Gatal went to Seksi's apartment pretending to be an officer and took out a knife, instructing her to remove her clothes. Seksi begged him to leave but was too afraid to resist physically. They had intercourse. Gatal can likely be charged with rape because the sexual act occurred without Seksi's consent, as she submitted out of fear for her safety due to Gatal's threatening behavior and weapon. Under Malaysian law, consent obtained through fear or threat constitutes rape.

1. Question : January 2012
Gatal went to seksi’s apartment pretending to be an officer from the local
council. Once inside the apartment, Gatal took out a Rambo knife and
instructed Seksi to remove her clothing while saying in a menacing tone:
“you know what I want.”
Seksi begged him to leave but she was too frightened to offer any physical
resistance. Seksi surrendered herself and they had sexual intercourse.
Discuss Gatal’s criminal liability.

2. Whether Gatal can be made liable for offence of rape
when he had sexual intercourse with Seksi.
Issue

3. 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;
Section 375 of Penal Code

4. The explanation in section 375 states that penetration is
sufficient to constitute the sexual intercourse necessary to the
offence of rape. In rape, the penetration must be by the penis
of the man.
In the case of Nasrul Anuar Bin Abd Samad v pp, 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.

5. Section 375 states that it is rape to have sexual
intercourse with a woman:
Against her will .
Without her consent.

6. Section 375(a) states It is rape to have sexual
intercourse by overcoming of active resistance on the
woman’s part. This overcoming resistance was evident
in the case of :-
PP V Nasar Bin Ahamad. Where the act of sexual
intercourse was effected despite struggles., protests
and crying on the victim’s part.
Against her will

7.  In PP V Ku Han Chua, there was evidence that the
complainant struggled to free herself from the hold of the
two accused. He 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.

8.  Section 375(b) relates to sexual intercourse without the
consent of woman. Consent is an act of reason,
accompanied by deliberation, the mind weighing as in
balance, the good and the evil on each side.
 Consent means an active will in the mind of the person to
prevent the doing of the act complained of, and knowledge
of what is to be done or the nature of the act that is being
done is essential to consent to the act. Consent is voluntary
accordance with, or concurrence in, what is done or
proposed by another.
Without her consent

9.  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’.

10.  In the case of Rao Harnarain Sing v State the accused was a
wealthy employer of the deceased’s husband. He urged the
husband who work as a servant, to bring his wife to the
accused party where the accused and his friend forced the
deceased woman into having sexual intercourse. She cried
all night and died in the morning.
 Court held that : Every consent involves a submission. But, it
is no means follow that a mere submission involves consent.
The emphasis should be on the state of mind of the victim
immediately before the act of sexual intercourse. The
consent should be obtained prior to the act. It is no defense
that the woman consented after the act.

11.  In PP V Mohamed Bin Majed, 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.

12.  In the case of Liew Kim Yong v PP, 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.

13.  While in the other hand, section 375(c) provides for
the offence of rape where there is consent except
that the consent is vitiated by the manner in which
the consent had been obtained. This is obtained
under fear or misconception of fact under.

14. • Under this section, the consent to the sexual intercourse is
obtained under fear of death or hurt to complainant herself or
any other person obtained under misconception of fact. Where
the consent had been so obtained, the sexual intercourse is an
offence of rape.

15.  In Chiu Nang Hong v PP, the victim stated that she was
driven to a house. Thea appellant said her husband was
there invited her to enter. When she did so he pushed her
into a room and secured the door. He told her not to
shouted and putting his and over the neck said if he shouted
she would strangle her. She was shocked and because of his
size she did not dare to put up a fight. He was so frightened
that she just stood still in the middle of the room. The
appellant then took of her clothes, carried her to the bed
and had sexual intercourse with her.
 Held : There was no question as to whether sexual
intercourse had taken place because sexual intercourse was
admitted. There was no question of want of consent
because there was consent. The question was as to how the
consent was obtained.

16.  In the case of PP V Aling Bin Ayun, 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 who then threatened her with it.
She was frightened and tried to struggle free but could not.
She was pregnant 4 months. After her trousers dropped,
she was dragged to a spot some 6 feet away, pushed down
and sexual intercourse followed.
 Held: I have no doubt that she as 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.

17.  There was in PP V Emran b Nasir 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 to do
although she objected to what he was doing and did not
agree to it.
 In PP V Teo Eng Chan, court found that the accused had
intercourse with the complainant, that it was without her
consent, it was obtained by putting her in fear of hurt by
threat to beat her up.

18.  By applying the section 375 of Penal Code and cases given into
this situation , this can be said that Gatal had rape Seksi. He could
be accused for an offence of rape when he had pretending to be
an officer and entering Seksi’s apartment then force Seksi to
removed her clothing. In this situation Seksi may not struggles,
shouting or crying for help to show her act of protest and
unwilling to be rape but this can be reasonably seen because she
was too frightened to offer any physical resistance as she had
reasonably believe that Gatal can hurt her anytime by using the
Rambo knife that he hold with him to threatened her. Under
section 375(c) where the consent had been so obtained under
fear of death or hurt to complainant herself or any other person
the sexual intercourse is an offence of rape. Like in the case of PP
V Teo Eng Chan, court held the consent was obtained by putting
her in fear of hurt by threat to beat her up and the sexual
intercourse is rape.
Application