1. RAPE
S375
1

2. Rape
S. 375
General
provisions
Ingredients
Rapist
man
2
Victim
Woman
S. 376
punishments
S 376(1) – non
aggravated cases
Sexual i/course
done in any of
the 7 c/stances
mentioned
S 376 (2) –
aggravated
cases
Exceptions –
sexual i/course
by a man with
his own wife x
rape
Explanation -1
Think ??? -Husband
causes hurt/fear of hurt
or death to wife - to
have sexual i/course

3. Rape
-meaning
Originated from
latin word ‘rapio’
– to seize or to
forcefully ravish a
woman w/out her
consent
Oxford Concise
Dictionary – the act of
taking anything by force,
violent, seizure of goods,
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
3

4. Sexual
intercourse
Insertion of a
man’s erect penis
into a woman’s
vagina, usually
followed by the
ejaculation of
semen.
Nasrul Anuar
bin Abdul
Samad
 Explanation 375 --penetration
sufficient to constitute rape.
 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
4

5. 5

6. (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 times6

7. (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
7

8. Cases



PP v Mohamed bin Majid
[1977] 1 MLJ 121
The victim decided to submit
rather then struggle as she
was afraid that the accused
might strangle her.
Held: On the evidence of
bruises on her arms, the
blood and seminal stains 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 that as a fact
sexual intercourse did take
place without her consent.
 Liew Kim Yong V PP [1989]
3 MLJ 323
 Complainant & accused known
each other about a year/ been
out few occasions. Though x
injures found on the
complainant.
 Held : sexual i/course w/out
her consent bcoz she was
frightened, confused and upset
at what was done to her
PP V Mohd Ridzuan Md Borhan
[ 2004] 5 MLJ 300
Held : on the facts and circumstances ,
the sexual i/course was more consistent
with the existence of consent.
8

9. ( c)
fear or misconception of fact
Fear of death or hurt to
complainant herself or
any other person
 PP v Aling bin Ayun[ 1970]
2 MLJ 160
- The submission to the sexual
intercourse b’coz the accused
had held a chopper
 PP v Teo Eng Chan & Ors
[1988] 1 MLJ 156
- The i/couse w/out her consent
or if with her consent it was
obtained by putting her in
fear of hurt by threats to beat
her up.
 Misconception of fact
- X defined but use synonymously
with mistake or error of judgment
- A misconception of fact may arise
from a fraudulent or innocent
misrepresentation - R v Williams
PP v Abdul Rahman Mohamad
[2005]1 CLJ 700
-a 20 year old girl raped by the
complainant several times over the
period of 3 months on the pretext
of spiritual medical treatment to
cure complainant’s persistent
ailments
9

10. However x every
misconception will
vitiate consent
Nature
of the
act
10
2 kinds
Clarence [ 1988]
22 BD 23
Identity of
the person

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

12. (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.
12
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.

13. (f)
Abuse position of
authority or trust
 Introduced by the Penal
Code (Amendment) Act
2006
 Covers situation where
sexual i/course is effected
with the victim’s consent
obtained by the offender
abusing a position of
authority or trust
 Augustine Foong Boo Jang v
PP [1990] 1 MLJ 225
 The accused master of the maidestablished a position of
dominance over the complainant
- as she dependent on him
financially.
 The victim was afraid of doing
anything which might prejudice
her position and her employment.
 Held: It was not too difficult to
see why she did not resist
perhaps as strenuously as had
been suggested she should have
done.
13

14. (g)
Statutory
rape
 It is rape to have
sexual i/course with a
woman under 16 years
of age
 Her
consents
is
immaterial
 Prosecution
must
adduce positive proof
of victim’s age.
Mohd Salleh bin Nik Mohd Yusof
v PP [2005] 3 AMR 107
-Sexual i/course with them was
rape even with their consent.
Absence of consent is irrelevant for
proving the offence-
14

15. PUNISHMENTS
S 376(1)
non aggravated
cases
S 376 (2)
aggravated cases
15

16. Think??????
Actus Reus
Sexual
intercourse with
the victim
Mens Rea
Intention????
Knowledge?????
Voluntarily???
Dishonestly ????
S 79 & 80 of PC
Introduced mens rea via
back door
Rape and
transmit
HIV???
 Gender
reassignment
surgery –rape or x
rape?????
 Can a woman rape
man??????
 Can a husband
rape a wife?????
Abdullah v R (1954) 20
MLJ 195
16