rape

GROUP 3

PRESENTERS :

NUR ALIAH BT ROHAIZAN 2010332769
NURUL ATIQAH BT SAM KAMARUDDIN 2010957093
NURUS SAKINATUL FIKRIAH BT MOHD SHITH PUTERA 2010810698

• offence which involve UNLAWFUL SEXUAL
GRATIFICATION.

• offence directed against women.

• sexual penetration without the individual’s consent,
obtained by force or threat of physical harm, or when a
victim 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 .That's 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 woman's 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.

rape

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