They pointed out that caning has been prescribed for other sexual violence offences, but said the legislature appears to have overlooked its application in gang rape cases.
They said gang rapes tend to be more violent and leave victims, particularly women and children, with severe physical and psychological trauma.
Lawyer Salim Bashir said it was perplexing that the Penal Code does not provide for whipping in gang rape cases, even though the punishment is prescribed for other sexual offences.
“The reasons behind the legislative omission are hard to comprehend,” the former Malaysian Bar president told FMT.
He said it was the legislature’s duty to impose deterrent sentences to protect victims, as gang rape poses a grave risk to their physical health and emotional well‑being.
His comments followed a decision handed down by the Court of Appeal last week which saw four men sentenced to 16 years in prison for the 2020 gang rape of a 12‑year‑old girl at a Felda oil palm plantation in Dungun, Terengganu.
Under Section 375B of the Penal Code, gang rape carries a jail term of between 10 and 30 years, but unlike rape under Section 376, it does not carry a whipping sentence.
Lawyer A Srimurugan said that pending an amendment to Section 375B of the Penal Code, the prosecution could still pursue charges of rape against the perpetrators of gang rape provided there is strong medical evidence and unshakeable witness testimony.
He said Section 170 of the Criminal Procedure Code allows for accused persons to be charged either jointly or individually if the offence is committed in the same transaction.
“If found guilty, whipping could be imposed on top of a jail term,” he said.
Srimurugan said Section 289(c) of the Criminal Procedure Code permits the whipping of men above 50 convicted of rape, sodomy, sexual penetration with an object, or inciting a child under 14 to commit gross indecency.
“It is mind-boggling that for the very serious offence of gang rape, the punishment of whipping has been overlooked,” he said, adding that the omission must be corrected by Parliament.
Child Rights Innovation and Betterment Foundation co-chairperson Srividhya Ganapathy said the Court of Appeal ruling raises important questions about how cases of sexual violence against children are being framed and prosecuted.
“Knowing Section 375B does not provide whipping, the offenders in this case could have been charged under Section 14 of the Sexual Offences Against Children Act 2017,” she said.
She said that for physical sexual assault, the provision provides for imprisonment of up to 20 years and a discretion for whipping.
“In a case involving coordinated sexual violence against a child, it is legitimate to ask why the most protective statutory framework available was not utilised,” said Srividhya, who is also a lawyer.
She said justice for a child survivor is not measured only by the length of imprisonment imposed against her perpetrators.
The victim must be advised of her right to present a victim impact statement, avenues for compensation, appropriate support, rehabilitation and protection against any form of retaliation.
“There is little value in enacting strong, specialised child protection laws if those entrusted with enforcing them are not consistently trained and equipped to use them properly. The law cannot protect children on paper alone,” she said.