GROUP 3 PRESENTERS :NUR ALIAH BT ROHAIZAN 2010332769NURUL ATIQAH BT SAM KAMARUDDIN 2010957093NURUS SAKINATUL FIKRIAH BT MOHD SHITH PUTERA 2010810698
• offence which involve UNLAWFUL SEXUALGRATIFICATION.• offence directed against women.• sexual penetration without the individual’s consent,obtained by force or threat of physical harm, or when avictim is incapable of giving consent.
Governed under SECTION 375 of PC. “A man commits the offences of rape when he has sexual intercourse with a woman …
SECTION 376 (1) “A man who is said to commit rape shall be punished with imprisonment for a term which may extend to twenty years, and shall be liable to whipping”. SECTION 376 (2), (3), (4) The punishment for the offence is enhanced when rape is committed in the circumstances provided in these three subsection (2),(3)&(4).
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 her or any other person, (c) the offence was committed in the company of or in the presence of any other person, (d) w/out her consent, when she is under 16 years of age, (e) with or w/out her consent, when she is under 12 years of age, (f) with her consent, when the consent is obtained by using his position of authority over her or because of professional r/ship or other r/ship 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 5 years and not more than 30 years and shall also be liable to whipping.
Also provides for enhanced punishment for ‘whoever commits rape on a woman whose r/ship to him is such that he is not permitted under the law, religion , custom or usage, to marry her’. SECTION 376 (4) Also imposes similar enhanced punishment on ‘whoever whilst committing or attempting to commit rape causes the death of the woman on whom the rape is committed or attempted’.
So, generally a man who was convicted for committing rape will get punishment of imprisonment not more than 20 years and whipping-Sec 376(1) However, if a man rape someone(woman) that fall under categories that is stated in sec 376 (2),(3)&(4),the rapist will get punishment up to 30 years of imprisonment and also liable for whipping .Thats is why it is called enhanced punishment.
Section 375(a) ; it is rape to have sexual intercourse by overcoming of active resistance on the woman’s part. *Resistance requirement PP v Nasar b. Ahmad ; there was evidence of penetration against woman’s will when the victim struggles, protest and crying during the sexual intercourse . PP v Ku Hang Chua ; the complainant struggled twice. First, when she wanted to free herself. She bits the accused’s hand. Secondly, when the accused forced open her thighs before she was forced into submission and was rape.
Section 375(b) Abdul Hamid v PP ; consent was done due to deliberation. Ratanlal & Dhirajlal’s Law of Crimes ; woman consented only if she freely agrees to submit herself and unconstrained possession of her physical. It is a voluntary and conscious acceptance of what is proposed to be done and concurred by the former.
• Consent must be differentiated from submission.• Consent should be obtained prior to the act. – Every consent involves submission. – Mere submission not amount to consent.• PP v Mohamed b Majid ; the accused undressed the victim, removed his own trousers and raped her. There were evidences of bruises on her arms, blood and seminal stains on her panties, tear of her hymen showed the sexual intercourse done without her consent.• Rao Harnarain Singh V State• Liew Kim Yong v PP
PP v Mohd Ridzuan bin Md Borhan ; Upon the invitation, the complainant met the accused and followed him as his pillion rider to Seremban, gone to shopping complexes until night. At 8.40pm, the accused took her to an oil palm plantation until 1.00am. She stayed there instead of trying to escape. She claimed to have been raped. Court held ; the sexual intercourse done with consent.
Section 375 ; a man is said to commit rape when he has sexual intercourse with a women against the womans will, without her consent, misconception and having sexual intercourse with a woman under 16 years old. Section 375 (c), (d), (e), (f) ; showed the consent obtained was unacceptable due to the some circumstances -invalid consent-
• Section 375 (c) ; – Consent obtained under fear or misconception of fact• Section 375 (d) ; – Consent obtained under the woman’s belief that she is legally married to or is someone to whom she would give consent• Section 375 (e) ; – Consent obtained without the woman understanding the nature and consequence to which she has given consent• Section 375 (f) ; – Induced through the offender’s position of authority or trust
Section 375 (c) ; “ the consent given by the complainant due to fear of death or hurt directly to herself or any other person, or consent obtained under misconception of fact”. Chiu Nang Hong v PP ; To show how consent was obtained. The woman was in fear when the man warn to strangle her if she shouted. She not dare to put up a fight because of his size. She just stood still, the appellant took off her clothes, carried her to bed, had the sexual intercourse.
PP v Aling bin Ayun ; The man threatened to kill the pregnant woman with the chopper. The trouser belt of the complainant was cut loose with the chopper by the accused. The woman try to struggle but failed. Sexual intercourse followed. Held ; she did not consent to the intercourse.
PP v Teo Eng Chan & Ors ; The accused had intercourse with the complainant without her consent. Or if it was with her consent, it was obtained by putting her in fear or hurt by threats to beat her up. PP v Emran binNasir Cheong You Hoi v PP
Section 375 (c) ; Consent obtained by misconception of fact. Misconception = mistake or error of judgment. Sulong bin Nain v PP ; Mistake is used in the sense of misconception or error of the judgment which is not intended to reach such result.
Misconception may take place as of fraudulent or innocent misrepresentation. R v Williams ; The appellant was engaged to give lessons in singing and voice production to a 16y girl. He had sexual intercourse with her by the reason that her breathing was not quite right to produce the voice properly therefore, operation is needed. The girl consented, is not for sexual intercourse but for some surgical operation to give her relief. She was persuaded to consent to what he did because the girl thought it was not sexual intercourse. She thought it was a surgical operation.
PP v Abdul Rahman Mohamad ; The complainant(20years old) was raped several times on the basis of spiritual-medical treatment to cure the ailment. The therapy were preceded by recitation of Quran verses, incantations in name of Allah or prayer and followed by sexual intercourse. The complainant was told that if she neglect to, she would became insane or meet with death. She consented to the repeated under the misconception that she was being treated for her ailments.
• Section 375 (d) ; – “Where the woman consents because of her belief that the offender is someone to whom she is married”.• PP v Papadimitrouspoulus ; – The accused (Greek immigrant) met a Greek immigrant girl. He took her with 3 of her relatives to Registrar’s with intention to marry her. The girl sign a form. The girl believed him and they have sexual intercourse.
• PP v Papadimitrouspoulus ; – The accused was charged for rape as there was no marriage ceremony. – The consent was invalid because the girl believed herself to be lawfully married to the accused.• R v Elbekay ; – The victim stayed with her boyfriend. – One night, they(bf,gf, friend) returned home drunk. The boyfriend slept in the living room and the victim in the bedroom. – The friend climbed into the victim’s bed. She assumed it was her boyfriend. After the friend penetrated her, she realized it was the friend.
Section 375 (e) ; “ Where the victim does not understand the nature and consequence of what she had consented to”. R v Flattery ; The victim(19y) and her mother went to see the accused for medical advice. The accused told the mother “nature’s string wanted breaking”. The mother did not know what does it mean and she agreed if it cured her daughter.
R v Flattery ; The victim went with the accused who had sex with her, she making feeble resistance believing she was in surgical operation. The accused was convicted as there was no evidence the victim knew the accused was about to violate her and believed the accused performing a surgical operation to cure her illness.
• Section 375 (f) ; – “Where the sexual intercourse is effected with the victim’s consent obtained by the offender abusing a position of authority or trust”.• Augustine Foong Boo Jang v PP ; – The accused was master of a maid. – He had established a position of dominance over the complainant as she depends on him financially. – She was afraid to do anything which may effect her employment. – Ct; it was not difficult to see why she did not resist.
• Section 375 (g) ; – “ It is rape to have sexual intercourse with a woman under 16years of age, with or without her consent”.• Mohd Salleh bin Nik Mohd Yusof v PP ; – Sexual intercourse with woman under 16y was rape even with their consent. – Prosecution did not have to prove absence consent.• R v Low Toh Cheng ; – When the victim is under 16y, her consent is immaterial even she consents.• The victim’s age and the accused who committed the act is important.
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