Whipping all parties involved in incest fails to recognise the power dynamics of a family where one party becomes the victim of another, says the Joint Action Group for Gender Equality (JAG).

Instead, it said justice would be better served if the perpertrator is charged under the Penal Code, as this would "properly reflect the gravity of the crime committed".

JAG adds in a statement: "It is grossly unjust that the Syariah Criminal Offences Act renders a victim of incest liable to a charge of illicit consensual sex.

"This fails to recognise the power dynamics in sexual crimes that occur within the family. No victim should be punished or even charged for the crime of incest."

Civil law, it said, is better suited to punish incest offenders as the guilty party is liable to a jail term of no less than six years and not more than 20 years.

Under the Johor Syariah Criminal Offences Act, those guilty of incest will face a fine not exceeding RM5,000 or imprisonment for a term not exceeding three years, or to whipping not exceeding six strokes or to any combination thereof.

Federal law should prevail

"Given the conflict of laws, federal law should prevail and all crimes of incest should be prosecuted under the Penal Code to ensure consistency in the application of the law," said JAG, which is a coalition of women's rights NGOs that includes Women's Aid Organisation and Sisters in Islam.

Last week, Berita Harian reported that the Johor Religious Department had whipped 24 women and 17 men since April 4, 2013, and sentenced another 22 women and 17 men to the same fate for committing incest and having sex outside of wedlock.

According to JAG, such punishment under the Johor syariah law not only contradicts with the Penal Code, but has also "no basis in Islamic legal theory and practice".

"There is nothing particularly Islamic about physical punishments. On the contrary, the spirit of the Quranic injunctions encourage restraint and limited the then common practices of imposing physical punishments.

"It teaches the spirit of universal love, and emphasises repentance and rehabilitation of sinners, and God's forgiveness and mercy is a constant, recurring theme," the statement says.

It added that "degrading punishments" go against Quranic teaching, while there is no empirical evidence to prove that physical punishment is a deterrent against sexual crime.

Quoting several verses of the Quran and a saying by the Prophet Muhammad, JAG also argued that "selective prosecution of moral policing" also went against what is taught in the holy scripture.

The disporportionate number of women who are punished, as compared with men, also raised questions over the fairness and efficacy of the punishment, it added.