LAW555-CRIMINAL LAW II

ASSIGNMENT 3

GROUP: LWB04B

PREPARED BY:

NUR AUNI BINTI CHE KODIR - 2020470862

NURUL HIDAYAH BINTI HAMZAH - 2020471264
NUR AMANI BINTI MOHD KUSHAIRY - 2020470762

PREPARED FOR:

SIR ASHRAN BIN HAJI IDRIS

 The issue that has arisen here is whether Dogol could be liable for rape under Section
375(c) and (f) of the Penal Code against Rozie.

Generally, rape is known as the unlawful sexual activity involving sexual intercourse. In
PP v Muhammad Arfah Jasmi (2008) 7 CLJ 836 it is interpreted as the act of taking anything
by force. Nevertheless, Section 375 of the Penal Code which puts the law in place define the
offence of rape as when a man has a sexual intercourse with a woman against her will or within
certain circumstances which the statute spelled out.
Evidently, the essence of this offence is the presence of non consensual sexual
intercourse. In this regards, explanation to the aforementioned provision provides that
penetration is sufficient to constitute the sexual intercourse necessary in constituting rape. The
court in Razi bin Amnin v PP (2010) 7 MLJ 756 said that in rape, the most vital ingredients are
the identity of the offender and the sexual act itself, that is the fact of penetration however slight.
Therefore it is sufficient for the prosecution to prove that penetration, and not anything beyond;
such as ejaculation or otherwise, has occured to prove the acts required here.
Be that as it may, an act of sexual intercourse will only amounts to rape if it is done
without the consent from the woman, or when it falls within any one of the circumstances laid
down in Paragraph (a) to (g) of Section 375 of the Penal Code. That said, Section 375(c) of
the Penal Code in particular provides for the offence of rape that is vitiated by the manner in
which the consent is obtained under fear or misconception of fact. Section 375(c) of the Penal
Code mentioned that where the consent to the sexual intercourse is obtained under fear of death
or hurt is obtained under misconception of fact, the offence of rape is constituted.
In PP v Abdul Rahman Mohamad [2005] 1 CLJ 700, the accused was alleged to have
raped the accused was alleged to have raped the complainant several times over a period of three
months on the pretext of spiritual-medical treatment to cure the complainant persistent ailments.
The treatments from the respondent were usually preceded by recitation of Quranic verses,
incantations in the name of Allah or prayers followed by sexual intercourse, vice versa or both. It
was impressed upon the complainant that such was the will of Allah wherein she must submit,
failing which she would become insane, meet an accident or die. The court found ample
evidence to support the prosecution's case that the complainant submitted to the
respondent's will under the misconception of fact that she was being treated or undergoing
medical treatment by a prominent bomoh and that death, insanity or disaster would befall
on her if she disobeyed or refused. This is not a one off incident of rape but a series of sexual
assaults on her covering a period of more than two months during which she was made to say
prayers, recite incantations and to observe and suffer elaborate procedures and strange
occurrences which made her believe the respondent's claim that what was done to her was by the
will and revelation of Allah.
The court of Appeal held that the trial judge was totally right in finding that the
complainant gave her consent under the misconception that she was being medically treated by
the respondent for her ailment. She did not appreciate nor could she anticipate the respondent's
actions in at least the few subsequent incidents as such she could not be said to have consciously
permitted the sexual assaults on her before they happened. And she was living under the
misconception of fact that she was receiving medical treatment from the respondent as bomoh
throughout a large part if not the whole period of her stay with him. While consent must
necessarily imply submission it does not follow that submission must mean consent because
submission can also result from fear, force, threat, inducement or deception. The complainant's
submission to the respondent's bomoh treatment in this case was undoubtedly caused by his
inducement and deception. Therefore the Court of Appeal agreed with the learned deputy that the
appellate High Court Judge had misdirected himself in law and in fact on the issue of consent of
the complainant. Therefore the Court of Appeal allowed the appeal, set aside the order of
discharge and acquittal by the High Court and restored the conviction and sentence imposed by
the Sessions Court.
Furthermore, in R v Williams [1923] 1 KB 340, the accused was a singing coach who
convinced a 16-year-old student, the victim, to let him do something to improve her singing
voice. But, he was in fact having sexual intercourse with her. Consequently, the appellant was
charged with rape. The Court held that the appellant had obtained the consent fraudulently.
However, it must be noted that not every misconception of fact will vitiate consent. In Clarence
(1886-90) All ER Rep 133 the accused man had sexual intercourse with the woman at a time
when to his knowledge he was suffering from gonorrhea. The woman was ignorant of that fact,
and, if she had known it she would not have consented to the intercourse, the result of which was
that she contracted the disease. The court held that the woman's consent here was as full and
conscious as consent could be. It was not obtained by any fraud, either as to the nature of the act
or as to the identity of the agent.
Other than that, looking into Section 375(f), it provides that a man is said to commit
“rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman with
her consent, when the consent is obtained by using his position of authority over her or because
of professional relationship or other relationship of trust in relation to her.
In Augustine Foong Boo Jang v PP (1990) 1 MLJ 225, the accused had established a
position of dominance over the complainant as he was the master of a maid. The real significant
element in this case which the judge himself emphasized was the relationship between the
applicant and this maid, and the position of dominance he had established over her. From the
judgment, quoted ‘she was completely dependent on him financially. He controlled her entire
existence.’ Adding on, her fear, and her inability to give her name on the telephone later on that
afternoon, out of fear, demonstrated the hold that the accused had on her. She was afraid of doing
anything which might prejudice her position and her employment. It is not very difficult to see
why she did not resist perhaps as strenuously as has been suggested she should have done. But it
is perfectly apparent from her own story that she did put up as much resistance as she could.

Applying the above mentioned laws to the issue at hand, we must first determine whether
there is sexual intercourse between Rozie and Dogol. The facts mentioned that Dogol had
suggested for Rozie to render sexual service to him before and after the surgery, after which
Rozie did fulfilled. It was later stated that Rozie was infected with syphilis, a sexually
transmitted disease from the sexual intercourse. Evidently, from the wordings of these
statements, intercourse of the sexual kind had indeed taken place between the two. We could also
infer that penetration which would amount to sexual intercourse has happened as transmission of
syphilis commonly only happen through genital sexual intercourse. This renders the assumption
that there is introduction of the penis to vagina, or otherwise referred to as penetration. Thus,
pursuant to Razi bin Amnin v PP (2010) 7 MLJ 756 the element of sexual intercourse is duly
proven.
Next, we can see that Dogol had openly informed Rozie that she could render sexual
services to him before and after the surgery as a means of repayment of the total cost for the
plastic surgery after Rozie voiced out her financial constraint. Additionally, Dogol also reassured
Rozie that he could evaluate the success of the surgery from the sexual intercourse. From these
facts, following PP v Abdul Rahman Mohamad it could be said that that Rozie had submitted
herself to Dogol under the misconception of fact that the sexual intercourse between them is a
procedure conducted to evaluate the success of the surgery particularly in regards of
vaginoplasty. However, it must be noted that by then it was already apparent in Rozie’s mind that
what she will be having with Dogol is a sexual intercourse. This is because before Dogol had
conveyed such misconception, he clearly suggested for “sexual services” to be rendered as a
mode of repayment for the plastic surgery due to Rozie’s financial difficulties. Hence, in contrast
with R v Williams, this shows that Rozie had not consented completely under the misconception
of fact as she had knowledge that she is contracting sexual intercourse to repay Dogol, from the
get go. Thus, notwithstanding the reassurance of the success of the surgery mentioned to her, it
can be inferred that the consent given is not vitiated hence making it valid.
Moving on to the sexually transmitted disease that is Syphilis which Rozie contracted
from the sexual intercourse she had with Dogol. The only thing that the law inquires about is the
presence of consent, rendering any other extraneous details immaterial. This means that it
doesn’t matter that Rozie would have not consented to the act if she had the knowledge that
Dogol was suffering from syphilis. By referring to Clarence, Rozie’s ignorance of the fact or
any contention to the idea that if she had know that she will not consent to that sexual intercourse
due to fear of contracting syphilis is irrelevant, as it can be seen that the consent given to Dogol
was as full and conscious as consent could be.
In applying Section 375(f) to the present case, it can be implied that Dogol, an experienced
plastic surgeon, could have a professional relationship and holds a higher position of dominance
over Rozie, a client who seeks plastic surgery in order to regain her stardom but faces a financial
constraint in order to pay for the surgery. Nevertheless, differing from Augustine Foong Boo
Jang v PP, Rozie is only a client to Dogol, she was not in any way force to have sexual
intercourse in Dogol as from the facts of the case, Dogol had given her an option whether to pay
by cash or kind in which he only informed her that she could render sexual services to him
before and after the surgery as means of repayment. Hence, Dogol may not have establish
position of dominance over Rozie as she had a choice either to not proceed with the plastic
surgery or proceed and provide sexual services to Dogol. It could not be said that Rozie’s entire
existence depended on Dogol, for the fact that Rozie did agreed to have sexual intercourse with
Dogol in fear of losing her stardom because Rozie could have opted other ways or other plastic
surgeons to have the surgery in order to rise her stardom. Therefore, Dogol may not be liable
under Section 375(f) of the Penal Code as the Rozie’s consent obtained by Dogol was not
effected by Dogol’s position over Rozie and was a valid consent.

To conclude, Dogol has not committed the offence of rape under Section 375(c) and (f) of the
Penal Code against Rozie as her consent to the sexual intercourse is valid and not vitiated in any
way.