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Rape
Rape s.375 PC is the most complicated
offence where there was no express of
mens rea mention the provision.
Whether s.375 is strict liability offence. If it is
not a strict liability offence, then what is the
required mens rea?
Under s.375 PC the offence of rape can only
be committed by a man.
In Malaysia, the gender of a person can only
be determined through birth certificate.
If a person went for an operation to change
her sexual organs from female to male, i.e
she become he is cannot fall under s.375.
consent deals with private affairs between
one woman and one man. No witnesses
available and in a normal circumstances a
woman after she been rape by a man will
always wash away the evidence.
What is the different between Limb (a) and
Limb (b) of s.375?
Some of the limb is redundant and many
people have misconception on the force
element whether is it necessary to
constitute rape.
S.375 does not require the element of force
to constitute a rape offence.
Rape will happen even though the girl
Consent
Must come from the woman herself
Must be given prior to each sexual
intercourse or before the sexual
consented.
In most of the cases, the accused person will
not deny that he have sexual intercourse
with the the girl because she consented
and he taught that the girl is above the age
of 16.
Actus Reus a sexual intercourse by a man
with a woman under the circumstances
provided s.375 (a) to (g).
Explain: What is sexual intercourse?
Explanation to s.375 Penetration is
sufficient
to
constitute
the
sexual
intercourse necessary to the offence of
rape.
DPP must produce evidence or medical report
to prove there is penetration.
Must have penetration
Only man sexual organ can penetrate and
only woman sexual organs can be
penetrated by the man.
How to prove the offence of rape is actually
committed by the accused and not other
person?
Rape
struggle.
Medical evidence: she had changed her
clothes and had washed her private parts
since the time when she alleged that she
had been raped. She found no bruises on
the girl and no recent laceration of the
hymen. She found no spermatozoa and no
positive evidence of recent intercourse or
injury. The only significance of the fact that
the vagina admitted two fingers was that
intercourse could have taken place at some
time.
Held:
The victim cannot describe as how many
people raped her and how many people
penetrated her, her stories have varied.
The learned judge could not be sure of
the accuracy of her stories.
It would be unsafe to convict the
defendants on the charges. Accordingly,
they were found not guilty and
discharged.
The court further added that the accused
conduct was disgraceful and what they
have done though it does not amount to a
criminal
offence,
was
morally
inexcusable.
*** This case was held before the 2006
amendment where limb (f) was inserted
to s.375.
-
Rape
cycling home.
Held: The court was unhappy with the
evidence given by the doctor and cannot
explain as to the penetration.
Since
the
penetration
has
not
satisfactory proven and it was unsafe for
the accused to be liable and therefore the
conviction must be set aside.
Gopala (1895)
the prosecutrix.
She submitted to what was done, not with
any intention that he should have sexual
connection with her, but under the belief
that he was merely treating her medically
and performing a surgical operation, that
belief being wilfully and fraudulently
induced by the prisoner.
between
consent
and
submission.
Consent always imports submission;
submission does not necessarily
import consent.
The applicant had established a position
of dominance over the complainant as
she was completely dependent on him
financially. She was afraid of doing
anything which might prejudice her
position and her employment and
i.
ii.
-
s.40, MR is required.
S.6 provided that all offences shall be
subjected to general defences i.e.
chapter IV and S.40 stated that it can
be apply in Penal Code and others
law for the time being enforce.
What is the purpose of defences ?
The purpose of defences is to rebut
or negate the element of MR.
Here, MR is introduce via the back
door.
In the event where the defence of
mistake of fact is applicable as to the
age, for example, a girl was in a night
club and looks like an adult, and
found that she was not a virgin.
Taking into consideration of facts,
accused can rebut the MR, therefore
no MR and not guilty.
So far, via the back door approach is
the best approach and s.375 is not
strict liability offence.
However, Stanley Yeo was in the
opinion that in practice it is not easy
because MR i.e. intention is not easy
to prove.