When the man who raped Saira asked for her hand in marriage, she was disgusted but unsurprised.
She was just 16. Her rapist expected she would keep her mouth shut if they were married, she figured. He wouldn’t be the first Malaysian to protect himself that way from prosecution.
But Saira would not comply. The Muslim schoolgirl took her case to court, and her attacker was sentenced to eight years in jail.
“There might be pressures from the outside, but this is where you have to be strong,” says Saira, not her real name, about resisting the unlikely marriage proposal. Today, she’s a confident 19-year-old, working at a full-time job.
If underage marriage were outlawed, say girls’ rights activists, there would be no risk that teen rape victims could be silenced by forced loyalty to their new husbands.
But as conservative strands of Islamic opinion gain influence in multi-ethnic, multi-religious Malaysia, child advocates are finding it an uphill battle to make marriage a matter for adults only.
Courts, but not necessarily justice
Lobbyists pressuring the government to criminalize child marriage “were getting quite a lot of momentum” at one stage, says Tham Hui Ying, vice president of Malaysia’s Association of Women Lawyers. “But suddenly it became a hot button issue. It’s religious,” so politicians are “not going to push to outright ban child marriage,” she says.
Malaysia operates a dual legal system. Civil law sets the minimum age of marriage at 18. But under Islamic law, which applies to the Muslim majority on family and morality issues, girls may marry as young as 12 with approval from a Sharia court.
Underage marriage cuts across ethnic and religious lines. About 1,000 Muslim teens get married every year, according to government figures. Fewer than half that number of underage non-Muslims wed, needing the consent of their state’s Chief Minister.
Nobody knows how many rapists avoid jail through marriage; rapes and out-of-court settlements often go unreported. But two court cases have galvanized efforts to outlaw child marriage altogether.
In 2013, a Sharia court in the eastern state of Sabah granted a 40-year-old restaurant manager permission to marry a 12-year-old girl he had raped. A civil court dropped the rape case when the man later said he was going to marry his victim.
That decision flew in the face of Malaysian law, which does not allow rapists to escape prosecution by marriage. But it illustrated how far courts – influenced by customary law or cultural habits – sometimes disregard the law of the land.
It also showed how difficult it can be for prosecutors to mount a successful case against a rapist without their key witness. If an underage victim has married her aggressor, she may well feel duty-bound to protect her husband.
Alarmed by the ruling, which triggered international headlines and public outrage the Sabah Women’s Action Resources Group (SAWO) led calls to the Attorney General to proceed with the criminal case. Eventually it went to trial. In 2014 the rapist, still married to his child bride, was sentenced to 12 years in jail.
“We wanted this case to set a precedent for other cases in the future,” says SAWO’s president, Winnie Yee, in a telephone interview.
It did not do so, though. Last year a court in the eastern state of Sarawak again ignored the law, dismissing charges against a man accused of raping a 14-year-old girl after defense lawyers announced the pair had married.
Following pressure from rights groups, a retrial was ordered. But when the girl was called to testify she refused to give evidence and asked for the case to be withdrawn.
A shifting religious landscape
Ms. Yee had hoped the conviction SAWO helped secure in Sabah would give impetus to her campaign for a ban on child marriage, but “there haven’t been any massive changes,” she says. “We are a bit disappointed. We need public awareness and a huge outcry.”
That has yet to materialize at a time when religious sentiment is on the rise and when parents are anxious to prevent pre-marital sexual relations and pregnancies.
“Muslim conservatism is permeating our society right now,” says Shareena Sheriff, a program manager at Sisters in Islam, a women’s group urging law reform on child marriage. And that is making child marriage a religious issue rather than a rights issue.
Malay Muslims form the majority of Malaysia’s 30 million citizens, but the nation is also home to sizable ethnic Chinese and Indian communities, who are mostly Christian, Hindu, or Buddhist.
The tone of increasing Islamic conservatism is divisive, some Malaysians fear. In September, a launderette in southern Malaysia was rebuked by the state’s Sultan for its “Muslim-only” policy. The same month organizers cancelled a craft beer festival in Kuala Lumpur after protests by Islamists.
The trend has been noticeable since the government introduced Islamization policies in the 1980s, and is increasingly influenced by hardline theologies from the Middle East.
Not all Muslims support child marriage. The influential National Fatwa Council has declared the practice harmful, for example.
But the rise of a more austere form of Islam is strengthening religious arguments that defend child marriage, analysts say. And when the ruling party is courting the conservative Muslim vote ahead of elections expected in 2018, the government has little appetite to promote anti-child marriage legislation.
Though Tuan Ibrahim Tuan Man, the deputy president of Malaysia’s biggest Islamist party, insists that marriage does not absolve a rapist of his crime, he does not oppose child marriage on principle.
“The big question is not age, but responsibility,” says Mr. Tuan Ibrahim, whose party is expected to be a kingmaker at the next elections. “In the context of Islam, they (under 18-year-olds) can be married.”
Campaigners calling for a ban on child marriage know that legislation alone won’t be enough to end the practice, deeply ingrained in religious and cultural beliefs, but insist that it’s a good starting point.
The government argues that cultural norms would override any legislation, says Melissa Akhir, a senior advocacy officer at the Penang-based Women’s Centre for Change. “But we think the law must lead the way on rights.”