Man Escapes Rape Charges Of A Minor Who Conceived His Child Because He Used His Finger

A Sarawak state minister has urged the federal government to amend the Penal Code to allow a wider scope for the definition of rape, following a 60-year-old man’s acquittal of raping a minor.

State Welfare, Women and Family Development Minister Datuk Fatimah Abdullah said the current definition of rape is confined to penile penetration and does not consider the use of any other body parts or objects as contributing to the offence.

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“We feel that there is a need to amend the Penal Code 375 for the Malaysian Courts to give a more liberal interpretation of the definition of rape especially when the victim is a child," said Fatimah.

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She urged parliamentarians to echo the call and push for amendment so that there won’t be a repeat of this ‘finger rape’ loophole, which did not constitute ‘penetration’ under the current definition.

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On Sunday, a rally pressuring the Government to amend rape laws was held at Friendship Park, Sarawak and attended by hundreds.

Representatives from 28 non-governmental bodies took part in the rally, ranging from members of SWWS, the Kuching Division Journalist Association, Malaysian Institute of Architects, Sarawak Mental Health Association, Rise of Sarawak Efforts and Sarawak Dayak Graduates Association.

Also present were members of SUPP, PKR and PBB.

The mother of a teenage girl impregnated by the semen-stained finger of a 61-year-old man today pleaded with a state minister for justice, during a “Walk Against Rape” rally held at Friendship Park here today.

The woman today spoke out against the man’s acquittal by Court of Appeal on May 7.

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Appealing to Sarawak Minister of Welfare, Women and Family Development Datuk Fatimah Abdullah, Rosmiati ( mother of the victim ) expressed incredulity over the court’s decision to find it unsafe to convict the man.

“Please do something to help my daughter. She is a victim of rape... no doubt about it.

“In my over 50 years, I have never heard a woman get pregnant when a finger is inserted into a vagina,” she said.

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Fighting back tears, she revealed that 60-year-old Bunya, met the victim, who was then 14 years old, through her.

“He was my colleague (working) under me. He was just a boat operator. On Fridays, he transports school children. It was during that time he met students. He gave them food, drinks...." said the grandmother, an Iban Muslim convert from rural Oya River.

“I don't like this type of people. He is not a human being. He is an animal. His ways are like that of an animal,” she told the rally.

The victim’s mother made clear that she understood details of the judgment but felt justice had not been served for her daughter.

She believed the accused was coached on what to say in court to get himself off the hook based on the wording of the law.

“All I ask for is help from all of Malaysia, from anyone who does not want to experience what happened to my family,” she said while appealing for advice on how to get justice for her daughter.

On 14 May, Deputy Solicitor General (I) Datuk Tun Abd Majid Tun Hamzah said “Since it is the final Court of Appeal (apex court) for cases that originate from the lower court, there is no further appeal. The Attorney-General’s Chambers (AGC) has maintained the policy of not filing a review,” he said.

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Advocates Association of Sarawak president Leonard Shim asked the Attorney-General’s Chambers to consider the possibility of reviewing or proffering other charges on Bunya for his alleged actions under the Child Act 2001 or the Penal Code.

Bar Council criminal law committee co-chairman Salim Bashir, however, said “If in the course of his trial, another charge was proffered against Bunya, it would be acceptable. If he was to face different charges after his acquittal by the appellate court, it would be highly prejudicial,” added Salim.

On 12 May, guardians Rosita (name changed to protect the victim) and her husband travelled from Selangau, Sarawak and went straight to the state of Attorney General chamber to personally deliver a handwritten request for the case to be reviewed.

“We were very surprised, upset and disappointed by the verdict. We want justice to be served. A criminal like him should not be allowed to go scot free. We don’t understand why such a verdict was delivered. There is no logic in it,” Rosita she added. She said the family was not informed of the development of the case, even when it was brought to the High Court and later to the Appeals Court. They only knew of Bunya’s release when her colleagues read the newspaper.

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The teenage girl, whom Bunya Jalong was acquitted of raping, has grown withdrawn following the ruling by the Court of Appeal. The girl, now believed to be 18 or 19 years old, has not spoken publicly about the court decision. "I can sense that she has built a wall around herself," Sarawak’s Welfare, Women and Family Development Minister Datuk Fatimah Abdullah told reporters on 15 May.

Asked what the family had told her, Fatimah said: "They expressed anger, dissatisfaction. They don’t understand why this man was acquitted when the evidence showed that the child has his DNA. "Consent is immaterial. She was a minor (at the time), incapable of making informed decisions."

Rosita who is a staff of a government department with Bunya said he was their longboat driver and helped to fetch students to and back from school. When the rape took place, the victim was only 14 years old. She gave birth to a son the following year. After giving birth, she changed school and continued her studies until SPM.

“She is now staying at home to take care of her son while waiting for a reply from the training college. But since giving birth, she has changed. She now dresses like a boy and cuts her hair very short, as if trying to shake off her femininity,” said Rosita.

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Bunya Jalong, 60, walked free on 7 May after the Court of Appeal found his four rape convictions unsound. He was convicted in 2013 of raping a 15-year-old girl in May, June, July and August 2011 in a hotel in Sibu. The victim became pregnant and gave birth to a child at Sibu Hospital on Feb 5, 2012.

The first rape charge stated that Bunya had raped the complainant at the end of May 2011 in a hotel room, which is an offence under Section 376(2)(d) Penal Code.

The second, third and fourth rape charges were for sexual intercourse with a minor but with consent in the subsequent months of June, July and August at the same hotel framed under Section 376(1) of the same Code.

On Oct 31, 2013, the Sessions Court convicted the accused on all four charges and imposed 15 years’ jail and five whippings for the first charge, and nine years’ jail and two whippings for the other three charges which were ordered to run concurrently. The court also ordered for RM40,000 in compensation to be paid to the girl.

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This had been reduced on appeal to jail of eight years for the first charge, three years for the second, and two years for the third and fourth charges.

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Bunya appealed to the High Court and had the jail term for the first charge reduced to eight years, the second charge reduced to three years, and the third and fourth charges reduced to two years each. The number of whipping however remained.

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Augustine said the Court of Appeal’s ruling that the conviction was not safe because firstly, both the complainant and the accused’s names were not in the hotel register, giving rise to the presumption that they had not checked-in or occupied any room in the hotel.

Secondly, Augustine said the judges found that her testimony to be unreliable and untruthful as a witness. “The complainant had related the four incidents in the same manner, thus not quite believable and considered not credible. If on the first incident she was forced into sex, why would she follow the accused to the hotel the next three times that followed?” asked Augustine.

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Thirdly, a specialist obstetrician had testified that pregnancy could occur if freshly ejaculated semen laden with sperm is inserted with a finger into the vagina. In his evidence, only once on June 6, 2011, she asked him to have sexual intercourse with him in a toilet of the YMCA. According to the accused, she gave him a hand-job causing him to ejaculate and then his semen was smeared onto both their fingers and he later inserted his finger into her vagina.

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Penang executive councillor Chong Eng said, "The victim in the Sibu case was even made pregnant and gave birth to a boy, but the accused escaped punishment under loopholes in the law. This is an unacceptable decision." According to the law rape, is defined as penetration by penis into the vagina under involuntary circumstances.

“Even if existing law is unable to sentence him on rape charges, prosecutors should have charged him with molest and ordered him to be responsible for the child to meet social justice,” Chong said in a statement.

SWWS president Margaret Bedus said DNA testing proved that he was the father of the baby. "Under the definition of sexual abuse in the Child Act, the action of the man, who admitted to a hand job, is clearly an act of sexual abuse. Also, under the Penal Code, intercourse with a child under 16 is statutory rape," she added.

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Margaret said the legal system still does not understand the well-researched dynamics of child sexual abuse, including how fear and confusion affected a child's behaviour and testimony. "And, the inappropriateness of consent when an adult conducted sexual activities with a minor," she said.

Margaret said the acquittal would set a dangerous precedent if left unchallenged. "Already child rape is under-reported. This verdict, if it is allowed to stand, will make it more difficult to successfully bring (rape) cases to court," she said.

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