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25 Jan 2010

Malaysian man fails to overturn sodomy ban, 60-year jail term to stay

A man who brought the first constitutional challenge against the ban on sodomy in Malaysia and who was appealing against his conviction of 60 years in jail and 22 strokes of rotan for sodomising a 14-year-old male lost his appeal.

Malaysia's Penal Code Section 377 states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal” provides for imprisonment of up to 20 years, and fine or whipping. Section 377A provides for a male person to receive up to two years in prison for any act of 'gross indecency with another male person.'

The following is an extract of a report "Man fails in bid to legalise sodomy" published by The Star (Malaysia) on January 19, 2010. Click on the link below to read the article in full.

A Kuala Lumpur City Hall worker convicted of 22 counts of sodomy wants the Court of Appeal to declare as unconstitutional the provision that criminalised the act.

[Abdul Rahim Abdul Rahaman had said the acts were consensual, according to an AFP report.]

Abdul Rahim Abdul Rahaman contended that it was biased against the male gender.

The submission was made by Abdul Rahim’s counsel Fahri Azzat in his appeal to set aside the 60-year jail term and 22 strokes of rotan meted out to him by the Shah Alam Sessions Court in 2007.

However, Abdul Rahim — a HIV patient — failed to convince Justices Datuk Suriyadi Halim Omar, Datuk Hasan Lah and Datuk Ahmad Maarop who dismissed his appeal and upheld his sentence.

Fahri argued that Sections 377A and 377B of the Penal Code which make committing carnal intercourse against the order of nature a crime infringed Article 8 (1) and (2) of the Federal Consti-tution, which states that all persons should be treated equally and prohibits discrimination against citizens.

He said a scrutiny of Section 377B clearly showed that the provision only applied to males because it referred to a person introducing his male organ into the anus or mouth of another person.


Reader's Comments

1. 2010-01-25 20:19  
60 years is a very harsh punishment... literally wants him to rot in jail. Sad.
2. 2010-01-26 02:16  
Remind me to stay out of medieval Malaysia.
3. 2010-01-26 02:16  
Remind me to stay out of medieval Malaysia.
4. 2010-01-26 05:46  
The jail term seems excessive. As the boy was under the legal age of consent 22 strokes of the cane seems fair enough.
Comment #5 was deleted by its author on 2010-01-26 06:42
6. 2010-01-26 08:28  
it is very sad to know that the laws in malaysia still do not recognize fundamental human rights. surprisingly shocked by the Judge's obiter disapproving that whatever happens in the bedroom is none of the government's business. the right to privacy is not existent in malaysia, but the laws intervene way too interfering with what happens behind closed doors. R v Sharp [1993] in UK, found a different light to the answer that whatever that is done behind closed doors remain closed, and not for the purposes to interfere with the public in revealing acts of gross indecency.

but the 60 year jail is too long for a discretion of a Judge to impose, and I do agree, to certain extent for the accused to be imprisoned on thegrounds of having sex with a minor, and that could be mitigated to a 3 year term imprisonment with 22 strokes of rotan, that is justified. i am of the opinion that the judgment against the accused is purely prejudicial in weight.
7. 2010-01-26 11:31  
The penalty for sex with a minor, especially anal sex, is far more severe in other predominantly Muslim states and pretty strict even in Europe and North America. Plus Mr. Rahim is an HIV patient as well - I wonder if this 'consensual' sex act was also protected and what his 14-year-old former partner's current HIV status is.

If Mr. Rahim has doomed this young man to a lifetime of antiretrovirals and opportunistic infections, I'd say he's got off lightly.

We all should have the right to form sexual relationships with whomsoever wishes to form those relationships with us. However, with this right should come the responsibility to protect the young, the vulnerable and the confused from destroying their lives.

If people don't responsibly exercise their rights, it gives excuses for lawmakers to take them away. I don't feel Mr. Rahim's appeal champions the equality cause as much as us queers would like it to - in fact, it makes gay people look rather predatory and self-interested, and plays perfectly into the hands of the bigots who continue to operate the machinery of government.

8. 2010-01-26 13:42  
Yet another textbook example of international embarrassment for poor Malaysia. Obviously he shouldn't have been nailing a 14-year-old, and I hope they used protection, but irrespective of that, 22 strokes and 60 years is completely insane. I'm not even sure if "age of consent" laws can be reasonably applied here since, in Malaysia, ALL gay sex is illegal, regardless of the age of the participants. I'm guessing he was tried and sentenced in accordance with Islamic law, which would explain the harshness.
9. 2010-01-26 17:27  
GAY SEX between consenting ADULTS is not the same thing as the STATUTORY RAPE of an underage boy. Lock him up and throw away the key! And if 60 years works as a deterant from anyone else thinking about RAPING a MINOR, all the better!
10. 2010-01-27 12:59  
So, a paedophile goes to jail. I don't have a problem with that.
11. 2010-01-27 14:01  
Whilst I am concerned at the severity of the anti-sodomy laws in Malaysia (and elsewhere), surely bringing attention to a case like this does us very little help?
The guy was screwing a *fourteen* year old *child*.
Whatever Abdul might claim to AFP, you can't have consensual sex with a kid.

It makes it much harder for us to fight for equality when there are guy out there engaging in such behaviour. It will only justify those laws to the conservative types.
12. 2010-01-27 15:51  
For all those that seem outraged, as a number of people have commented, he was having sex with a child. As roadside said, another paedophile goes to jail. Best place for him.
13. 2010-01-27 15:51  
For commentator #2/3, perhaps it should remind you to stay out of young boys (below 18) in any part of the world, not just in malaysia. If you can stick to a more mature age group, that is even better :-)
14. 2010-01-27 16:23  
Well, we live in medieval Malaysia after all.....behind the times with behind the times laws, disregarding what people want totally devoid of basic human rights. One more reason for Mother-Nature throwing us into turmoil.
15. 2010-01-27 22:14  
You people railing on against pedophilia are right about it, of course, but you're also TOTALLY missing the point. Had this guy been sleeping with an 18-year-old, the punishment would be the same.

THAT'S the point.
16. 2010-01-28 00:12  
It's presumably the exploitation of a minor, of course the guy is and should be going to jail; and how crazy to try and use this case as a constitutional test case.

But the sentencing seems way over the top, though we're not given much detail to know what it's based on. The Star newspaper article that is linked, actually says the boy was 15, not 14. The age of consent in Malaysia for males and females is said to be 16 (via google). What would a straight guy normally get sentenced to for having a sexual relationship with a 15 (or 14) year old girl in Malaysia? Surely that's the comparison to look at.

The maximum sentence for unnatural sex under 377 is supposed to be 20 years. Here they gave the guy 60 years, effectively the rest of his life in prison, presumably punishing the guy for different counts separately. As for the caning, if this is the same method as in Singapore, you're talking serious and prolonged torture at 22 strokes.

As for the sexist nature of the section that the lawyer was getting at as being unconstitutional: if you're straight and your girlfriend gives you a blow job, you can get 20 years. She doesn't commit an offence at all. If you've had 3 blow jobs from her you could get 60 years. She gets nothing. Same if the bj (or bottom in anal) is from a guy. It looks like potentially a blackmailer's charter, except there are generally no prosecutions of consenting adults in private from what I've been told.
Comment #17 was deleted by its author on 2010-01-28 14:26
18. 2010-01-28 14:27  
Malaysia is Malaysia

We all know they have weird and sick laws.
Comment #19 was deleted by its author on 2010-01-28 15:20
20. 2010-01-28 17:17  
#15 chadm252 "Had this guy been sleeping with an 18-year-old, the punishment would be the same."

What are you basing that conclusion on? Surely Islamic law distinguishes between statutory rape and homosexuality... Sharia law certainly does.
21. 2010-01-28 20:17  
Post 20 Xepherus.

The guy was charged under the civil penal code s.377, (which applies to everyone, not just muslims, who are only 60% of the population), not under sharia (Islamic) law. Nor does he appear to have been charged under under-age provisions in the code so far as we can tell from the limited info in the article. The penal code is based on the same one you get in India, Singapore etc. . India and Singapore have made some recent reforms to their version of this section.

Maybe Aput can make an appearance here and provide more info.
Comment edited on 2010-01-28 20:36:30
22. 2010-01-29 01:48  
In the United States, a minor has no legal capacity to make such a decision as consensual sex with an adult.

Nobody in the US would come to the aid of this guy.

I do not know the legal code in Malaysia, but it seems valid to punish this creep.
23. 2010-01-29 19:26  
re: post 22

The question is not whether he should be punished, (of course he should), or whether he's a creep (irrelevant), or whether you can speak for the entire legal profession of the United States not wanting to defend unpopular defendants; but rather whether the punishment is proportionate to the offence and in line with similar heterosexual cases (see post 16); and if punishment involves prolonged torture there are also international covenants to consider. We don't really have enough info from the article to know.
24. 2010-01-29 22:12  
This is the only hetero comparison I could find on a quick google, from Malaysia Crime Watch. It's a really horrendous case, but the sentencing is lower, and CONCURRENT on each charge, so the father who repeatedly sodomised and raped his 13 year old daughter will serve a maximum of 15 years, and get 30% fewer strokes of the cane.

5 March 2008
Kuala Lumpur
A general worker and father of five was sentenced to 45 years’ jail and 15 strokes of the cane for sodomizing and raping his underaged daughter. His children have been handed over to the Welfare Department.
The daughter was first sodomized in their Sentul flat toilet on 18 July 2003 when she was 13 years old.
The judge gave 15 years of jail time for each of the two sodomy charges and a rape charge. The father was also given five strokes of the cane for each of the charges. The jail terms are to run concurrently commencing from the date of his arrest on 4 March 2004.

Comment edited on 2010-01-29 22:15:10
25. 2010-01-30 03:05  
Tragically, having born in An Islamic state there is nothing tolerant or joyous -only imposing control over everyones lives and punishing us as human beings -this is in itself ungodly.
26. 2010-01-30 04:26  
Let me get this straight..
The heterosexual case - father raping a minor daughter, 15 years per charge + 15 rotan stroke
This homosexual case - hiv+ man sodomizing a minor boy, 22 counts of sodomy charges, shouldn't he get 330 years? Instead he got 60 years and 22 rotan strokes...

I think he got a hell of a bargain for just getting 60 years and 22 rotan strokes! His lawyer should lose his/her license for using this case to challenge the constitution...
27. 2010-01-30 08:12  
wow, i just got back from my weekly saturday night fight club and saw that i finally agree with something Steve UK wrote

as a Gay Dad and i find it appalling that anyone would use this case to justify any type of sexually activity that involves a 14 year old

its dregs like this that confuse people about gay values and bring down the brand

gay activists should walk away from this guy and draw a fine line between real human rights abuses and creepy criminals

28. 2010-01-30 10:05  
he's hiv + and the boy is 14. fullstop.
29. 2010-01-31 14:17  
paedophile goes to jail..YAY!!! he had HIV and he had sex with a boy who was 14.. 60 years in jail seems fair.. i would have given 100 years if i were the judge..
30. 2010-01-31 14:44  
Despite the unwholesome nature of the case, it should've been tried as statutory rape, not sodomy.

Anytime someone is charged with Penal Code 377A and B (aka sodomy), there are serious implications for all of us. This means the Malaysian constitution makes no distinction between adults engaging in consensual anal and/or oral sex and non-consenting adults engaging in the same.

As it stands, if the government can prove that a Malaysian has engaged in anal and/or oral sex, the person can be charged with the sodomy law. The law does not recognise "consent".

The defense lawyer tried his luck with the "consensual" argument but this was a stupid move. The boy was underaged. And even if the boy did give his consent, a minor is a minor.

But the defense lawyer is still right that Penal Codes 377A and B are still unconstitutional and must be done away with.

And I find the judge's statements worrying. Yes, the government must step in when it's an obvious crime -- like rape, incest, domestic violence, sexual harassment or discrimination because of one's gender or sexuality. But it should leave consenting adults alone. There's a big difference between someone who wants it and someone who doesn't want it but was forced to.

And to those of you who left comments pointing out the fact that he's HIV+ and implying that he's some kind of monster for having the condition and that he somehow deserved the punishment because of it, shame on you guys!
31. 2010-01-31 19:46  
Some of you are assuming a hell of a lot. First, do we even know the age of this guy? I couldn't find it in the article or in the article in Star. Some of you are acting like he's a 50-year-old who raped a child. What if he's 19? Does that change the tone a bit? Second, he was HIV+ and the article calls him an "HIV patient," but this IS Malaysian reporting, not known for its impartiality, so let's be a bit fair. Did he even KNOW he was HIV+? Maybe, maybe not. Moreover, the Star article says the boy was 15, so which is right?

It's like the Anwar thing all over again when they said he committed sodomy in a building that hadn't even been built yet -- the prosecution, in its zeal to punish sodomy, can't even bother to get the facts right.

And THIS statement, “Are you saying that homosexuals among consenting adults is legal? In other words, what happens in the bedroom is none of the Government’s business?” -- I agree with #30. That's very troubling to consenting adults irrespective of sexual orientation.

I would answer a resounding "YES!" to both of the judge's questions.
32. 2010-01-31 20:21  
The child was 14 years old and clearly underage, whilst I sympathise greatly with the Malaysians even liberal countries like the United Kingdom or US would consider such an act wrong and rightly so.

This must be one of the worse attempts at a test case, all of its publicity will only sour relations as many will peceive homosexuals as peadaphiles who spread HIV.

I do hope Malaysia and other countries decriminalise homosexuality although I know this may take some time.

33. 2010-02-24 08:54  
Sorry, but as a once-14 yr old trying to seduce men (by asking them to help me buy an 'athletic supporter, or "jock strap") without much success. If we had been stopped by, say a cop, and I had panicked, to avoid embarrassment with my family n' friends, I'd have probably testified against the very adult i tried to seduce.

I say this cause as a 23 yr old this happened to me in the Army. A cook tried to put a move on me. Simply touched my bottom, if that. In mentioning to my roommate in a casual, humorous way, he said that it happened to him. Next thing I know, we were both testifying before his commander and a horde of others. I think he might've been tossed out of the Army as allegedly "they" stated this had happened off base too.

I still feel bad about this as I was young and INNOCENT for sure.

We don't know what really happened? Was the kid, nearly an adult, a "pro" who picked this guy up? Yeah, I understand about the age of consent, but there are some teens out there more hardened than some older men!

My 2nd story: there was a man in my neighborhood that many of the kids went to for sex. A bj and some bucks. Truly a pedophile I thought. Then I found out: this guy was in a wheel chair, wasn't easy for him to get out, the "kids" he was allegedly "abusing" were from 12 to 20-something, they were "using" his apt., making him pay, and basically he was in more danger from these young "gangsters" than he was. He got a ridiculous # of years in jail.

I say these kinds of situations need to go to a "gay" judge -- I know, I know, never happen -- so he or she can rightfully ascertain what REALLY HAPPENED.

Remember: there were people who were quick to burn us at the stake ("faggots" comes from, if my history serves me right, burning logs or stakes), send us to prison (not just jail), beat us, stone us, etc., so why should we be so quick to judge another human withOUT knowing the WHOLE story (and no, I do NOT condone molesting young children of any age.)

However, I do encourage tolerance of other human beings and BEATINGS and incredible LENGHTHY out-of-proportion PRISON SENTENCES are medieval abortions of justice in this day n' age.

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