INTRODUCTION TO CRIMINAL LAW:

RAPE

Faculty of Business Management and Professional Studies

(FBMP)
INTRODUCTION

Sexual intercourse with a woman against her will

and without her consent.

Crime of expression of violence, anger, and

power meant to humiliate the victim.

A heinous crime and it violates the most basic

right of a person.
RAPE

Sec. • Circumstances of
375 rape.

Sec. • Punishments of
376 rape.
CIRCUMSTANCES OF RAPE
Sec. 375

• (a) against her will;

• (b) without her consent;
• (c) with her consent but the consent was obtained by putting threat
of injury or misconception of fact;
• (d) with her consent but her consent is given because she believes
that he is a man to whom she is, or believes herself to be, lawfully
married or to whom she would give consent;
• (e) with her consent but at the time of giving such consent, she is
unable to understand the nature and consequences of her consent
given;
• (f) with her consent, but that consent is obtained by using his
position of authority over her or because of a professional
relationship or other relationship of trust in relation to her;
• (g) with or without her consent, when she is under 16 years of age.
EXCEPTIONS
Exc. to Sec. 375
• Sexual intercourse by a man with his own wife in a marriage
which is valid.

Unless
• Explanation 1 – A woman, living separately under decree of
judicial separation; or obtained injunction restraining the
husband from having sexual intercourse.
• Explanation 2 – A woman living separately during iddah.
• Sec. 375A – Husband causing hurt in order to have sexual
intercourse.
SUBMISSION AND CONSENT
A yielding to
the will of Involves a positive
others. Submission action of the mind
Consent
in agreement.

Every consent involves a submission, but the converse is not

necessarily true.
Fear of injury, or misconception
of fact.

No Infirmity of mind, or intoxication.

Sec. 90
consent Under 12 years.
 Poonai Fattemah
• Snake charmers, induced the person
to allow themselves to be bitten by a
snake, inducing them to believe that
they had power to heal.
• Held: The consent was vitiated by
the misconception. The consent was
given in consequence of
misconception that they had such
power
R v Flattery
• A girl went to see the accused for
medical advise to cure her fits.
Having examined, the accused told
her it was nature’s string wanted
breaking. The accused then started
the ritual and had sexual connection
with her, believing that he was
treating her medically, and
performing surgical operation.
• Held: She submitted to the
treatment because she believed that
he was treating her. Convicted of
rape because false representation.
No consent.
PUNISHMENTS – SECTIONS 375B &
376
375B
• Imprisonment not less than 10 years.
Gang rape

376(1) • Imprisonment up to 20 years and whipping.

376(2)
• Imprisonment not less than 5 years and whipping.
11 circumstances
376(3) • Imprisonment not less than 8 years and whipping
Not permitted by law not less than 10 strokes.

376(4) • Imprisonment not less than 15 years and

Causing death whipping not less than 10 strokes.
PP V MOHD RIDZWAN BIN MD
BORHAN
• Under S.375 of the Penal Code which provides for the offence of rape, a man is said
to commit rape if he has sexual intercourse with a woman, e.g. without her
consent.
• To establish a prima facie case of rape, the burden is on the prosecution to prove
the following ingredients:
• (1) sexual intercourse;
• (2) penetration; and
• (3) without her consent.”
 CHEONG YOU HOI V PP
• Explanation to sec. 375 – penetration is sufficient to constitute sexual intercourse
to the offence of rape.
• Held = To constitute the offence of rape, any act of penetration is sufficient and it is
not necessary to prove anything beyond that, e.g. ejaculation or present of semen.
• SIDEK BIN LUDAN v PP
• Held = “… It’s now established that to constitute the offence of rape, there must be
penetration (R v. Hill), I may add that even the slightest penetration, like in the
instant appeal, will be sufficient..”
• NASRUL ANUAR BIN ABDUL SAMAD v PP
• Held = “… The learned Sessions Court Judge correctly identified the elements must
be proved by the prosecution in offences of rape, that is to say, there must be proof
of penetration and identity of the accused..”
• R v RUSSEN, R v HUGHES, R v JORDON
• Held = “… a slight penetration is sufficient, and it is not important to prove that the
hymen of a woman is ruptured as a result of penetration..”
• R v MAYBERRY
• Held = sexual intercourse is presumed to happen and continues as long as there is
penetration.
PP V NASAR

• Sec. 375(a) – It is a rape to have sexual

intercourse by overcoming of active
resistance on the woman’s part.

• Held: The act of sexual intercourse was

effected despite struggles, protests and
crying on the victim’s part. This was
sufficient evidence of penetration
without her will.
PP V MOHD RIDZUAN

• Pillion rider, both accused and the

woman went o Seremban shopping
complex and then to an oil palm (8.40
pm-1.00 am) – the woman stayed, not
tried to escape.

• Held: Sexual intercourse with consent,

not rape – s.375(b).
PP V ABDUL RAHMAN
• The accused had sexual intercourse with
the complainant several times over a
period of 3 months on the pretext of
spiritual medical treatment to cure
complainant’s persistent ailment. She did
submitted to the sexual intercourse
believing that she is treated by prominent
spiritual healer and that insanity or death
would befall her if she had resisted.

• Held: The consent given was based on

misconception of fact and thus the sexual
intercourse was an offence of rape. –
s.375(c).
 R V FLATTERY
• A girl aged 19 went with her mother to
search for medical advise to cure her
epilepsy. They met the accused and he
convinced them that he could cure
and that it was ‘natures string should
be broken’. The accused carried the girl
to a room and had sexual intercourse.
When he was charged, he raised the
defence of consent by the girl.

• Held: Consent was given under

misconception of fact. She consented
to the medical treatment, but the
accused did entirely a different thing.
R V ELBEKAY

• Victim, accused and victim’s boyfriend

returned drunk. The accused went to
victim’s room and had sex, the victim
consented assumed his boyfriend but
then pushed the accused when realized
that he was not his boyfriend.

• Held: The accused was convicted for

rape under s.375(d).
PP V ABDUL RAHMAN

• Held: Sec. 375(e) – victim do not

understand the nature and
consequences of her consent, believes
and been misled that sexual
intercourse was necessary to cure her
disease.
AGUSTINE FOONG V PP
• The accused was master of the maid.
He had a sex with the victim and the
victim consented because she feared
that she would be deprived off her
financially if she resisted.

• Held: The accused was convicted for

rape under s.375(f) of PC where the
said sexual intercourse is effected with
the victim’s consent obtained by the
accused abusing a position of authority
or trust as an employer.
 FAIRUZ V PP

• Held: If the victim is under 16 years,

her consent is immaterial even if she
consents. The accused was convicted
under s.375(g) of PC.
 MOHIUDDIN V EMPEROR
• Held: The belief of the accused person
that the girl is above 14 years of age
(whereby the accused was under such
belief because the girl had written
many love letters to the accused and
expressed her desire to have
intercourse with him), cannot be taken
into consideration, and the accused
must be convicted with rape.
• *Indian Penal Code <14
 SUMMARY

• Rape is one of grievous crimes that comes with heavy punishments.

• There are different situations that may constitute as an offence of rape.

• Different punishments will be reflected for different situations of rape.