by Sivananthi Thanenthiran | Asian-Pacific Resource and Research Centre for Women (ARROW)
Thursday, 23 August 2018 13:53 GMT, Thomson Reuters Foundation News
Last week, two women were sentenced to six strokes of the cane and a RM3300 ($800) fine for “attempted lesbian sex” by the Syariah court in Malaysia’s conservative state of Terengganu, which is ruled by the Islamic party PAS. This is the first time homosexual sex has been penalised in Terengganu.
The case highlights a growing move within a number of countries in the global south to define and determine women’s autonomy, agency and rights from a standpoint of cultural and religious rights rather than a framework of universal human rights.
These countries then create parallel legal structures and utilise extra-judicial punishments that violate the rights promised to women. Last week’s verdict flouted global standards and debates around corporal punishment, gender equality and sexuality rights in order to protect and project an insular and parochial worldview, borne out of ethno-religious fundamentalism.
In Malaysia, flogging and caning are discriminatory against Muslim women. The Islamic sharia law metes out whipping, flogging and caning to women, although under Section 289 of the Criminal Procedural Code, these forms of punishment are prohibited for women. This defies the promise of equality before the law for Muslim women, as they not only face harsher punishments, but also for a range of different ‘crimes’, and subject to different standards of justice.
An important consideration is that that these judicial corporal punishments are being meted out for moral and personal crimes, those that violate certain standards of sexuality or sexual behaviour for women and girls.
Yet there are three key flaws in this argument.
First, the state is unable to recognise women’s fundamental right to consent to sexual acts. This is evidenced in child marriage where the guardian has to give consent on behalf of the girl, for both the marriage and, indirectly, the resulting sexual activity. This is premised on the fact that the sexuality of women and girls, like gender roles, serves a purpose for family and society.
Second, the definitions of acceptability and transgressions within a “moral” framework are subjective, and the punishments are not commensurate with the crime. For example, the state strictly defines sex as taking place within the framework of marriage. As such, the state treats cases of child marriage with great laxity as seen in the recent example of an 11-year-old indigent girl and a 41-year-old polygamous man, where the man was let off with an RM1800 fine.
And third, because only sexual activity within marriage is deemed legal and permissible, compulsory heterosexuality is the norm imposed on individuals and couples. The state is endeavouring to control and fashion sexuality so that it remains both moral and palatable for society at large.
These efforts should rightly be seen as an attempt to define, determine and ensure adherence to state ideals of the nature of love and relationships. This is how the state encroaches on the private lives and preferences of individuals, leaving women and girls, as well as sexual and gender minorities, to suffer unduly.
The way ahead is clear. There is a need to create greater recognition and protection of the rights of women and girls, beyond those afforded by religious and cultural frameworks, which should not be used to justify sentences that include corporal punishment.
We must also reject the idea that marriage somehow “legalises” sex. The union of two people is used to sanction many things, including child marriage, rape and violence. But there must be a more nuanced understanding of how male privilege within marriage feeds into the further subjugation of women.
The state has no place in the bedroom.
Malaysia needs to end flogging and caning, and commit to uphold equality for all women. The rising intolerance, hate speech and crimes and unduly harsh punishment of sexual minorities must stop.