RAPE

Section 375 Penal Code

Definition…section 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 description:
 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 of authority or other
relationship of trust in relation to her;
 g) with or without her consent, when she is under sixteen years of age.
Punishment for rape s 376 (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.
 Imprisonment 20 years + whipping
Enhanced punishment for rape- Sec 376 (2)
 Whoever commits rape on a woman under any of the following circumstances:
 (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; or
 (g) at the time of the offence the woman was pregnant,
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.
(h) When by reason or on occasion of the rape the woman becomes insane;
(i) When he knows that he is afflicted with the Human Immuno-Deficiency Virus
(HIV/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is or may be transmitted to the
woman;
(j) when by reason or an occasion of the rape, the woman commit suicide; or
(k) when he knew the mental disability , emotional disorder or physical handicap of
the woman at the time of the commission of the crime

10 years < imprisonment < 30 years + whipping

Enhanced punishment for rape – sec 376(3)
 ‘whoever commits rape on a woman whose
relationship to him as 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 also
be punished with whipping of not less than 10
strokes’.
  8 years < imprisonment> 30 years +
whipping =/>10 strokes
Enhanced punishment – section 376(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 15 years and not
more than thirty years, and also be punished
with whipping of not less than 10 strokes’
 Death penalty
 15 years <imprisonment<30 years +
whipping =/>10 strokes
Rape in marriage

 It is not rape for a man to have sexual

intercourse with a woman who is his wife by
marriage which is valid for the time being in
force.
Exception under section 375
 Sexual intercourse by a man with his own
wife by a marriage is valid under any
written law for the time being in force, or is
recognized in the Federation as valid, is
not rape
 No rape in marriage
Test to determine marriage/ wife
 Explanation 1
 A woman living separately from her husband
under a decree of judicial separation or a decree
nisi not made absolute; or
 who has obtained an injunction restraining her
husband from having sexual intercourse with her
 shall be deemed not to be his wife for the purpose of this
section
 Explanation 2
 A 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 purpose of
this section
Husband causing hurt in order to have
sexual intercourse
 Sec 375A ‘any man who during the
subsistence of a valid marriage cuases 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.
Elements in proving rape

 Sexual intercourse between man and woman

 Fulfilled any one of the situations under
section 375 a) – g)
Actus reus of rape

 Unlawful intercourse
 Without consent, or
 With consent if consent is not voluntarily
given, under mistake
 Honest belief that the woman consented,
even though it is not reasonable can be
considered as a a valid consent.
DPP v Morgan

 The husband invited few friends to have

intercourse with his wife and assured them
that the wife would give her consent.
 The wife was sleeping when the incident
happened. She resisted but helpless.
 Court: If the accused persons believed that
the woman consented, they cannot be found
guilty of rape.
 The accused were not guilty of rape
Sexual intercourse - definition

 Insertion of a man’s erect penis into a

woman’s vagina, usually followed by the
ejaculation of semen
Explanation

 Penetration is sufficient to constitute the

sexual intercourse necessary to the offence
of rape
 Lightest penetration is also sufficient
 Not necessarily a man is ejaculation so long
penetration is proven
 Not a continuing offence. A single act
sufficient to
Cheong You Hai v PP (1999) MLJU 518
 The accused was charged for rape and he raised a defense:
 No stain on him and the victim’s cloth

 The victim’s testimony that she had been raped by the accused

was not corroborated,

 There had been no penetration

 Court: Ejaculation is not a necessary element to establish a

charge of rape. The only element to be established is
penetration.
 The defense was rejected because:
 He was only detained 3 days after the incident. The evidence

from the cloth might have been disappeared

 There was a case where penetration will not leave any effect/

trace
 Appeal dismissed
Nasrul Annuar bin Abd Samad v PP [2005]
1 MLJ 619
 The victim, at the time of the alleged rape, did
not see anything that happened to her from
the stomach downwards. She felt a
penetration in her private parts and presumed
it was the accused of the accused.
 The accused appeal and his appeal was
allowed on the reason that there was no clear
evidence to show that it was the accused’s
penis that had penetrated into the victim’s
private part
a) Against her will
 Not voluntarily done by the woman
 Involves element of force and resistance
 Prove of resistance – tearing of cloth
 Infliction of personal injuries or injuries to
private part
PP v Nasar bin Ahmad [1986] 2 MLJ
71
 The act of sexual intercourse was effected
despite struggles, protest and crying on the
victim’s part.
 This was sufficient evidence of penetration
against her will
PP v Ku Hang Chua [1975] 2 MLJ
99
 There was evidence that the complainnat

struggled to free herself from the hold of the

two accused. She bit the accused’s hands
while he was holding her. She shouted for
help a few times, in which event, the accused
tied a towel on her mouth. She struggled
again when the accused forced open her
thighs before she was finally forced into
submission and was ravished. She also lost
in the struggle her metal locket
b) Without her consent
 Without the consent of the woman
 Consent – assent in the mind of a person to a
particular act done by another
Ratanlal & Dhirajlal’s Law of crime
 ‘Consent denotes an active will in the mind of the person
to prevent the doing of the act complained of. A woman
is said to consent only if she freely agrees to submit
herself while in free and unconstrained possession of her
physical and moral power to act in a manner she
wanted. Consent implies the exercise of free and
untrammelled (not deprived of freedom of action)right to
forbid or withhold what is being consented so it is always
a voluntary and conscious acceptance of what is
proposed to be done by another and conquerred by the
former’
Consent and submission

 Every consent involve submission

 However, every submission might not be
given with consent
Rao Harnarain Singh v State [1958] GLJ
563
 The accused was the wealthy employer of the

deceased’s husband. He urged the husband

who worked as his worker to bring his wife to the
accused’s party where the accused and his
friend forced the deceased woman into having
sexual intercourse. She cried all night long and
died in the morning.
 Coldrige J: “There is a difference between
consent and submission. Every consent involves
a submission. But it by no means follow that a
mere submission involves consent”
PP v Mohamed bin Majid [1977] 1 MLJ
121
 The victim held on a rubber tree in an embracing
position. She was pulled away by the accused, who then
pushed her to the ground, undressed her, removed his
owned trousers and then raped her. She decided to
submit rather than struggle as she was afraid that her
assailant might strangle her.
 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 as a
fact sexual intercourse did take place without her
consent.
Liew Kim Yong v PP [1989] 3 MLJ
323
 The complainant and the accused had known

each other for about a year and had been out

on a number of occasions in the company of
others. Although no injuries were found on
the complainant, the court was satisfied
sexual intercourse took place without her
consent as she was frightened, confused and
upset at what was done to her.
PP v Mohd Ridzuan bin Md Borhan [2004]
5 MLJ 300
 The complainant had on the invitation of the accused,
met him and followed him as his pillion rider to
Seremban. They had gone to shopping complexes in
Seremban until night and about 8.40 pm, the accused
took the complainant to an oil palm plantation until 1 am.
There she stayed despite opportunities to escape. She
claimed to have been raped then.
 Court: on the facts and circumstances, the sexual
intercourse was more consistent with the existence of
consent.
Free consent

 Consent must be freely given and it must be

given when a person is sound mind
 Sleeping person can never gives consent
Reg v Mayer
 A woman on bed, the accused came and
joined her and had intercourse with her.
 She thought that he was her husband
 Court: The accused committed rape
R v Camplin

 The accused gave liquor in order to excite a

woman, and had sexual intercourse with her
 Defense: The woman volunteer with the act.
 Court: The woman is under the influence of
liquor. The consent is not considered as
freely given.
 The accused was held guilty of rape
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
 The woman gives consent under certain
threat
 Fear of death to herself or any other person
 Consent was obtained under a
misconception (mistake) of fact, and the man
knows the fact
Chiu Nang Hong v PP [1963] MLJ 119
 No question on consent and sexual
intercourse because
 Consent was given
 Sexual intercourse was admitted

 Question was as to how consent was

obtained
Story .. Evidence accepted by the court
 She was driven to a house…The appellant said
her husband was there and invited her to enter.
When she did so, he pushed her into a room and
secured the door. He told her not to shout and
putting his hands over the neck said if she
shouted he would strangle her. She was
shocked and because of his size did not dare to
put up a fight. She was so frightened that she
just stood still in the middle of the room. The
appellant then took off her clothes, carried her to
the bed and had sexual intercourse with her
PP v Aling bin Ayun [1970] 2 MLJ
160
The submission to sexual intercourse was because the
accused had held a chopper. The trouser belt of the
complainant was cut loose with the chopper by the
accused was then threatened her with it. She was
frightened and tried to struggle free but could not. She
was 4 months pregnant. After her trousers dropped, she
was dragged to a spot some 6 feet away, pushed down
by the accused who, untied his own trousers and got on
the top of her. Sexual intercourse followed.
 The court was satisfied that:
 “The man threatened to kill her with the chopper. I
have also no doubt that she was put in fear of her
life. It was through this fear that she gave herself
to the assailant. I am satisfied she did not consent
to the intercourse”.
PP v Emran bin Nasir [1987] 1 MLJ
166
 A submission by the victim to the act of
sexual intercourse but the willingness to
allow the physical act was that:
 “She dared not struggle because she was afraid
and that when she cried he told her harshly not to
cry. She was frightened and did not know what to
do although she objected to what he was doing
and did not agree to it.”
 The court was satisfied rape had occurred,
noting the victim:
 “…was barely 17 at the time, recently married to a foreigner who
had been in trouble with the police with his passport in the past
and in awe of the police. When confronted by a police officer who
behaved as the accused did, she did not know how to react.
When he removed her pants, she was paralysed with fear, and
incapable of resistance. I am sure that she submitted , but am
equally certain that she did not consent. I find that the defendant
forced himself upon her and that the sexual intercourse which
took place, as I find it did, was without her consent and against
her will and that the defendant knew this.”
PP v Teo Eng Chan & Ors [1988] 1 MLJ
156
 The court found that the accused had
intercourse with the complainant, that it was
without her consent, or if it was with her
consent, it was obtained by putting her in fear
of hurt by threats to beat her up.
With consent, obtained by a misconception
of fact
 Misconception of fact – not defined
 Mistake or error of judgment
 Sulong bin Nain v PP [1947] MLJ 138

 “Now mistake, as this term is understood in

jurisprudence, is used I the sense of
misconception or error of judgment not
intended to produce the result attained”
See PP v Abdul Rahman Mohamad [2005] 1
CLJ 700
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

 Consent is given by a woman

 The man knows that he is not the husband of
the woman
 She believes (mistake) that the man is a man
to whom she is or believes to be lawfully
married or to whom she would consent
 Legally married or someone she would consent
PP v Papadimitroupoulos
 The accused was a Greek immigrants settled in Australia
and spoke fluent English. The accused met a newly-
arrived Greek immigrant girl who understood very little
English. The accused took the girl with three of her
relatives to the Registrar’s office and asked the girl to
sign a form which he claimed was a notice of intent to
marry and that after the ceremony, they were already
married. The girl believed him and they have sexual
intercourse. The accused was later charged for rape.
There was no marriage ceremony. The consent to the
sexual intercourse was invalid as it was given because
the girl believed herself to be lawfully married to the
accused.
R v Elbekay [1995] Cr LR 163
 The victim lived with her boyfriend. One night,
the victim, her boy friend and a friend went out
and returned home drunk. The boyfriend slept in
the living room and the victim in the bedroom.
During the night, the friend climbed into the bed
with her, and half-asleep, the victim assumed it
was her boyfriend. It was only when the friend
penetrated her that she realised it was not her
boyfriend and pushed him away.
 The accused was convicted for rape
R v Flattery (1877) 13 Cox 388
 The girl, 19 together with her mother sought for advice from the
doctor with respect of her illness. After examining her, he told the
mother: ‘nature’s string wanted breaking’.The mother did not know
what he meant but she did not mind if it cured her daughter. At that
moment the victim had a fit and the accused repeated to her what
he said to her mother. The victim then went with the accused who
had sex with her, she making feeble resistance believing he was
treating her medically and was performing a surgical operation
 The accused was convicted as there was no evidence the victim
knew the accused was about to violate her person but on the
contrary, believed that the accused was performing a surgical
operation to cure her illness.
R v O’Shay

 The accused was charged for rape of a

woman.
 The woman gave testimony that the accused
disguised as a doctor, making medical
treatment and induced her to allow him to
have intercourse with her.
 Where the women has given consent, there
was not a case of rape. The man was
convicted for rape because of mistake.
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

 Consent is given but the woman does not

understand:
 The nature
 Effect arising out of her consent

 Example where the woman is drugged or

intoxicated by the offender
PP v FADLILALAILI BIN ABDULA KADEH
& ANOR
 The victim was drugged by the offenders who
administered a substance to her by placing it in a drink
which they persuaded her to drink.
 Although she did not consent to sexual intercourse, she
testified that she was unable to resist them as she was
weak and drowsy due to the effects of drug.
 Held: The accused were guilty of rape as the victim had
not consented to the sexual intercourse
Rizuan v PP
 The girl was 17 and intellectual subnormal.
 The accused was charged for raping her
 To prove the 5th limb, the prosecution must
prove that the victim did not understand the
nature of the act and the effect of the act
when she gives consent.
 The prosecution cannot prove beyond
reasonable doubt that the complainant/ victim
did not have some basic awareness of sexual
matter
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

 Where the accuse is in a position of trust or authority, a

heavy sentence is to be imposed.
 Example where the accused is a guardian, police
officer etc.
Augustine Foong Boo Jang v PP
[1990] 1 MLJ 225
 The accused was a master of a maid. He had
established a position of dominance over the
complainant as she was completely dependant on him
financially. She was afraid of doing anything which might
prejudice her position and her employment. In the court’s
view, it was not too difficult to see why she did not resist
perhaps as strenuously as had been suggested she
should have done. It was apparent from her own story
that she did put as much as resistance as she could.
PP v EMRAN BIN NASIR[1987] 1
MLJ 16
 The court held that the public interest
required a heavy sentence as the rapist
was a police officer and was therefore a
guardian of the law, with a duty to uphold
it.
g) With or without her consent, when she is
under sixteen years of age
 Whether the girl gives consent or not
 The age of the girl is below 16
 Any sexual intercourse with a woman under the age of sixteen years
is rape, even if she consents to the act
 This provision is for the protection of young women who may not
comprehend the far reaching implications of their actions, and to
prevent men taking advantage of their youth.
 This form of rape is known as “statutory rape”
Norman v Gantis
 The accused was charged for raping a 15 year
old girl. He pleaded guilty and was sentenced.
He made an appeal and pleaded that the girl
was his girlfriend and she consented to the act.
She voluntarily followed the accused and the
latter did not put any physical force on the
victim.
 Court: Consent was immaterial as she was still
below the age of 16. The accused had taken
advantage over her maturity to have intercourse
with her.
Syed Tahir v PP
 The appellant was convicted of raping a minor aged
13 years and 10 months. Court held that the
charged had been proven i.e
 Intercourse
 Penetration
 No consent as the girl was below 16
 Court: the medical examination had corroborated
that the girl had had an intercourse. The fact that
she gave consent or not was not material as she
was below the age of 16 according to the Code. A
person commits an offence of rape when he has
sexual intercourse with a girl below the age of 16
years.
JAMALUDDIN HASHIM v PP[1999]
4 MLJ 1
 K.N Segara J: in statutory rape cases the
police investigating officer has to primarily
ascertain that the age of the alleged victim is
below 16 years of age at the time of the
offence”
 When the victim is under 16 years, her
consent is immaterial even if she consents

 Cases:
 R v Low Toh Cheng [1941] MLJ 1
 Syed Abu Tahir a/l Mohamed Esmail v PP
[1988] 3 MLJ 485
 Mohamad Fairuz b Mahmud v PP [2004]
MLJU 98
 PP v Nordin bin Yusmadi [1996] MLJU 184