A rights activist today expressed shock at a Sabah Sessions Court verdict for concluding that custodial rape victims need to show injuries in order to prove that they were raped.

Yesterday, judge Nurchaya Arshad acquitted two policemen of the charge of raping a 13-year-old girl, dubbed 'Angelica', inside a Sabah illegal immigrants' holding centre during Malaysia's controversial mass expulsion of undocumented foreigners between Aug and Sept 2002.

In her ruling, the judge said "there were no signs that the victim put up a struggle during the alleged incident, as prosecution witness Dr Soon Ruey did not find any external injuries to the victim's private parts and no examination was conducted to find any injuries to the accused persons."

In the case of custodial rape, particularly that of minors, Tenaganita director Irene Fernandez said physical injuries should not be a factor in making a decision.

"I am shocked that a child would have to struggle and show signs of injuries in order to prove rape," she said.

Corroborative evidence

Fernandez expressed concern that the judge had raised the need for corroborative evidence from other police officers (allegedly present during the rape) to determine that the prosecution had a case.

"You cannot possibly expect corroborative evidence. This has always been a major concern in custodial rape."

However, Fernandez added that a number of issues raises questions whether the investigations were properly conducted.

The first was the fact that it took a while before the men were charged.

"Right from the start when the news broke, there was no sincerity to investigate the case," she said

"The Malaysian and Phillippines governments were more concerned as to whether she was a Malaysian national or a Filipino. This was given more importance than the fact that she was raped."

By the time investigations got underway, there was doubt as to whether she would still be able to show injuries on her body, said the veteran campaigner.

No special care

Second was the fact that the authorities failed to place the girl under special care, she said.

"Survivors of rape must be in the hands of an independent body, or women's groups."

Fernandez further expressed doubt as to how much investigation was done, considering that the police force were themselves implicated.

"In our fact-finding missions to Sabah, we did in fact receive many allegations of rape, and was explained to us quite vividly.

"Similar findings were also obtained by (Filipino NGO) Migrante International when they visited former detainees in Tawi-Tawi.

"So we are indeed very shocked (by yesterday's verdict)."

"At a time when the nation is up in arms over child rapists, I think it is appropriate for the chief justice to call for a review of the case," Fernandez added referring to the public outcry over two recent high profile rape and murder of young girls.