2. Rape
S. 376
punishments
Exceptions –
sexual i/course
by a man with
his own wife x
rape
Explanation -1
Rapist
man
Ingredients
S. 375
General
provisions
Sexual i/course
done in any of
the 7 c/stances
mentioned
Victim
Woman
Think ??? -Husband
causes hurt/fear of hurt
or death to wife - to
have sexual i/course
S 376(1) – non
aggravated cases
S 376 (2) –
aggravated
cases
2
3. Rape
-meaning
Originated from
latin word ‘rapio’
– to seize or to
forcefully ravish a
woman w/out her
consent
Generally -
a violent
offence
Literally – to force
a woman to have
sexual intercourse
with the accused
Oxford Concise
Dictionary – the act of
taking anything by force,
violent, seizure of goods,
robbery. The act of
carrying away a person
especially woman by
force
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4. Sexual
intercourse
Insertion of a
man’s erect penis
into a woman’s
vagina, usually
followed by the
ejaculation of
semen.
Explanation 375 --penetration
sufficient to constitute rape.
Rape not a continuing offence
but a single act of
s/intercourse.
Mere penetration to vulva
amounts to penetration
Penetration may occur though
hymen remains intact or not
ejaculation of semen
NasrulAnuar
bin Abdul
Samad v PP
4
5. The explanation under section 375 states that penetration is
sufficient to constitute the sexual intercourse to the offence of
rape. As in the case of Cheong You Hoi v PP, the court held
that for rape, any act of penetration is sufficient and it is not
necessary to prove anything beyond that, as for example the
fact of ejaculation or present of semen.
In rape, the penetration must be by the penis of the man.
In the case of Nasrul Anuar Bin Abd Samad v PP, [2005] 1
CLJ 193 the victim at the time of the alleged rape, did not see
anything that happen to her from the stomach downwards. She
felt a penetration in her private part and presumed it was the
penis of the accused. The appeal of the accused was allowed
and one of the grounds was that there was no clear evidence to
show that it was the accused’s penis that had penetrated into
the victim’s private part.
6. RAPE UNDER PENAL CODE
Section 375 provides that a man is said to commit rape when he
has sexual intercourse with a woman under circumstances stated
under limb (a) to limb (g) of the section.
9. (a)
Against her will
To have sexual intercourse despite of active
resistance on the woman’s part
PP v Nasar bin Ahmad [1986] 2 MLJ 71
-struggles, protest and crying –
PP v Ku Hang Chua[1975] 2 MLJ 99
- complainant struggled to free herself, bit the
accused hand, She shouted for help a few
times, in which event the accused tied a
towel on her mouth. 6
10. Cases
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.
Liew Kim Yong V PP [1989]
3 MLJ 323
Held : sexual i/course w/out
her consent bcoz she was
frightened, confused and upset
at what was done to her
PP v Mohamed bin Majid
[1977] 1 MLJ 121
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.
11. (b)
Without
consent
Consent was defined in the case of R v Abu Kassim Babu [1940] MLJ
243 as consent is an act of reason and means an active will in mind of
person to permit the doing of an act and acknowledge of what has
been done. A mere act of helpless resignation in the face of
compulsion, quiescence, nonresistance or passive giving in because of
fear or duress cannot be consent.
•
Consent is an act of reason, accompanied by deliberation, the
mind weighing as in a balance, the good and the evil on each
side.
12. • Consent is voluntary accordance with, or concurrence in, what is done or
proposed by another.
• The emphasis should be on the state of mind of the victim immediately
before the act of sexual intercourse. It should be obtained prior to the act.
13. R v Camplin (1845) 1 Cox 22
Fletcher (1859) 8 Cox 131
14. However, consent must be differentiated from submission. Every consent
involves a submission. But, it is no means follow that a mere submission
involves consent.
A mere act of helpless resignation, in the face of inevitable compulsion,
quiescence, non-resistance, or passive giving in, when volitional faculty is
crowded with fear or vitiated by duress cannot be deemed to be ‘consent’.
15. In PP V Mohamed Bin Majed [1977] 1 MLJ 121, there was evidence that the
victim held on to a rubber tree in an embracing position. She was pulled away
by the accused who then push her to the ground, undress her, removed his own
trousers and then rape her. She decide to submit rather than struggle as she was
afraid that her assailant might strangle her.
The court decide that, on the evidence on bruises on her arms, the blood and
seminal stain 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 act sexual intercourse did take place without her consent.
In the case of Liew Kim Yong v PP [1989] 3 MLJ 323, the complainant and
the accused had known each other about a year and had been out a number of
times together. Although no injuries was found on the complainant, the court
was satisfied sexual intercourse took place without her consent a she was
frightened, confused and upset at what was done to her.
16. Under section 375 (c), the consent to the sexual intercourse
obtained under fear of death or hurt to complainant herself or
any other person or obtained under misconception of fact,
where the consent had been so obtained, the sexual intercourse
is an offence of rape.
( c)
fear or misconception of fact
17. ( c)
fear or misconception of fact
Fear of death or hurt to
complainant herself or
any other person
Misconception of fact
- Not defined but use synonymously
with mistake or error of judgment
- A misconception of fact may arise
from a fraudulent or innocent
misrepresentation.
-
PP v Aling bin Ayun[ 1970]
2 MLJ 160
The submission to the sexual
intercourse b’coz 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.
PP v Abdul Rahman Mohamad
[2005]1 CLJ 700
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18.
19. (d)
Legally married or someone
she would consent
P P v Papadimitroupoulos Accused
greek immigrant settled in Australia
and spoke fluent English.Meet newly
arrived greek immigrant girl and
understood very little English.
Took her & 3 other relatives to registrar’s
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 and
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 and
pushed him away.
COA upheld the conviction of rape.
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This section relates to situation where the woman consents
because of her belief the offender is someone to whom she
married or would consent to have sexual intercourse.
20. Section 375 (e) provides for the situation where the victim
does not understand the nature and consequences of what
she had given her consent to.
(e)
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:
“nature’s string wanted breaking”. Mother not understand but 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
the mother. Victim went with the accused and 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.
21. (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 victim’s 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. 13
22. (g)
Statutory
rape
It is rape to have
sexual i/course with a
woman under 16 years
of age
Her consents is
immaterial
Prosecution must
adduce positive proof
of victim’s age.
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-
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