Tuesday, 1 March 2011
by: Timotio de Deus
Transnational Law and Business University (TLBU)
The Graduate School of Law in Seoul
In the context of Timor Leste, the word “rape” several times it was misused or misinterpreted by many people in some extends. It is not only misused by the common people who do not study law however, some people who study law as well, include those who work either in the women rights or in the human rights field in general. A paternity case which is supposed to be considered as a civil matter, sometimes, they considered it as a rape case. Things are mixed up sometimes. It is happen because they just speak out what they understood and heard from mouth to mouth without cross checking the right term to be put in the right context. The source to find the correct definition of the word “rape” is the law which regulate that matter or other related international instruments which regulate such a rape matter. The definition outside the law, sometimes, in this sense will not be considered by the court in the decision. In the context of Timor Leste, Decree Law no.19/2009 which approves the Penal Code and Law no.7/2010 on Domestic Violence are the sources to find the correct definition with regard to the word “rape”. The rape in question shall be considered as a crime and as a public crime whether it is a marital rape or non marital rape both are criminal matters. Absolutely any type of rape is criminalized by Timor Leste’s laws.
Decree law No.19/2009 which approves the Timor Leste Penal Code has defined clearly the distinctions between sexual aggression with sexual exploitation and sexual abuse. Sexual exploitation is regulated in section II of Chapter III. Sexual abuse is regulated under section IV of the Chapter and Sexual coercion and rape are defined clearly under the sexual aggression which is provided for under section II of Chapter III of the mentioned decree law. Specially, in regard to rape case is defined clearly under article 172 of Penal Code: “Any person who, by the means referred to in the previous article (article 171), practices vaginal, anal, or oral coitus with another person or forces the same to endure introduction of objects into the anus or vagina is punishable with 5 to 15 years imprisonment”.
In relation to “merital rape”, the above descrived article does not emphesize much on merital rape. However, by the existence of Law on Domestic Violence, Law No. 7/2010, which is provided for under article 35 (b) and article 36, strongly emphesized that merital rape is included as a crime and as a public crime under the law on domestic violence.
If the merital rape in question exists or claimed by the victim in question, Law on Domestic Violence, as an especial law shall be applied. As paragraph 2 of sub-paragraph b of article 2 with regard to the concept on Domestice Violence of the mentioned law, defined: Sexual violence, understood to be any conduct that constrains any person to witness, engage, or take part in an undesired sexual relation, even if within marriage, through intimidation, threat, coercion or use of force, or that limits or annuls the exercise of one’s sexual and reproductive rights;
To sum up, both merital rape and non-marital rape are criminalized by Timor Leste’s laws. The term “rape” in this sense is referred to a criminal matter. It is not a civil matter. In this regard, rape matters criminilized by Law on Domestic Violence as the especial law and Penal Code as general law.
Article 11 of Law no. 7/2010 on Domestic Violence demands Government to include topics relating to human rights in school curricula, particularly topics related to gender, including references to the importance of love, sexuality, and the principle of the negotiated settlement of conflicts.***