Law 611(A) Criminal Law I

Question
3. Issue relating to rape case
Answer;
Rape is the act of physically forcing a woman to have sexual
intercourse, an act of sexual intercourse that is forced upon a woman
against her will. "Statutory rape" is a sexual intercourse with a girl under the
age of consent, which age varies in different states from ten to eighteen
years. Rape is not a crime against the person of a woman, it is a crime
against the entire society. It destroys the entire psychology of a woman and
pushes her into deep emotional crisis. It is only be her sheer will-power that
she rehabilitates herself in the society which, on coming to know of the rape,
looks down upon her in derision and contempt. Rape is, therefore, the most
hated crime. It is a crime against the basic human rights.
In a rape case the following two essentials are require, (1) sexual
intercourse by a man with a woman. (2) The sexual intercourse must be
under circumstances falling under this section. The sexual intercourse must
be with a woman. The term man is defined as a male human being of any
age. The term woman is defined as a female human being of age under this
section.
Under section 375 of Penal Code, a man is said to commit rape who
except in the case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the five following
descriptions. First-against will, secondary-without her consent. Thirdly-with
her consent, when her consent has been obtained by putting her in fear of
death or hurt, fourthly-with her consent, when the man knows that he is not
her husband, and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
Fifthly – with or without her consent, when is under sixteen years of age.
 2

Explanation – Penetration is sufficient to constitute the sexual intercourse

necessary to the offence of rape.
Exception – Sexual intercourse by a man with his own wife, the wife not
being under thirteen years of age, is not rape.
To have sexual intercourse with a woman against her will is rape. The
expression "against her will"; means that the act must have been done in
spite of the opposition of the woman. Non resistance on the part of the
woman does not amount to consent. It will all depend on the facts and
circumstances of each case. At the same time distinction between "will" and
"consent" also cannot be overlooked.
Union of Myanmar Vs Lin Htain Oo (4) The acquittal sentence of the
accused for section 366 and 376 by court (Mandalay) was unlawful. So the
appeal was submitted. According to the witness, Ma Wah Wah denied to go
with together by consensual. Even though the accused took Ma Wah without
agreement cannot be said he didn't committed the offence.
Consent given by a woman of unsound mind is of no valid. She
was being incapable of giving consent from defect of understanding, it was
held to have committed rape. Consent given by an intoxicated woman is of
no valid. It is not necessary for the defense to prove that sexual intercourse
was with the consent of the woman. Where the accused made false promise
of marriage to a girl and thus obtained her consent to sexual intercourse,
and it was found that she was a minor and her consent was not consent in
law. The only conclusive prove of evidence of a girl's age may be the birth
certificate but where such a document is not available the court or the judge
has to base its conclusions upon all the foots and circumstances disclosed
on examining all the physical features of the person whose age is in
question, in conjunction with such testimony as may be available. Where
there was a controversy as to the age of the victim and the birth certificate
showed which was also consistent with other evidence. The medical opinion
based on ossification test cannot be relied upon in the face of a more
reliable evidence, such as the school admission certificate.
 3

Pa Hta Sa Vs Aye Naut (September 29, 2009) Criminal Appeal No.

(106). The age of the child must be analysed according to the Rules 68
related to the child Law, that was passed by Rules 72(A) related to the child
Law. The birth date in the school registration of the child is priority.
Union of Myanmar Vs Mg Moe @ Mg Thein 1995. The girl cheated her
age and so he thinks that she was aged cannot be taken into account. If
under age he committed offence.
In respect of burden of proof, in a case of rape, the burden
always lie on the prosecution. There is an initial presumption of innocence of
the accused and the prosecution has to bring the offence home to the
accused by reliable evidence. The accused is entitled to the benefit of every
reasonable doubt. If the accused failed to prove this his conviction would be
legal.
There are number of reasons why opinion evidence by ordinary
witness is not permitted. One is that an opinion may be based on a bunch
rather than actual knowledge or expertise and would therefore be
unreliable. In a criminal trial the ultimate issue of innocence or guilt may
turn on a complex technical issue such as DNA evidence, the interpretation
of medical evidence. The judge must have the detailed technical knowledge
require to decide. It is clear that this is where the combination of expert
evidence and the expert witness forms an important part of many criminal
and civil.
Mg Mg Vs Socialist Republic of the Union of Myanmar 1976 Pg-40,
Merely the sperm did not find on Woman's cloth, the accused would not be
said he did not committed rape. Informed to the people as soon as she was
raped is the vital fact of the case to prove the rape.

In respect of punishments for rape. The Pyidaungsu Hluttaw was

passed by The Penal Code amendment law (1aw no-10) in 25.3 2019.
According to section 376 of this law, (1) whoever commits rape except the
offences of rape contained in sub-sections (2) and (3), shall be punished with
imprisonment for a term of twenty years or with imprisonment of either
 4

description for a term which may extend to ten years, and shall also be
liable to fine. (2) Whoever commits rape against a woman who is his own
wife and is not under twelve years of age, shall be punished with
imprisonment of either description for a term which may extend to two
years or with fine or with both. (3) Whoever commits rape against a woman
who is under twelve years of age shall be punished with imprisonment for
life, or with imprisonment for a term of twenty years.
Section 376 is non-bail able offence and warrant case. The accused
person would be in jail first and file the suit at Court. In an uncertain
evidence, he would not fair. According to medical evidence, the police's
procedure, a suit must be firmed. To be justice for both parties, the new law
should be enacted.
Conclusion
 Whoever commit rape under Section 375 of Penal Code, he will
be punished under Section 376 of this Act.
 To be a rape, there would be sexual intercourse with a woman
without her consent, use by force, under age.
 The opinion of experts, other circumstances, social behavior and
morality are need to be taken into consideration by the judge.
 The right of private defense which extend to causing death can
exercise in rape case. Sexual assault on a child is an act of
irreparable violence and trauma for the Victim.
 So, rape case is a social crime that commit on the Victim and our
society. We have to prevent effectively.