‘Incest victims should also sue perpetrators using civil law’
FOR the trauma they had to endure, incest victims should also sue their perpetrators using civil law.
Malaysian Bar immediate past president Salim Bashir encourages victims to pursue civil tort actions (a civil wrong that causes a claimant to suffer loss or harm) against their perpetrators.
“This will enable them to seek compensatory damages for emotional and physical injuries
including any psychological treatment costs, medical expenses and lost wages,” he elaborates.
While criminal laws may provide crucial deterrent effects, it does not adequately compensate the victims for the tremendous psychological injuries they suffer, adds Salim.
“Child incest victims often suffer from host of psychological disorders that inhibit them from seeking legal relief for past traumatic experiences until they reach adulthood.
“As such, time limitations to bring in civil suits should be expanded and made exclusive to sexual victims taking into account the psychological reactions,and childhood ignorance of rights under the law,” he points out.
Salim, a senior criminal lawyer, says there are cases where victims or their family members retract complaints against the accused, but it does not mean the court charges will be withdrawn.
“The prosecution has discretion under the law to decide on continuing the charge.
“But the stumbling block that awaits prosecutions will be the risk of non-cooperation of victims to testify against the accused person in court,” he says.
Currently, under Section 376B under Penal Code, those who commit incest shall be punished with a jail term between 10 and 30 years, and shall be liable to whipping.
But Salim believes that harsher sentencing alone cannot deter incest, and the punishment for the crime under the Penal Code is sufficient.
“The offender must be orientated to turn over a new leaf by inculcating religious and spiritual
rehabilitation in prison.
“There must be programmes after the convict is released from prison, like follow up counselling and religious teachings while giving them opportunities to change in our society.
“Prolonged detention and incarceration from society will not help one to change and better a person,” he adds.
For the victim, Salim acknowledges it can be nerve-racking to testify in court, and more so for incest victims who have to stand witness against the perpetrator.
“Malaysian Courts have taken positive steps to alleviate the concerns of child victims by introducing special courts with guided protocols when child victims give evidence.
“The prosecution can request for victims to be shielded from the view of the accused or request for in camera proceedings (private proceedings) to minimise the victim’s trauma in narrating the crime,” he explains.
Selangor Bar chairman Kokila Vaani Vadiveloo says many victims may have opted to withdraw their report due to social stigma but at the end of the day, it is still up to the prosecution on whether they want to proceed with the case.
“The dynamics of such cases are usually where the victims are young children who are either threatened or manipulated into silence, while parents may not be trained to recognise signs of sexual abuse in children,” she says.
With incest increasingly being recognised as a delicate problem in Malaysia, Kokila hopes that more investigation officers, lawyers and judges will have a better understanding on how to handle incest cases.
“Given the nature of such cases it is critical that the pool of judicial officers is provided with the necessary training to be equipped to hear such matters.
“Seeing the severity of the crime, courts have been determined in handing down deterrent sentences to offenders,” she says, citing a recent case of a man being sentenced to 1,050 years and 24 strokes of the cane for incest by the Klang Sessions Court.
Kokila adds that the court can also hand down community service orders, counselling, compensation orders, police supervision and enable perpetrators to be put under good behaviour bonds.
“The fear of being discriminated against has hindered the victims from seeking help.
“Adult victims of incest may not connect problems they are currently experiencing with their abusive history, rendering self disclosure unlikely.
“Efforts to promote disclosure must be supportive and relevant to the victim’s age and the setting in which the society the victim lives in,” she urges.