(4) rape

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disclaimer - this is just an attempt to answer the question for tutorial/assignment, pls double check with ur own notes for confirmation

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(4) rape

  1. 1. RAPE The parties involve are A, as the accused and B, as the victim. Then, the issue here iswhether B can be held liable for offence of rape as defined under Section 375 of the Penal Code andpunishable under Section 376 of the same code for having sexual intercourse with B without herconsent (according to question).LAW PRINCIPLE Section 375 provides that a man is said to commit rape when he has sexual intercourse witha woman under circumstances stated under limb (a) to limb (g) of the section.ACCORDING TO QUESTION -> Section 375 limb c provides that a man commits the offence of rapewhen he has sexual intercourse with a woman with her consent, when her consent has beenobtained by putting her in fear of death or hurt to herself or any other person, or obtained undermisconception of fact and the man knows or has reason to believe that the consent was given inconsequence of such misconception. Rape was defined in the case of PP v Mohd Arfah Jasmi as the act of taking anything byforce; violence seizure (of goods), robbery or the act of carrying away a person (especially woman)by force. Then, sexual intercourse also was defined as the insertion of a man’s erect penis into awoman’s vagina, usually followed by the ejaculation of semen. The explanation under section 375 states that penetration is sufficient to constitute thesexual intercourse to the offence of rape. As in the case of Cheong You Hoi v PP, the court held thatfor rape, any act of penetration is sufficient and it is not necessary to prove anything beyond that, asfor example the fact of ejaculation or present of semen. Then, consent was defined in the case of R v Abu Kassim Babu as consent is an act of reasonand means an active will in mind of person to permit the doing of an act and acknowledge of whathas been done. A mere act of helpless resignation in the face of compulsion, quiescence, non-resistance or passive giving in because of fear or duress cannot be consent.CIRCUMSTANTIAL CASES DEPENDING ON THE QUESTIONLIMB A - AGAINST HER WILL Section 375 (a) states it is a rape to have sexual intercourse by overcoming of activeresistance on the woman’s part. In the case of PP v Nasar, the act of sexual intercourse was effecteddespite struggles, protests and crying on the victim’s part. This was sufficient evidence ofpenetration without her will.LIMB B – WITHOUT HER CONSENT Section 375 (b) relates to sexual intercourse without the consent of the woman. Consent isan act of reason, accompanying by deliberation, the mind weighing as in a balance, the good and theevil on each side. • Liew Kim Yong v PP – dated – a year – dinner – no injury – w/out consent – the victim was frightened, confused, and upset. • PP v Mohd Ridzuan – pillion rider - Seremban - shopping complex-oil palm (8.40 pm -1.00 am) – stayed, not tried to escape – with consent.
  2. 2. LIMB C – FEAR OR MISCONCEPTION OF FACT Under section 375 (c), the consent to the sexual intercourse obtained under fear of death orhurt to complainant herself or any other person or obtained under misconception of fact, where theconsent had been so obtained, the sexual intercourse is an offence of rape. As stated in the case of PP v Abdul Rahman, the accused was convicted for rape of 20 years-old girl. The prosecution case was that he had raped the complainant several times over a period of3 months on the pretext of spiritual medical treatment to cure complainant’s persistent ailment. The prosecution contended that it had been impressed upon the complainant that if she didnot submit to the sexual intercourse she would become insane or would meet death. So thecomplainant submitted to the accused’s will under misconception of fact that she was being treatedby a prominent spiritual healer and that insanity or death would befall her if she had resisted. In thiscase the court of appeal reaffirms the decision of the trial judge where the consent given was basedon misconception of fact and thus the sexual intercourse was an offence of rape.LIMB D – LEGALLY MARRIED OR SOMEONE SHE WOULD CONSENT This section relates to situation where the woman consents because of her belief theoffender is someone to whom she married or would consent to have sexual intercourse. • PP v Papadimitroupoulos – victim only speak English –asked to sign form –claimed to be form of marriage – had sex – no marriage ceremony – consent invalid. • R v Elbekay – victim, accused and victim’s boyfriend returned drunk – went to victim’s room – had sex –consented assumed his boyfriend – pushed the accused when realized – convicted.LIMB E – NOT UNDERSTAND NATURE AND CONSEQUENCE Section 375 (e) provides for the situation where the victim does not understand the natureand consequences of what she had given her consent to. • R v Flattery – went to accused – medical advice – advice to perform ‘surgery’ – consented – did not know what the accused meant – believed she was treated medically – convicted – victim did not knew the accused was about to violate her person – only believed accused was performing a surgical operation – cure her illness.LIMB F – ABUSE POSITION OF AUTHORITY OR TRUST This section provides for the situation where sexual intercourse is effected with the victim’sconsent obtained by the accused abusing a position of authority or trust. In the case of AgustineFoong v PP, the accused was master of maid. He had a sex with the victim and the victim consentedbecause she feared that she would be deprived off her financially if she resisted.LIMB G – STATUTORY RAPE Section 375 (g) states that it is rape to have sexual intercourse with a woman under 16 yearsof age, with or without her consent. It was stated that in the case of Mohd Fairuz v PP that when thevictim is under 16 years, her consent is immaterial even if she consents.

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