RAPE Lecture (LAC3103 Criminal Law I) PDF

RAPE LAC3103 CRIMINAL LAW I LECTURE 1 WHAT CONSTITUTES RAPE?  The offence of rape is clearly stipulated under section 375 of the Penal Code.  Refer Penal Code Section 375  2 essential ingredients must be present namely:  1. Sexual intercourse by man wit...

RAPE LAC3103 CRIMINAL LAW I LECTURE 1 WHAT CONSTITUTES RAPE?  The offence of rape is clearly stipulated under section 375 of the Penal Code.  Refer Penal Code Section 375  2 essential ingredients must be present namely:  1. Sexual intercourse by man with a woman  2. The sexual intercourse falls under any of the circumstances laid down under section 375 (a) to (g) 2 PERPETRATOR VS VICTIM?  Must be by a man with a woman  Section 10 Penal Code – the word man denotes a male human being of any age, the word woman denotes a female human being of any age.  Perpetrator? Victim?  In Malaysia rape is an offence committed by a man against a woman by having sexual intercourse with her in either one of the 7 situations stated in section 375 of the Penal Code. 3 WILL THESE BE RAPE ?  A man forces another man to have sexual intercourse (homosexuality) with him – NOT RAPE, but such acts will render the man to be charged under s.377.  A woman forces a man to have sexual intercourse with her – NOT RAPE as far section 375 is concerned there are no provisions to regulate this type of behaviour.  A woman forces another woman to have sexual encounters (lesbianism) – NOT RAPE under section 375, interesting to note so far no cases of man filing police report that he has been raped by a woman, 4  In order to establish the offence of rape, one must prove that a man has sexual intercourse with a woman under one of the 7 situations mentioned in Section 375 of the Penal Code.  If it does not fall within any of the 7 situations, then it is not an offence of rape, but it may amount to some other offences in the Penal Code. 5 WHEN DOES SEXUAL INTERCOURSE OCCUR?  Section 375 has defined sexual intercourse to mean a penetration that is sufficient to constitute the sexual intercourse necessary to the offence of rape.  Sidek bin Ludan v PP (1995) 3MLJ 187 HC Abdul Malek Ishak J“ It is now established that to constitute the offence of rape, there must be penetration, I may add even the slightest penetration, will be sufficient. So long as penetration is proved but its depth will not injure the hymen, it is sufficient to constitute the crime of rape”. 6  R v Hughes – even if the hymen is intact in that there is no rupture, so long as there is penetration it is sufficient to constitute rape.  R V Mayberry (1973) Qd R 211, it was held that sexual intercourse is presumed to happen and continues to happen as long as there is penetration. 7 PENETRATION MUST BE SATISFACTORILY PROVEN  Nasrul Anuar BIN Abdul Samad v PP 92005) 1 MLJ 619 HC Augustine Paul J stated that the learned Sessions Court judge correctly identified the elements that 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.  In this case the victim did not see anything that happened to her from her stomach downwards. She agreed that it was only her presumption that the penis of the accused had penetrated into her private part. The victim testified “andaian tersebut kerana saya boleh rasa.” 8  She was not asked to explain what made her have that feeling. It could have been anything that had been made to penetrate into her private part. In any event a fact cannot be said to have been proved by a presumption. A finding must be based on proved facts or inferences drawn from proved facts.. 9  Ah Mee v PP (1967) 1 MLJ 220 The examining doctor in the charge of rape in answer to a question posed by the DPP said he assumed that the girl was unconscious as a reason to explain the absence of injuries to her private parts and again assumed that the copious bleeding was in his opinion as a result of penetration. 10  The court found that these assumptions had fell far short of being proved to the degree of satisfaction and were unwarranted for since it was not corroborated with other evidences such as intra vaginal swaps being carried out or any procedures which could have established intromission of semen which could have afforded a conclusive proof of intercourse. As such penetration was not satisfactorily proven. 11 HOW DEEP MUST A PENETRATION BE TO CONSTITUTE RAPE?  There are many instances whereby the accused argues that his penetration is so shallow that it is not rape.  Based on decided cases the courts have taken the approach that so long as there is penetration, it is rape when a man places his penis into the private part of the woman, although only slightly.  What is important is placing of the penis into the private part of the woman.  It is not necessary to determine how deep a penetration was. 12  AGAIN, IT MUST BE STRESSED THAT it is not required that the hymen of the woman is injured, provided there is penetration, however slight it may be.  There is no need for full penetration.  Even in the absence of traces of sperm, it still constitutes rape  Gorakh Daji Ghadje (1980) Cri LJ 1380 Bombay  Similarly in section 44 of the Sexual Offences Act 1956 (United Kingdom) –it is necessary to prove existence of sexual intercourse, seminal emission and the absence of spermatozoa is not necessary, but the sexual intercourse is complete when penetration occurs.” 13  R V Russen, (1777) 1 East PC 438, R v Hudges (1841), R v Jordon (1939) 173 er4 765 – a slight penetration is sufficient and it is not important to prove that the hymen of a woman is ruptured as a result of the penetration.  Regina v Joseph Lines(1944) – if it was proved that any part of the man’s penis is placed into the private part of a woman, although a very slight one, is enough to constitute penetration for the purpose of the definition of rape, and the man must be convicted for the offence. 14 S.375(A) AGAINST HER WILL  The distintinction between against her will and without her consent is not clear and is for the courts to decide.  However in Queen Empress V Gopal (1896) it was stated that every act done against the will of a person is an act done without her consent.. An act done without the consent of a person is not necessarily against his will…”  eg:  Sonia invited Ali to have sexual intercourse with her, but it was Ahmad who performed the act. Ahmad can be charged for rape because it was against the will of Sonia as the invitation to have sex was extended by Sonia to Ali only. 15  Asyikin requested Halim to use a condom prior to having sexual intercourse with her, but Halim did not. In this situation Halim can be charged with rape because it was against the will of Asyikin to have sex with Halim without using condom. 16 SECTION 375(B) WITHOUT HER CONSENT  Section 90 of the Penal Code – consent is not such consent as intended by this code if consent given by:  fear of injury,  misconception of fact and person doing the act knows or has reason to believe that consent given in consequence of such fear or misconception  person from unsoundness of mind or intoxication is unable to understand the nature and consequence of the consent  person under 12 years of age 17  Note content in Section 90 related closely to section 375(b)  Consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner.  Consent denotes an active will in the mid of a person to permit the doing of the act complained of. 18 WITH HER CONSENT BUT STILL REGARDED AS RAPE 375 (c) Consent obtained by putting her in fear of death or hurt to herself or any person, or obtained under a misconception of fact and the man knows or has reason to believe the consent is given in consequence of such misconception. 375(d) when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent. 19  375(e) when at the time giving such consent, she is unable to understand the nature and consequences of that to which she gives consent  375(f) when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship in relation to her.  375(g) with or without her consent, when she is under 16 years of age. 20 EXCEPTION- HUSBAND AND WIFE  Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognised in the federation as valid, is not rape.  thus, under the Penal Code if a husband forces his wife to have intercourse with him even if it is without her consent or against her will, his act will not amount to rape.  WHY? Laws do not take into account the domestic relation between husband and wife in completing their rights of contract and purpose of their marriage, as long as there is no excessive brutality or injury caused. 21  R v Clark (1949) 2 All ER 448 – A husband has obtained the right to have intercourse with the wife during the marriage ceremony, and not on every single occasion when he wanted to have intercourse he must obtains consent.  R V Miller (1954) 2 QB 282 – it was held that after a petition of divorce has been registered in court by a wife against her husband but before it is heard by the court, the husband had intercourse without her consent, in such situation the husband cannot be charged for rape. But after divorce, an ex-husband ceases to have any right to have intercourse with his ex-wife without her consent. 22  What if husband has intercourse with his wife who happens to be under 13years of age?  Look at the legality of the marriage and the raising of defence under section 89 of the Penal Code ie. Act done in good faith for the benefit of a child or person of unsound mind, or by consent of guardian, 23  Husband forces the wife to have intercourse with another man?  R v Cogan and Leak (1976) QB 217, it was held that in such circumstances the husband can be charged with abetting the offence of raping his wife by reason that the contract of marriage is only between the husband and the wife, the implied consent thus is just to have sexual intercourse under the contract of marriage with the husband and does not involve 3rd party and a wife is not bound to oblige her husband’s unreasonable demand. 24