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Rape

Law 2311 Criminal Law II

Explanation 2A Muslim woman living


S.375 PC - A man is said to commit rape
separately from her husband during the
who, except in the case hereinafter
period of iddah, which shall be
excepted, has sexual intercourse with a
calculated in accordance with Hukum
woman under circumstances falling under
Syara, shall be deemed not to be his
any of the following descriptions:
wife for the purposes of this section.
(a) against her will;
(b) without her consent;
Husband causing hurt in order to have
(c) with her consent, when her consent has
sexual intercourse
been obtained by putting her in fear of

S.375A PC - Any man who during the


death or hurt to herself or any other
subsistence of a valid marriage causes
person,
or
obtained
under
a
hurt or fear of death or hurt to his wife or
misconception of fact and the man
any other person in order to have sexual
knows or has reason to believe that the
intercourse with his wife shall be punished
consent was given in consequence of
with imprisonment for a term which may
such misconception;
extend to five years.
(d) with her consent, when the man knows
that he is not her husband, and her
Punishment for rape
consent is given because she believes
S.376(1) PC - Subject to subsections (2),
that he is another man to whom she is
(3) and (4), whoever commits rape shall
or believes herself to be lawfully
be punished with imprisonment for a term
married or to whom she would consent;
which may extend to twenty years, and
(e) with her consent, when, at the time of
shall also be liable to whipping.
giving such consent, she is unable to
understand
the
nature
and
S.376(2) PC -Whoever commits rape on a
consequences of that to which she
woman under any of the following
gives consent;
circumstances:
(f) with her consent, when the consent is
(a) at the time of, or immediately before
obtained by using his position of
or after the commission of the offence,
authority over her or because of
causes hurt to her or to any other
professional
relationship
or
other
person
relationship of trust in relation to her;
(b) at the time of, or immediately before
(g) with or without her consent, when she
or after the commission of the offence,
is under sixteen years of age.
puts her in fear of death or hurt to
herself or any other person;
ExplanationPenetration is sufficient to
(c) the offence was committed in the
constitute the sexual intercourse necessary
company of or in the presence of any
to the offence of rape.
other person;
ExceptionSexual intercourse by a man
(d) without her consent, when she is
with his own wife by a marriage which is
under sixteen years of age;
valid under any written law for the time
(e) with or without her consent, when she
being in force, or is recognized in Malaysia
is under twelve years of age;
as valid, is not rape.
(f) with her consent, when the consent is
Explanation 1A woman

not less than five years and not more than


thirty years and shall also be liable to
whipping.
S.376(3) PC - Whoever commits rape on a
woman whose relationship to him is such
that he is not permitted under the law,
religion, custom or usage, to marry her,
shall be punished with imprisonment for a
term of not less than eight years and not
more than thirty years, and shall also be
punished with whipping of not less than ten
strokes.
S.376(4) PC - Whoever whilst committing or
attempting to commit rape causes the
death of the woman on whom the rape is
committed or attempted shall be punished
with death or imprisonment for a term of
not less than fifteen years and not more
than thirty years, and shall also be
punished with whipping of not less than ten
strokes.
Incest
S.376A PC - A person is said to commit
incest if he or she has sexual intercourse
with another person whose relationship to
him or her is such that he or she is not
permitted, under the law, religion, custom
or usage applicable to him or her, to marry
that other person.
Punishment for incest
S.376B(1) PC - Whoever commits incest
shall be punished with imprisonment for a
term of not less than six years and not
more than twenty years, and shall also be
liable to whipping.
S.376B(2) PC - It shall be a defence to a
charge against a person under this section
if it is proved
(a) that he or she did not know that the
person with whom he or she had sexual
intercourse was a person whose

(a) living separately from her husband


under a decree of judicial separation or
a decree nisi not made absolute; or
(b) who has obtained an injunction
restraining her husband from having
sexual intercourse with her, shall be
deemed not to be his wife for the
purposes of this section.

obtained by using his position of


authority over her or because of
professional relationship or other
relationship of trust in relation to her;
or
(g) at the time of the offence the woman
was pregnant,
shall be punished with imprisonment for a
term of

Rape
Rape s.375 PC is the most complicated
offence where there was no express of
mens rea mention the provision.
Whether s.375 is strict liability offence. If it is
not a strict liability offence, then what is the
required mens rea?
Under s.375 PC the offence of rape can only
be committed by a man.
In Malaysia, the gender of a person can only
be determined through birth certificate.
If a person went for an operation to change
her sexual organs from female to male, i.e
she become he is cannot fall under s.375.
consent deals with private affairs between
one woman and one man. No witnesses
available and in a normal circumstances a
woman after she been rape by a man will
always wash away the evidence.
What is the different between Limb (a) and
Limb (b) of s.375?
Some of the limb is redundant and many
people have misconception on the force
element whether is it necessary to
constitute rape.
S.375 does not require the element of force
to constitute a rape offence.
Rape will happen even though the girl

relationship to him or her was such that


he or she was not permitted under the
law,
religion,
custom
or
usage
applicable to him or her to marry that
person; or
(b) that the act of sexual intercourse was
done without his or her consent.
ExplanationA person who is under
sixteen years of age, if female, or under
thirteen years of age, if male, shall be
deemed to be incapable of giving consent.

Law 2311 Criminal Law II

Generally, a husband cannot commit rape


to his wife.
Exception to s.375 Sexual intercourse by
a man with his own wife by a marriage
which is valid under any written law for
the time being in force, or is recognized in
Malaysia as valid, is not rape.
Therefore, to constitute rape, the man
must not the woman husband.
However, S.375A PC the husband who
during the subsistence of a valid marriage
causes hurt or fear of death or hurt to his
wife or any other person in order to have
sexual intercourse with his wife shall be
punished with imprisonment for a term
which may extend to five years.

S.375(e) with her consent but it is not a


valid consent due to misconception of
fact that the girl is unable to
understand
to
the
nature
and
consequences of her acts.
S.375(f) - with her consent but it is not a
valid consent due to the position of
authority over her.
S.375(g) PC stated a girl with or without her
consent, when she is under sixteen years
of age have sexual intercourse with a man,
the man is liable for rape. (Statutory rape)

Consent
Must come from the woman herself
Must be given prior to each sexual
intercourse or before the sexual

There is exceptional to the husband


intercourse.
liability,
No one else can give consent on behalf
If a woman is during judicial separation
of the woman.
or have been granted injunction to have
sexual intercourse, the man can be
Director of Public Prosecutions v
guilty for the offence of rape.
Morgan [1976] AC 182
For a Muslim man, if the woman is still The defendant M invited the other three
under iddah period, the husband having
defendants, much younger men, to his
sexual intercourse with the woman can
house and suggested that they should
still guilty for rape.
have intercourse with his wife, telling
***remember, criminal case in Malaysia
them that she was "kinky" and any

consented.
In most of the cases, the accused person will
not deny that he have sexual intercourse
with the the girl because she consented
and he taught that the girl is above the age
of 16.
Actus Reus a sexual intercourse by a man
with a woman under the circumstances
provided s.375 (a) to (g).
Explain: What is sexual intercourse?
Explanation to s.375 Penetration is
sufficient
to
constitute
the
sexual
intercourse necessary to the offence of
rape.
DPP must produce evidence or medical report
to prove there is penetration.
Must have penetration
Only man sexual organ can penetrate and
only woman sexual organs can be
penetrated by the man.
How to prove the offence of rape is actually
committed by the accused and not other
person?
Rape

only can be trial at Criminal Court and


not Syariah Court.
S.375 PC cross refer to s.113 of the
Evidence Act 1950 It shall be an
irrebuttable presumption of law that a
boy under the age of thirteen years is
incapable of committing rape.
For
rape,
is
must
not
have
consensual:
S.375(a) and (b) against her will and
without her consent.
S.376 (c) although she consented but
the consent was given in fears of death or
hurt to herself or any other person, or
obtained under a misconception of fact.
(Cross refer to s.90 and s.44 of PC.)
S.375(d) with her consent but it is not a
valid consent due to misconception of
fact to the identity of the man to
whom she believes that she is having
sexual intercourse with her husband and
not with other person.

apparent resistance on her part would be


a mere pretence. Accordingly they did
have intercourse with her despite her
struggles and protests.
The wife gave evidence that she resisted
and did not consent.
The three young defendants in their
evidence said that they had believed
what M had told them, that the wife had
resisted at first but had later actively cooperated in the acts of intercourse.
Held: The wife did not consent and
the defendants were convicted.

Law 2311 Criminal Law II

Ratanlal & Dhirajlal stated that limb (a)


PP v Zainal Abidin Bin Ismail & 3 Ors -
and limb (b) can be distinguished and
[1987] 2 MLJ 741
referred to different categories of woman:
The victim and her cousin was at a beach
Limb (a) is referring to a sound
until 1.00am and when they were about to
woman and only sound woman is
leave,
four
accused
had
identified
capable of having a will.
themselves as members of the Religious
Limb (b) is referring to an unsound
Department C.I.D arrived and stop them.
woman for whatsoever reason is
Later, they have sexual intercourse with the
incapable to give a valid consent.
victim who then claimed that she was

Medical examination report is required to


afraid and force to submit.
explain whether is forceful penetration or
Three accused were charged with raping a 20
not, nature of fear, by blunt object.
year-old girl and the 4th defendant (D4)
was charged with attempting to rape her.
PP v Ku Hang Chua - [1975] 2 MLJ 99
The accused argued that the girl was willing
The accused D1 was charged with an
to have intercourse because she did not
offence of rape, allegedly committed by

Sidek Bin Ludan v PP [1995] 3 MLJ 178


The appellant was convicted on two charges
of raping a minor aged nine.
Held: To constitute rape there must be
penetration
even
the
slightest
penetration may be adequate for the
sexual intercourse prescribed under
s.375.
Nasrul Annuar Bin Abd Samad v PP
[2005] 1 MLJ 619
The accused was charged with an offence of
rape of a girl aged 14 years and 3 months
old at the time of the offence.
The accused was found guilty and sentenced.

struggle.
Medical evidence: she had changed her
clothes and had washed her private parts
since the time when she alleged that she
had been raped. She found no bruises on
the girl and no recent laceration of the
hymen. She found no spermatozoa and no
positive evidence of recent intercourse or
injury. The only significance of the fact that
the vagina admitted two fingers was that
intercourse could have taken place at some
time.
Held:
The victim cannot describe as how many
people raped her and how many people
penetrated her, her stories have varied.
The learned judge could not be sure of
the accuracy of her stories.
It would be unsafe to convict the
defendants on the charges. Accordingly,
they were found not guilty and
discharged.
The court further added that the accused
conduct was disgraceful and what they
have done though it does not amount to a
criminal
offence,
was
morally
inexcusable.
*** This case was held before the 2006
amendment where limb (f) was inserted
to s.375.
-

Rape

him on a 17 year old girl.


The accused appealed and claimed that
D2 originally was charged with abetting
penetration had not been proved by the
the offence of rape but later withdrawn
prosecution as whatever the girl testified
and gave evidence for the prosecution.
that at the time of the alleged rape, she did
Accused forced both the complainant's
not see anything that happened to her
thighs apart with both his hands. Having
from her stomach downwards and that she
done so he climbed on top of her and
only presumed that the penis of the
played with her private part with his hand
accused had penetrated into her private
and at the same time putting his finger
part.
into her vagina. D1 then raped her. Held: allowing the appeal and quashing
Complainant said that she felt accused
the conviction and sentence.
had inserted his penis into her vagina To prove rape, DPP must prove two
many times. It lasted for 5 to 10 minutes
things, (i) there was sexual intercourse
and she felt pain.
between the accused and the victim, (ii)
Medical evidence where the complainant
the victim was certain that is the accused
was examined about four hours after the
that who had actually penetrated her.
The victim cannot confirm it was the
incident. Swab were taken from the accuseds penis had penetrated into her
complainants vagina which was found
private part, even though she admitted
that there were few spermatozoa present
and she felt that she had been
on the swab. This according to the doctor
penetrated.
confirms that the complainant had a
Therefore, there was no clear evidence to
recent sexual intercourse.
show that the penis of the accused had
Held:
To constitute an offence of rape the
penetrated into her private part.
sexual
intercourse
which
the
complainant
had
must
be
committed against her will or
without her consent
The complainant was positive that it was
the accused who raped her and not D2.
There was corroboration of the evidence
and D1 was found guilty for rape.
Law 2311 Criminal Law II

Ah Mee v Public Prosecutor - [1967] 1


R v Camplin (1845) 1 Cox C.C. 220,
The King v Williams [1923] 1 KB 340
MLJ 220

The accused made the female was a 13


A Chinese female rubber tapper, 17 years old,
year old girl to become intoxicated before The appellant, who was engaged to give
had alleged that she was raped by the
having sexual intercourse with her.
lessons in singing and voice production to a
Held: "It is rape to have carnal
appellant in a rubber estate while she was
girl of sixteen years of age, had sexual

cycling home.
Held: The court was unhappy with the
evidence given by the doctor and cannot
explain as to the penetration.
Since
the
penetration
has
not
satisfactory proven and it was unsafe for
the accused to be liable and therefore the
conviction must be set aside.

knowledge of a woman who has been


rendered insensible through liquor
intercourse with her under the pretence
even though the accused gave her
that her breathing was not quite right and
the liquor only for the purpose of
that he had to perform an operation to
exciting her, or where she does not
enable her to produce her voice properly.
resist because her submission is due
to the fact that she is drunk. A
The girl submitted to what was done under
woman who is insensible is incapable
the belief, wilfully and fraudulently induced
of giving consent.
by the appellant, that she was being
R v Jordan (1839)
medically and surgically treated by the
State Of Maharashtra vs Prakash And
Held: To constitute penetration, the
appellant and not with any intention that
Another AIR 1992 SC 1275.
parts of the males penis must be
he should have sexual intercourse with
inserted in those private parts of the
her:female, even though with very slight
Accused was a Police Constable and used
tear, rape have been committed, but, as
his authority over the victim to induce her
Held:
The
appellant
was
properly
matter of law, it is not essential that the
to have sexual intercourse with her.
convicted of rape.
hymen should be ruptured.

Gopala (1895)

Held: No valid consent.

Where the consent or submission of a


female, to sexual intercourse is obtained
by
false
pretences
or
false
representations,
such
consent
or
submission is no defence to a charge of
rape.

The appeal court took into consideration


the fact that victims were poor rustic
Held: Every act done against the will of the
villagers earning their livelihood by daily
woman is an act without her consent.
labour. They were threatened by the police
However, not every act done without her
constable, who was in uniform on
consent is against her will.
bandobast duty, of having attempted to
Augustine Foong Boo Jang v Public
defile the Ganapati idol and threatened Prosecutor [1990] 1 MLJ 225
R v Flattery (1859)
with police remand and all that follows. To The applicant was charge for raping his
these poor rustic helpless villagers, the
Filipino maid and was convicted.
The prisoner professed to give medical and
police constable represents absolute The applicant had alleged that there had
authority. They had no option but to
surgical advice for money.
been a continuing consent to continuous
submit to his will.
intercourse extending over a period of at
least two months prior to the rape.
The prosecutrix, a girl of nineteen, consulted
Held:
him with respect to illness from which she
The doctor made it clear that this recent
R v Mayers (1872) 12 Cox C.C. 311
was suffering.
laceration was consistent with recent

A sleeping woman taught that she was


intercourse. It is difficult to see that it
having sexual intercourse with her
He advised that a surgical operation should
could be consistent with intercourse
husband but turnout to be another person.
be performed, and under pretence of
extending over that whole period.
Held:
performing it, had carnal connection with
There is a fundamental difference

the prosecutrix.
She submitted to what was done, not with
any intention that he should have sexual
connection with her, but under the belief
that he was merely treating her medically
and performing a surgical operation, that
belief being wilfully and fraudulently
induced by the prisoner.

If a man has or attempts to have


connection with a woman while she is
asleep, it is no defence that she did not
resist, as she is incapable of resisting.
The man can therefore be found guilty
of a rape, or of an attempt to commit a
rape
It was held that a sleeping woman
could not consent.

between
consent
and
submission.
Consent always imports submission;
submission does not necessarily
import consent.
The applicant had established a position
of dominance over the complainant as
she was completely dependent on him
financially. She was afraid of doing
anything which might prejudice her
position and her employment and

The only thing she consented to was the


performance of a surgical operation.
Held, that the prisoner was guilty of rape
Rape

Law 2311 Criminal Law II


it is not difficult to see why she did not
resist perhaps as strenuously as has
been suggested she should have done.
It is perfectly apparent from her own i.
story that she did put up as much
resistance as she could.

Ab Malek Bin Atan v Public Prosecutor


[2002] 4 MLJ 84
The complainant alleged that she was raped
on two occasions by the accused in his
room but the accused maintained that the ii.
complainant had consented to sexual
intercourse on both occasions
Held: Appeal allowed
It was a rule of practice that in sexual
offences the evidence of a complainant
must be corroborated. The critical matter
for initial consideration was the credibility
of the evidence of the complainant.
The complainant had submitted to the

Whether rape is strict liability offence or


not?
Factors to determine:
Nature of the offence
Mala in se or mala prohibita, if
mala in se, its cannot be strict
liability offence.
-

Quasi crime or full crime, if quasi


crime, then it is a strict liability
iii.
offence.
Nature of punishment
Severe or less severe if severe
punishment, its not strict liability
offence.
Monetary or punitive if monetary,
its strict liability offence, and if
punitive, its not strict liability
offence.

Thats why cases in the past, most of


the accused cannot be found guilty
for rape because the elements of
mens rea cannot be proved.
Certainly, the common law approach
is correct but still not solving the
problem.
Common law approach is not applied
in Malaysia anymore.
S.6 and s.40 PC approach is applied in
Malaysia or via the back door
approach.
All offence must have actus reus and
mens rea
Usually, the requirement of AR and
MR are expressly mention in the
provision, i.e. via the front door.
S.375 AR is provided
S.375 is silent on the MR and via the
back door by inference from s.6 and

desires of the accused in view of the iii.


Will by making it strict liability and
threats held out by him. Evidence of the
ensure proper implementation of the
manner in which the complainant was
Against public moral, safety and
threatened was therefore of critical iv.
security
importance in order for the charges to be
sustained

Therefore, rape cannot be strict liability


offence.

i.

Interpretation of the s.375:


Literal approach the fact that in the
absent of the mens rea, it was the
intention of the law maker not to
include mens rea in s.375.
Therefore, cannot apply literal
approach because it will cause
injustice.

ii.
-

Common Law approach / Retention of


Mens Rea / Presumption of Mens Rea.
The maxim of actus reus non
facit reum mens sit rea
Even though s.375 was silent on
mens rea and the presumption of
mens rea is still a requirement.
DPP must prove the element of
mens rea
The problem with the common law
approach is that there is a need to
prove mens rea, but what is the
actual mens rea need to be proved.

s.40, MR is required.
S.6 provided that all offences shall be
subjected to general defences i.e.
chapter IV and S.40 stated that it can
be apply in Penal Code and others
law for the time being enforce.
What is the purpose of defences ?
The purpose of defences is to rebut
or negate the element of MR.
Here, MR is introduce via the back
door.
In the event where the defence of
mistake of fact is applicable as to the
age, for example, a girl was in a night
club and looks like an adult, and
found that she was not a virgin.
Taking into consideration of facts,
accused can rebut the MR, therefore
no MR and not guilty.
So far, via the back door approach is
the best approach and s.375 is not
strict liability offence.
However, Stanley Yeo was in the
opinion that in practice it is not easy
because MR i.e. intention is not easy
to prove.