RAPE

Introduction
Rape is the act by which a man forcibly or
fraudulently or by any other acts as defined by the
law commits a sexual intercourse against a woman
Rape can only be committed by a man against a

woman where penetration must be proven. Hence a

complete sexual intercourse is unnecessary to prove
a case.
Under the Penal Code, incest is defined and

governed as an offence distinct to rape ss.376A &

B
s.375 extensively defines the offence of rape.

S.375 is gender specific

 Rape

S. 375
General S. 376
provisions punishments

S 376(1) non S 376 (2)

Ingredients
aggravated cases aggravated
cases

Rapist Victim Exceptions

Sexual i/course
man Woman sexual i/course
done in any of by a man with
the 7 c/stances his own wife x
mentioned rape
Explanation
-1&2
S.375
A man is said to commit rape who, except in the case hereinafter excepted,
has sexual intercourse with a woman under circumstances falling under any of
the following descriptions:

a) against her will;

b) without her consent;
c) with her consent, when her consent has been obtained by putting her in fear
of death or hurt to herself or any other person, or obtained under a
misconception of fact and the man knows or has reason to believe that the
consent was given in consequence of such misconception;
d) with her consent, when the man knows that he is not her husband, and her
consent is given because she believes that he is another man to whom she
is or believes herself to be lawfully married or to whom she would consent;
e) with her consent, when, at the time of giving such consent, she is unable to
understand the nature and consequences of that to which she gives consent;
f) With her consent, when the consent is obtained by using his position of
authority over her or because of professional relationship or other
relationship of trust in relation to her;
g) with or without her consent, when she is under sixteen years of age.
 ExplanationPenetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.
ExceptionSexual 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.
Explanation 1A woman
(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.
 Explanation 2A Muslim woman living
separately from her husband during the
period of iddah, which shall be calculated
in accordance with Hukum Syara, shall be
deemed not to be his wife for the purposes
of this section.
S.375(The victim &perpetrator:
Gender specific)
There is no offence if a woman forces a man
to have a sexual intercourse.
A man who have sexual intercourse with

another man, with or without consent, can

be charged for the offence of carnal
intercourse under ss. 377B or 377C
There is no offence if a woman forces

another woman to be romantic to each

other unless if there is sexual connection by
object s.377CA
Sexual intercourse
Explanation for s.375 - Penetration is sufficient to constitute
the sexual intercourse necessary to the offence of rape.
Penetration: When a man places his penis into the private
part of a woman, although only slightly. What about the use
of objects?
It is not necessary that there should be complete penetration
of penis with emission of semen and rupture of hymen.
Cases:
PP v Mohamad Malek Ridhzuan bin Che Hassan [2014] 1 MLJ
363 The absence of semen (spermatozoa) inside victim's vagina did
not mean there did not occur insertion of the respondent's genital into
victim's vagina. The presence of semen was not a requirement by law in
order to prove the offence of rape. For the offence of rape, what was
required is penetration and not ejaculation
 PP V Mohd Arfah Jasmi
Penetration is sufficient to constitute an

offence of rape and it is not necessary to

prove anything beyond that (ie: ejacluation
or present of semen
Against the will vs without
consent
There is slight confusion in differentiating the
two requirement as they were not
distinguished by Malaysian courts
Queen Empress v Gopala [1896] Rat Un Cr C

865: every act done against the will of a

person is an act done without her consent..an
act done without the consent of a person is
not necessarily against his will
Consent is defined under s.90 where it

negatively identifies what does not constitute

consent.
s.90
A consent is not such a consent as is intended by any
section of this Code-
a) if the consent is given by a person under fear of injury,
or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that the
consent was given in consequence of such fear or
misconception;
b) if the consent is given by a person who, from
unsoundness of mind or intoxication, is unable to
understand the nature and consequence of that to which
he gives his consent; or
c) unless the contrary appears from the context, if the
consent is given by a person who is under twelve years
of age.
 The circumstances provided under s.90 are invoked when
there is fact to show that consent has been obtained
where the victim had submitted to the act of sexual
intercourse.
However, there is distinction between consent and
submission consent always imports submission whereas
submission does not necessarily import consent. Eg:
Augustine Foong Boo Jang v PP [1990] 1 MLJ 225
Hence, consent need to be inferred based on facts and
surrounding circumstances of each cases.
To rely on defence of consent, the accused must prove
that the consent was obtained before the sexual
intercourse
PP v. Abdul Rahman Mohamad
[2005] 1 CLJ 700
The issue whether the complainant had consented to having
sexual intercourse with the accused was a question of fact.
the evidence that the complainant submitted to the
accuseds will under the misconception of fact that she was
being treated by a prominent spiritual healer, and that
insanity or even death would befall her if she had resisted.
The complainant had consented to the repeated acts of
sexual intercourse under the misconception that she was
being treated for her ailments. In truth, her mind was so
clouded and confused and devoid of free will that it would be
a travesty of justice to hold that she had freely consented to
the accuseds repeated sexual assaults
A complainants state of mind immediately before the act of
sexual intercourse is of central importance.
 R V Abu Kassim Babu
Consent is an act of reason and it also

means an active will in the mind of person

to permit the doing of an act and
acknowledge to what has or will be done.
Helplessness and resignation in the face of
compulsion, non-resistance or passive
giving in because of fear or duress cannot
be consent.
Mens rea
s.375 makes no reference to any mens
rea.
Hence, what if the accused invoked

defence of mistake that he honestly

believe that the woman is consenting to
the sexual intercourse or that the woman
was above 16 years of age?
The presumption of mens rea
approach
This approach was established based on
English common law principles without
reference to the Penal Code.
The principle established that in the absence

of any express statutory provision, there is a

clear presumption that mens rea is implied.
Eg: Lim Chin Aik v The Queen [1963] AC 160;

PP v Zainal Abidin b Ismail [1987] 2 MLJ 741

the offence could not be committed if that

essential intention was absent
s.375(a)against her will;

Section 375 (a) states it is a rape to have

sexual intercourse by overcoming of active
resistance on the womans part.
 PP v Nasar, the act of sexual intercourse
was effected despite struggles, protests and
crying on the victims part. This was
sufficient evidence of penetration without
her will.
Section 375 (b)
-relates to sexual intercourse without the
consent of the woman. Consent is an act of
reason, accompanying by deliberation, the
mind weighing as in a balance, the good and
the evil on each side.
 Liew Kim Yong V PP [1989] 3 MLJ 323
Complainant & accused known each other about a
year/ been out few occasions. Though x injures found
on the complainant.
Held : sexual i/course w/out her consent bcoz she was
frightened, confused and upset at what was done to her
 PP V Mohd Ridzuan Md Borhan [ 2004] 5 MLJ 300
Held : on the facts and circumstances , the sexual
i/course was more consistent with the existence of
consent.
 PP v Mohamed bin Majid [1977] 1 MLJ 121
The victim decided to submit rather then
struggle as she was afraid that the accused
might strangle her.
Held: On the evidence of bruises on her arms,
the blood and seminal stains on her panties, the
recent tear of her hymen, the promptness in
resorting to the police and the manner in which
she was attacked, the court found that as a fact
sexual intercourse did take place without her
consent.
s.375(c)
FEAR OF DEATH OR HURT
PP v Aling bin Ayun[ 1970] 2 MLJ 160
The submission to the sexual intercourse bcoz the

accused had held a chopper

 PP v Teo Eng Chan & Ors [1988] 1 MLJ 156
The i/couse w/out her consent or if with her consent it
was obtained by putting her in fear of hurt by threats to
beat her up.
 MISCONSEPTION OF FACT
PP v Teo Eng Chan & Ors [1988] 1 MLJ 156
- The i/couse w/out her consent or if with her consent it

was obtained by putting her in fear of hurt by threats to

beat her up.
s.375(d)
Legally married or someone she would consent

PP v Papadimitroupoulos
Took her & 3 other relatives to registrars office
asked the girl to sign claimed that it was a
notice of intent to marry n after that ceremony
they already married. Girl believed him n had
sexual i/course. Later he was charged with
rape
Held: There was no marriage ceremony. The
consent to the sexual i/course was invalid as it
was given bcoz the girl believed herself to be
lawfully married to the accused
 R v Elbekay [1995] Cr LR 163
Victim lived with her boyfriend
One night her boyfriend and a friend went out n
returned home drunk.
Boyfriend slept in the living room n victim in the
bedroom
The friend climbed into the bed n half asleep,
victim assumed it was her boyfriend
Only when the friend penetrated her she realised
it was not her boyfriend n pushed him away
COA upheld the conviction of rape.
(e)
Do not understand nature and consequence

R v Flattery (1877) 13 Cox CC 388

Victim, aged 19 with her mother went to see the accused for medical
advice to cure her fits. After examining her, he told the mother: natures
string wanted breaking. Mother x understand but did x mind if it cured
her daughter.
At that moment the victim had a fit and the accused repeated to her what
he said to the mother. Victim went with the accused n had sex with her, she
making feeble resistance believing he was treating her medically and
performing surgical operation.

Held: The accused was convicted as there was no evidence that the victim
knew the accused was about to violate her person but on the contrary,
believed accused was performing a surgical operation to cure her illness.
(f)
Abuse position of authority or trust

Introduced by the Penal Code (Amendment) Act 2006

Covers situation where sexual i/course is effected with
the victims consent obtained by the offender abusing a
position of authority or trust
 Augustine Foong Boo Jang v PP [1990] 1 MLJ 225
The accused master of the maid- established a position
of dominance over the complainant - as she dependent
on him financially.
The victim was afraid of doing anything which might
prejudice her position and her employment.
Held: It was not too difficult to see why she did not
resist perhaps as strenuously as had been suggested she
should have done.
(g)
Statutory rape
It is rape to have sexual i/course with a woman under
16 years of age
Her consent is immaterial
 Mohd Salleh bin Nik Mohd Yusof v PP [2005] 3
AMR 107
Sexual i/course with them was rape even with their

consent. Absence of consent is irrelevant for proving the

offence-
See also: Jamaluddin bin Hashim v PP

[1999] 4 MLJ 1
Mahendran A/L Manikam v Pendakwa Raya

[1997] 4 MLJ 273

 PUNISHMENTS

S 376(1)
S 376 (2)
non aggravated
aggravated cases
cases
s.376 - Punishment
(1) Subject to subsections (2), (3) and (4),
whoever commits rape shall be punished
with imprisonment for a term which may
extend to twenty years, and shall also be
liable to whipping.
 (2) Whoever commits rape on a woman under any of the following
circumstances, shall be punished with imprisonment for a term of not
less than ten years and not more than thirty years and shall also be
liable to whipping:
a) at the time of, or immediately before or after the commission of the
offence, causes hurt to her or to any other person;
b) at the time of, or immediately before or after the commission of the
offence, puts her in fear of death or hurt to herself or any other
person;
c) the offence was committed in the company of or in the presence of
any other person;
d) without her consent, when she is under sixteen years of age;
e) with or without her consent, when she is under twelve years of age;
f) with her consent, when the consent is obtained by using his position
of authority over her or because of professional relationship or other
relationship of trust in relation to her;
(3) 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

(4) 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.