Rape and Unnatural Offences

by Dr. Aspalella A. Rahman

Introduction  Rape  Sexual Connection by Object  Incest  Unnatural Offences 

Offences that involve unlawful sexual gratification are as follows: i. Rape ii. Sexual connection by object iii. Incest iv. Unnatural offences 

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Forcible sexual intercourse int ercourse - Against her will -without her consent Invalid consent - fear of misconception of fact - legally married/ someone she wd consent - not understand nature and consequence - abuse position of authority/ trust Statutory rape

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A man commits the offence of rape when he has sexual intercourse with a woman under circumstances prescribed in s 375 PC. see s375 PC

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s376(1)-general punishment for rape. i.e. imprisonment for max 20 yrs and whipping. ss376(2),(3) and (4)-enhanced punishment under certain circumstances.

Imprisonment Imprisonment not less than 5 yrs and not more than 30 yrs AND whipping if: (a) At the time of, or immediately before of  after the commission of the offence, causes hurt to her or any other person; (b) At the time of, or immediately before or after the commission of the offence, puts her in fear of death or hurt to herself or any other person;

(c) The offence was committed in the company of  or in the presence of any other person; (d) Without her consent, when she is under 16 yrs old; (e) With or without her consent, when she is under twelve years of age; (f)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; or (g) At the time of the offence the woman was pregnant.

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‘whoever commits rape on a woman whose relationship to him is such that he is not permitted under the law, religion, custom or usage, to marry her’. Punish between 8 to 30 yrs AND whipping not less than 10 strokes.

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‘whoever ‘whoever whilst committing or attempting to commit rape causes the death of the woman or whom the rape is committed or attempted.’ Punish with death or imprisonment for 15 to 30 yrs AND whipping not less than 10 strokes.

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It is not rape for a man to have sexual intercourse even in the circumstances provided under s375, with a woman who is his wife by a marriage which is valid for the time being in force, or is recognized in the Federation as valid.

However, a woman shall be deemed not to be a man’s wife if; i. She is living separately from her husband under a decree of judicial separation or a decree nisi not made absolute; or ii. She has obtained an injunction restraining her husband from having sexual intercourse with her; or iii. She is a Muslim living separately from her husband during the period of ‘iddah ‘iddah’’ which shall be calculated in accordance with Hukum Syara’. Syara’. 

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the husband, during the subsistence of a valid marriage, causes hurt or fear of death or hurt to his wife or any other person in order to have sexual intercourse with his wife. Punish with max 5 yrs imprisonment.

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Generally means a violent offence. Concise Oxford Dictionary- rape means the act of taking anything by force; violent seizure (of goods), robbery. The act of  carrying away a person (especially woman) by force.

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Insertion of a man’s erect penis into a woman’s vagina, usually followed by the ejaculation of  semen. Explanation to s375- penetration is sufficient to constitute the sexual intercourse to the offence of rape. Rape is not a continuing offence but a single act of sexual intercourse. Malaysian cases show that any act of  penetration is sufficient and it is not necessary to prove anything beyond that, e.g. ejaculation/ presence of semen.

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Nasrul Annuar bin Abd Samad v PP [2005] 1 MLJ 619 The victim at the time of the alleged rape, did not see anything that happened to her from the stomach downwards. Held: appeal allowed on the grounds, inter  alia, that to show that there was no clear evidence it was the accused’s penis that had penetrated into the victim’s private part.

s375 PC- it is rape to have sexual intercourse with a woman; i. Against her will; or ii. Without her consent. 

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PP v Nasar bin Ahmad The act of sexual intercourse was effected despite struggles, protests and crying on the victim’s part. Held: This was sufficient evidence of  penetration against her will. See PP v Ku Hang Chua [1975] 2 MLJ 99

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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.

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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.

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Liew Kim Yong v PP [1989] 3MLJ 323 PP v Mohd Ridzuan bin Md Borhan [2004] 5 MLJ 300

It is rape if the consent is obtained; Under fear or misconception of fact under i. s375(c); ii. Under the woman’s belief that she is legally married to or is someone to whom she would give consent to under s375(d); iii. Without the woman understanding the nature and consequences to which she has given consent under s375(e); or iv. Induced through the offender’s position of  authority or trust under s375(f). 

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s375(c)- it is rape if the consent to the sexual intercourse is obtained under fear of death or hurt to the victim or any other person, or obtained under a misconception of fact. Refer to the cases: Chiu Nang Hong v PP [1963] MLJ 119 PP v Aling bin Ayun [1970] 2MLJ 160 PP v Emran bin Nasir [1987] 1MLJ 166 PP v Eng Chan & Ors [1988] 1MLJ 156 PP v Abdul Rahman Mohamad [2005]1CLJ 700

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s375(d) –it is rape if the woman consents because of her belief that the accused is someone to whom she is married or would consent to have sexual intercourse. PP v Papadimitroupoulos Held: There was no marriage ceremony. The consent to the sexual intercourse was invalid as it was given bcoz the girl believed herself  to be lawfully married to the accused. See R v Elbekay [1995] Cr LR 163

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s375(e)- it is rape if the victim does not understand the nature and consequence of  what she had given her consent to. R v Flattery Held: The accused was convicted as there was 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.

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s375(f)- it is rape if the sexual intercourse 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 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.

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It is rape to have sexual intercourse with a woman under 16 yrs of age, with or without her consent. See Mohd Salleh bin Nik Mohd Yusof v PP [2005] 3 AMR 107

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It is an offence to have sexual connection with another person by the introduction of any object into the vagina or anus of the other person without the other person’s consent. Punishment- max 20 yrs imprisonment and whipping. Webster dictionary-object means anything visible and tangible, a material product or substance. It only constitute an offence where committed without the other party’s consent.

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A person is said to commit incest if he or she has sexual intercourse with another person whose relationship to him or her is such that he or she is prohibited, under the law, religion, custom or usage applicable to him or her, to marry that other person. The Shorter Oxford English Dictionary- incest means an impure and unchaste act. It is a course of sexual intercourse or cohabitation between persons, related in such degree within which marriage is prohibited by law. s376B- punish with imprisonment between 6 to 20 yrs and whipping.

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Held: Criminal statute prohibiting incestuous relationship reflect the belief that incest is a wrong against the public largely because of  its potential to destabilize the family. See Lekon @ Delem ak Gerik (M) v PP [2007] 3 MLJ 730

Sexual offences offences of an unnatural nature under PC: i. Voluntary having carnal intercourse with an animal under s377. ii. Voluntary having sexual connection with another person by the introduction of the penis into the anus or mouth of the other person, which is said to be committing carnal intercourse against the order of  nature under s377A. 

iii. In public or private, committing committing or abetting the commission of, or procures or attempts to procure the commission by any person of  any act of gross indecency with any person under s377D. iv. Inciting a child under the age of 14 years to any act of gross indecency with him or any other person under s377E.

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s377- the offence of buggery with an animal. Webster dictionary - Buggery means sodomy. Sodomy means sexual intercourse regarded as abnormal between a person and an animal. Penetration is sufficient to constitute the carnal intercourse necessary to the offence. Punishment-imprisonment max 20 yrs and fine or whipping.

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i.e. having sexual intercourse with another person by the introduction of the penis into the anus or mouth of the other person. Penetration is sufficient to constitute the sexual connection necessary to the offence. s377B- punishment of max 20 yrs imprisonment and whipping.

TWO offences; i. s377D- when in public or private, committing committing or abetting the commission of, or procures or attempts to procure the commission of any act of gross indecency with any person.  Punish with max 2 yrs imprisonment. imprisonment. ii. s377E - inciting a child under the age of 14 years to any act of gross indecency with him or any other person.  Punish with max 5 yrs imprisonment and whipping. 

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The Concise Oxford Dictionary- ‘gross indecency’ means offending against recognized standards of decency. Webster Dictionary- ‘incite’ means to arose, set in motion, hasten, to move to action by persuasion, to stir up, spur on.