to note that section 376 had inherent limitations particularly when the act occurred between two consenting adults. Nonetheless, the legal framework recognized an exception that ensured accountability for those engaging in incestuous relationships involving a minor under the age of 16, regardless of whether the act was consensual or non-consensual. In such circumstances, the law offered no refuge to the offender. This was attributed to the protection given to minors under the law, deeming them incapable of providing consent due to their presumed immaturity of judgement. This safeguard was enshrined in section 375(g) of the Penal Code and as a result, could face a harsher punishment if the act is done without the victim’s consent.  

Upon the earliest adoption of the amendment in criminalizing incest, the Malaysian Penal Code stipulated a penalty ranging from 6 to 20 years of imprisonment, in conjunction with whipping upon conviction. However, in the year of 2014, an amendment was made to increase the punishment for imprisonment to a term not less than 10 years and not more than 30 years⁵². Tan Sri Dato’ Utama Dr. Rais Yatim, the then Minister in the Prime Minister Department, emphasised the heinousness of this crime when presenting the bill to this amendment in Parliament, owing to the nature of it being committed between very close family members who are prohibited from marrying by law, religion, and custom⁵³. As a result, such a crime cannot be punished merely by a fine but also by a mandatory custodial sentence in addition to whipping⁵⁴.  

3.2.2 Statistic on Reported Incest Cases 

The surge in reported cases of incest shows the unimaginable physical, emotional and social impact resulting from the inadequacies in our existing criminal laws. Therefore, a new amendment was made in 2017 which substituted the use of the word in Section 376B(1) from “shall also be liable” to “shall also be punished” to curb the rising incidence of such crimes.  

Table 1: Statistics of reported incest cases between 2014-2022 

Year	Number of cases
2014	304
2016	253
2017	290
2019	300
2020	259
2021	245
2022	264

The amendment to Section 376B(1) initially appeared promising, as the number of reported incest cases exhibited a decline from 304 cases in 2014 to 253 cases in 2016⁵⁵. However, this downward trend proved short-lived, as reported cases of incest swiftly surged in 2017, with a total of 290 reported cases⁵⁶. From the statistics given, it suggests that the change in the Penal Code did not succeed in lowering the crime.  

Criminologist Shankar Durairaja provided further insights, revealing that an average of 15 incest cases were reported to the police each month, with the majority of lodgements was filed by the victims themselves. He highlighted that in 2019, a staggering 300 cases were reported, followed by 259 cases in 2020 and 245 cases in 2021⁵⁷. Furthermore, between January and June 2022, the Ministry of Women, Family, and Community Development (MWFCD) recorded approximately 127 cases of incest. Later that year, Bukit Aman Criminal Investigation Department director Datuk Seri Abd Jalil Hassan confirmed that the police’s statistics indicated a total of 264 incest cases were reported in 2022⁵⁸.  

Statistics from the office of the Registrar of the Subordinate Court of Malaya showed that most victims were under sixteen years old (the legal age to give consent to sexual intercourse) when the crime was committed. Of the total cases, 83% or 276 cases involved victims below the age of sixteen. Disturbingly, fathers and stepfathers of the victims were involved in 35% or 116 cases, based on data from the judiciary⁵⁹ while the other perpetrators include uncles, siblings, grandfathers and brothers-in-law. 

It is an undeniable fact that Malaysian law has imposed stricter and more severe punishments to govern this crime compared to the previous years. Regrettably, the stricter laws imposed to punish incestuous offenders did not seem to be effective in reducing the alarming rise in incestuous crimes. This wave of revelations suggests the urgent need to deal with this deeply rooted problem in our society, which highlights the further need of underscoring reasons why incestuous acts occur in the first place.  

4.0 Findings 

Statutory rape and incest are two different crimes that society appears to have difficulty distinguishing due to the fact that they both involve sexual intercourse. The terms “incest” and “statutory rape” are often used interchangeably because the majority of reported incest cases involve children in the family household⁶⁰. Our research findings reveal that a significant portion of incest cases mostly comprises child victims, and this trend has persisted for years. It is important to note, however, that these statistics are derived solely from reported cases which reflect a concerning aspect of societal challenges.  

Delving into the research questions, our findings reveal a concerning lack of awareness among incest offenders about the existing laws in our country. Despite amendments to section 376 of the Penal Code in the years of 2002, 2014 and 2017 which aims to curb incestuous activities, there is no substantial decline in the rate of reported incest cases.⁶¹ The amendment to section 376B in particular led to more severe punishments for incest offenders. However, for cases predating this amendment, the sentencing was comparatively lenient, with offenders facing imprisonment for a term of not less than 6 years and not more than 20 years along with the punishment of whipping.  

Despite these progressively stringent measures, there seems to be a pervasive lack of public awareness regarding the gravity of incest offences and the corresponding legal consequences. This requires collective action from various stakeholders, such as initiatives from relevant government ministries, schools and specific NGOs to improve public education and awareness campaigns to effectively address this critical societal issue. 

Moreover, our research has revealed a significant distinction in the legal repercussions for consensual and non-consensual incest offenders. In instances of non-consensual incest, where sexual intercourse occurs through force that effectively constitutes rape, the punishments are distinct. Offenders involved in non-consensual incest face imprisonment ranging from a minimum of 8 years to a maximum of 30 years, coupled with a whipping sentence of no fewer than 10 strokes⁶². In contrast, consensual incest offenders are subject to more severe punishment, that is imprisonment for a duration not less than 10 years old and not exceeding 30 years, along with the imposition of whipping punishment⁶³.  

Despite the analytics, further and more thorough research must be carried out in order to enact more binding laws and regulations within the nation as the incumbent sanctions in the status quo are proven to be ineffective. The most pragmatic approach would be to directly study the factors and consequences of such acts. This matter is extremely pivotal due to its recurring state, especially on the matter of the spreading of Sexually Transmitted Diseases (STDs), such as HIV/AIDS that might infect the victims of incest-related acts. 

5.0 Recommendations 

5.1 Stricter Laws with Higher Efficacy 

As for the law, incest cases are charged and punishable under section 376B as discussed above. Although the law provided within the status quo is strict, incest cases in Malaysia are still happening and have not shown a significant decrease in recent years, as our findings have accentuated. To avoid an increasing rate of incest cases, the government has introduced a new law as a possible mode of deterrence for the offenders from committing such acts. 

As of recently, the government has introduced an amendment for a 30-year jail sentence punishment towards incest offenders⁶⁴. Having this punishment in place would warn the public of a much bigger consequence that they may possibly face, should they ever commit incest. An example for the outcome of implementing a 30-year imprisonment penalty can be seen in Brunei Darussalam, where incest and rape statistics have shown a major decrease. From 2013 to 2017, Brunei Darussalam only recorded 124 incest cases while Malaysia recorded 1,350 cases⁶⁵. This shows that a ten-year addition to the sentence is a very clinical and justified approach. These statistics could be a turning point for our country as incest will not only affect children, but also the country’s future, a crucial legacy to preserve as we pass over to our younger generations, in years to come. Although we are hopeful to reap benefits and see a constant decrease in terms of the number of cases from extending the possible jail time of an incest offender, stricter laws require consideration of other factors involved, to ensure that it is enforced efficiently. 

5.2 Sex Education 

Education is a very important component to form a complete society and most importantly a complete person. Only through proper education can we raise bona fide awareness. Countries like the United States of America have practised sex education for a long time and the outcome has shown that the citizens, especially kids, have more guarded information on sex.⁶⁶ However, in Malaysia, sex is commonly viewed as a taboo topic or a negative thing to say or discuss publicly.⁶⁷ We believe that this culture is the root of all the negligence occurring within our society in the status quo. 

The reason why sex education is very important to be exposed to society, especially children in school is because, at an appropriate age, it is indeed orthodox to learn and observe these essential things. Most incest cases happen due to the lack of information on things related to sex like pregnancy, abstinence and contraception.⁶⁸ As the youth grow to become sexually active, it is pertinent that they know it is wrong to have sexual intercourse without their partner’s consent, to be ready to hear about reproductive systems, hormones and to know the difference between healthy and unhealthy sexual or social relationships.  

Sex education could help to increase the youths’ awareness with that regard in the sense that it provides information about the consequences of unhealthy sexual relationships which might lead to HIV, and how to deal if you are tested positive. People who are tested positive for HIV or AIDS are mostly due to the lack of exposure to these consequences when performing intercourse. According to the 2013 YRBS, nationwide 85.3% of students have been taught in school about AIDS or HIV infections in the United States of America⁶⁹ and according to these statistics, it is obvious that it affected society in many ways. This has been proven since only 3% of their citizens are diagnosed with HIV compared to countries that do not implement any form of sexual education within their learning system like Lesotho and Botswana with 16% and 18% of the population testing positive for HIV respectively⁷⁰. 

Sex education is essential in today’s educational syllabus to curb this incest crisis. Although many people have negative perceptions towards it, the many benefits outweigh the possible harms. In realisation of the severity of the present-day incest issue, we as a nation should strive forward to building a healthier, better educated, and comprehensive generation in the future. 

6.0 Conclusion 

Incest is considered taboo in Malaysia as it is a heinous act that is un-relented between family members. This is because the person who is supposed to protect and love the child is the one who violates their trust and respect. In retrospect, all things considered in this research has fulfilled its objective to find the relationship between incest and statutory rape in Malaysia. The statistics show that there is no significant decline in incest cases even after the amendment of the Penal Code which raises the punishment for incest. Over the years, the victims of incest remain to be among minors and children within family households themselves. Therefore, it is imperative to equip the public with knowledge and awareness as an approach to reduce or perhaps, even entirely mitigate this problem from occurring in our country. It is of utmost importance for the government to look into this matter as not only children are affected but the entire livelihood of the youth. As a result, in reference to section 376B and the visible outcomes even after amendments, we can conclude that the sanctions and regulatory measures are not sufficient. It requires massive improvements as well as more thorough enforcement and implementation of other additional elements to prevent incestuous acts from taking place through efforts like thorough, conducive sex education, as well as stricter enforcement of law. 

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