RAPE

S375

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 Rape

S. 375
General S. 376
provisions punishments

S 376(1) – non S 376 (2) –

Ingredients
aggravated cases aggravated
cases

Exceptions –
Rapist Victim
Sexual i/course sexual i/course
man Woman
done in any of by a man with
the 7 c/stances his own wife x
mentioned rape
Explanation -1

Think ??? -Husband

causes hurt/fear of hurt
or death to wife - to
have sexual i/course 2
 Rape -
meaning

Originated from
latin word ‘rapio’
Oxford Concise
– to seize or to
Dictionary – the act of
forcefully ravish a
taking anything by force,
woman w/out her
violent, seizure of goods,
consent
robbery. The act of
carrying away a person
especially woman by
force

Generally -
a violent
offence
Literally – to force
a woman to have
sexual intercourse
with the accused
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 Sexual
intercourse Nasrul Anuar
bin Abdul
Insertion of a Samad
man’s erect penis
into a woman’s
vagina, usually
followed by the  Explanation 375 --penetration
ejaculation of sufficient to constitute rape.
semen.  Rape x 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 x
ejaculation of semen

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 (g) (a)
With or V her will
without
consent (b)
when she w/out her
under 16 consent
Sta
yrs. tu tor
y rap
e Rape-
(f) sexual
With consent but i/couse
obtained using Invalid with a
position of woman Inv
al id (c )
authority-
With consent
profession, r/ship of lid

Invalid
va but was
trust/ relation to her in
obtained under
fear of
(e) death/hurt/
(d)
With consent misconception
but unable 2 With consent but
u/stand nature the man knows he
& is x her
consequences husband /whom 5
she would consent
 (a)
V 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, shouted for help few times-

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 (b)
Without
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.
 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.
 Consent must be differentiated from submission

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 Cases

 Liew Kim Yong V PP [1989] 3

 PP v Mohamed bin Majid MLJ 323
[1977] 1 MLJ 121  Complainant & accused known
 The victim decided to submit each other about a year/ been
rather then struggle as she out few occasions. Though x
was afraid that the accused injures found on the
might strangle her. complainant.
 Held: On the evidence of
 Held : sexual i/course w/out
bruises on her arms, the blood
and seminal stains on her her consent bcoz she was
panties, the recent tear of her frightened, confused and upset
hymen, the promptness in at what was done to her
resorting to the police and the
manner in which she was PP V Mohd Ridzuan Md Borhan
attacked, the court found that [ 2004] 5 MLJ 300
as a fact sexual intercourse  Held : on the facts and circumstances
did take place without her , the sexual i/course was more
consent. consistent with the existence of
consent.
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 ( c)
fear or misconception of fact

Fear of death or hurt to  Misconception of fact

complainant herself or - X defined but use synonymously
any other person with mistake or error of judgment
- A misconception of fact may arise
from a fraudulent or innocent
 PP v Aling bin Ayun[ 1970] misrepresentation - R v Williams
2 MLJ 160
- The submission to the sexual
intercourse b’coz the accused
had held a chopper PP v Abdul Rahman Mohamad
 PP v Teo Eng Chan & Ors [2005]1 CLJ 700
[1988] 1 MLJ 156 -a 20 year old girl raped by the
- The i/couse w/out her complainant several times over the
consent or if with her consent period of 3 months on the pretext
it was obtained by putting her of spiritual medical treatment to
in fear of hurt by threats to cure complainant’s persistent
beat her up. ailments
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 However x every
misconception will
vitiate consent

Nature Identity of
of the
the person
act
2 kinds

Clarence [ 1988]
22 BD 23

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 (d)
Legally married or someone she
would consent
 PP v Papadimitroupoulos
 Accused greek immigrant settled  R v Elbekay [1995] Cr LR
in Australia n spoke fluent 163
English.  Victim lived with her
 Meet newly arrived greek boyfriend
immigrant girl n understood very  One night her boyfriend and
little English. a friend went out n returned
 Took her & 3 other relatives to home drunk.
registrar’s office asked the girl to  Boyfriend slept in the living
sign claimed that it was a notice room n victim in the bedroom
of intent to marry n after that  The friend climbed into the
ceremony they already married. bed n half –asleep, victim
Girl believed him n had sexual assumed it was her boyfriend
i/course. Later he was charged  Only when the friend
with rape penetrated her she realised it
 Held: There was no marriage was not her boyfriend n
ceremony. The consent to the pushed him away
sexual i/course was invalid as it  COA upheld the conviction of
was given bcoz the girl believed rape.
herself to be lawfully married to 11
the accused
 (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 x understand but did x
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 n 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.
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 (f)
Abuse position of
authority or trust

 Augustine Foong Boo Jang v

PP [1990] 1 MLJ 225
 The accused master of the maid-
 Introduced by the Penal
established a position of
Code (Amendment) Act dominance over the complainant
2006 - as she dependent on him
 Covers situation where
financially.
sexual i/course is effected  The victim was afraid of doing
with the victim’s consent anything which might prejudice
obtained by the offender her position and her employment.
abusing a position of  Held: It was not too difficult to
authority or trust see why she did not resist
perhaps as strenuously as had
been suggested she should have
done.
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 (g)
Statutory
rape

 It is rape to have
Mohd Salleh bin Nik Mohd Yusof
sexual i/course with a
v PP [2005] 3 AMR 107
woman under 16 years - Sexual i/course with them was
of age
rape even with their consent.
 Her consents is
Absence of consent is irrelevant
immaterial
for proving the offence-
 Prosecution must
adduce positive proof
of victim’s age.

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 PUNISHMENTS

S 376(1)
S 376 (2)
non aggravated
aggravated cases
cases

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 Think??????

Mens Rea  Gender

Actus Reus Intention???? reassignment
Knowledge????? surgery –rape or x
Sexual Voluntarily??? rape?????
intercourse with Dishonestly ????
the victim  Can a woman rape
S 79 & 80 of PC man??????
Introduced mens rea via
back door  Can a husband
rape a wife?????
Rape and Abdullah v R (1954) 20
transmit MLJ 195
HIV???

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