Rape
 S.375 PC - 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 following descriptions:
(a) against her will;
(b) without her consent;
(c) with her consent, when her consent has been
obtained by putting her in fear of death or hurt
to herself or any other person, or obtained
under a misconception of fact and the man
knows or has reason to believe that the
consent was given in consequence of such
misconception;
(d) with her consent, 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;
(e) with her consent, when, at the time of giving
such consent, she is unable to understand the
nature and consequences of that to which she
gives consent;
(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;
(g) with or without her consent, when she is under
sixteen years of age.
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 by a marriage which is valid under any
written law for the time being in force, or is
recognized in Malaysia as valid, is not rape.
Explanation 1—A woman—
(a) living separately from her husband under a
decree of judicial separation or a decree nisi
not made absolute; or
(b) who has obtained an injunction restraining her
husband from having sexual intercourse with
her, shall be deemed not to be his wife for the
purposes of this section.
Law 2311 Criminal Law II
Explanation 2—A Muslim woman living
separately from her husband during the period
of ‘iddah, which shall be calculated in
accordance with Hukum Syara’, shall be deemed
not to be his wife for the purposes of this
section.
Husband causing hurt in order to have sexual
intercourse
 S.375A PC - Any man who 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 shall be
punished with imprisonment for a term which
may extend to five years.
Punishment for rape
 S.376(1) PC - Subject to subsections (2), (3) and
(4), whoever commits rape shall be punished with
imprisonment for a term which may extend to
twenty years, and shall also be liable to whipping.
 S.376(2) PC -Whoever commits rape on a woman
under any of the following circumstances:
(a) at the time of, or immediately before or after
the commission of the offence, causes hurt to
her or to 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
sixteen years of age;
(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,
shall be punished with imprisonment for a term of
not less than five years and not more than thirty
years and shall also be liable to whipping.
 S.376(3) PC - 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, shall be punished with imprisonment
for a term of not less than eight years and not more
than thirty years, and shall also be punished with
whipping of not less than ten strokes.
 S.376(4) PC - Whoever whilst committing or
attempting to commit rape causes the death of the
woman on whom the rape is committed or
attempted shall be punished with death or
imprisonment for a term of not less than fifteen
years and not more than thirty years, and shall also
be punished with whipping of not less than ten
strokes.
Incest
 S.376A PC - 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 not permitted, under the law, religion,
custom or usage applicable to him or her, to marry
that other person.
Punishment for incest
 S.376B(1) PC - Whoever commits incest shall be
punished with imprisonment for a term of not less
than six years and not more than twenty years, and
shall also be liable to whipping.
 S.376B(2) PC - It shall be a defence to a charge
against a person under this section if it is proved—
(a) that he or she did not know that the person
with whom he or she had sexual intercourse
was a person whose relationship to him or her
was such that he or she was not permitted
under the law, religion, custom or usage
applicable to him or her to marry that person;
or
(b) that the act of sexual intercourse was done
without his or her consent.
Explanation—A person who is under sixteen years
of age, if female, or under thirteen years of age, if
male, shall be deemed to be incapable of giving
consent.
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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 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?
Law 2311 Criminal Law II
 Generally, a husband cannot commit rape to his
wife.
Exception to s.375 —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 recognized in Malaysia as valid, is not rape.
 Therefore, to constitute rape, the man must not
the woman husband.
 However, S.375A PC – the husband who 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 shall be punished with imprisonment for
a term which may extend to five years.
 There is exceptional to the husband liability,
- If a woman is during judicial separation or have
been granted injunction to have sexual
intercourse, the man can be guilty for the
offence of rape.
- For a Muslim man, if the woman is still under
iddah period, the husband having sexual
intercourse with the woman can still guilty for
rape.
- ***remember, criminal case in Malaysia only
can be trial at Criminal Court and not Syariah
Court.
 S.375 PC cross refer to s.113 of the Evidence Act
1950 It shall be an irrebuttable presumption of
law that a boy under the age of thirteen years is
incapable of committing rape.
 For rape, is must not have consensual:
 S.375(a) and (b) – against her will and without
her consent.
 S.376 (c) – although she consented but the
consent was given in fears of death or hurt to
herself or any other person, or obtained under a
misconception of fact. (Cross refer to s.90 and
s.44 of PC.)
 S.375(d) – with her consent but it is not a valid
consent due to misconception of fact to the
identity of the man to whom she believes that
she is having sexual intercourse with her husband
and not with other person.
 S.375(e) – with her consent but it is not a valid
consent due to misconception of fact that the girl
is unable to understand to the nature and
consequences of her acts.
 S.375(f) - with her consent but it is not a valid
consent due to the position of authority over her.
 S.375(g) PC stated a girl with or without her
consent, when she is under sixteen years of age
have sexual intercourse with a man, the man is
liable for rape. (Statutory rape)
 “Consent”
- Must come from the woman herself
- Must be given prior to each sexual intercourse
or before the sexual intercourse.
- No one else can give consent on behalf of the
woman.
Director of Public Prosecutions v Morgan
[1976] AC 182
- The defendant M invited the other three
defendants, much younger men, to his house and
suggested that they should have intercourse with
his wife, telling them that she was "kinky" and
any apparent resistance on her part would be a
mere pretence. Accordingly they did have
intercourse with her despite her struggles and
protests.
- The wife gave evidence that she resisted and did
not consent.
- The three young defendants in their evidence
said that they had believed what M had told
them, that the wife had resisted at first but had
later actively co-operated in the acts of
intercourse.
- Held: The wife did not consent and the
defendants were convicted.
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Rape
PP v Zainal Abidin Bin Ismail & 3 Ors - [1987] 2
MLJ 741
 The victim and her cousin was at a beach until
1.00am and when they were about to leave, four
accused had identified themselves as members of
the Religious Department C.I.D arrived and stop
them. Later, they have sexual intercourse with the
victim who then claimed that she was afraid and
force to submit.
 Three accused were charged with raping a 20 year-
old girl and the 4th defendant (D4) was charged
with attempting to rape her.
 The accused argued that the girl was willing to have
intercourse because she did not 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.
Law 2311 Criminal Law II
 Ratanlal & Dhirajlal stated that limb (a) and limb
(b) can be distinguished and referred to different
categories of woman:
- Limb (a) is referring to a “sound woman” and
only sound woman is capable of having a will.
- Limb (b) is referring to an “unsound woman”
for whatsoever reason is incapable to give a
valid consent.
 Medical examination report is required to explain
whether is forceful penetration or not, nature of
fear, by blunt object.
PP v Ku Hang Chua - [1975] 2 MLJ 99
 The accused D1 was charged with an offence of
rape, allegedly committed by him on a 17 year old
girl.
 D2 originally was charged with abetting the
offence of rape but later withdrawn and gave
evidence for the prosecution.
 Accused forced both the complainant's thighs
apart with both his hands. Having done so he
climbed on top of her and played with her private
part with his hand and at the same time putting
his finger into her vagina. D1 then raped her.
Complainant said that she felt accused had
inserted his penis into her vagina many times. It
lasted for 5 to 10 minutes and she felt pain.
 Medical evidence where the complainant was
examined about four hours after the incident.
Swab were taken from the complainant’s vagina
which was found that there were few
spermatozoa present on the swab. This according
to the doctor confirms that the complainant had a
recent sexual intercourse.
Held:
- To constitute an offence of rape the sexual
intercourse which the complainant had must
be committed against her will or without her
consent
- The complainant was positive that it was the
accused who raped her and not D2.
- There was corroboration of the evidence and
D1 was found guilty for rape.
Sidek Bin Ludan v PP [1995] 3 MLJ 178
 The appellant was convicted on two charges of
raping a minor aged nine.
 Held: To constitute rape there must be
penetration even the slightest penetration may
be adequate for the sexual intercourse
prescribed under s.375.
Nasrul Annuar Bin Abd Samad v PP [2005] 1 MLJ
619
 The accused was charged with an offence of rape of
a girl aged 14 years and 3 months old at the time of
the offence.
 The accused was found guilty and sentenced.
 The accused appealed and claimed that penetration
had not been proved by the prosecution as
whatever the girl testified that at the time of the
alleged rape, she did not see anything that
happened to her from her stomach downwards and
that she only presumed that the penis of the
accused had penetrated into her private part.
 Held: allowing the appeal and quashing the
conviction and sentence.
- To prove rape, DPP must prove two things, (i)
there was sexual intercourse between the
accused and the victim, (ii) the victim was
certain that is the accused that who had actually
penetrated her.
- The victim cannot confirm it was the accused’s
penis had penetrated into her private part, even
though she admitted and she felt that she had
been penetrated.
- Therefore, there was no clear evidence to show
that the penis of the accused had penetrated into
her private part.

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Rape
Ah Mee v Public Prosecutor - [1967] 1 MLJ 220
 A Chinese female rubber tapper, 17 years old, had
alleged that she was raped by the appellant in a
rubber estate while she was 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.
R v Jordan (1839)
 Held: To constitute penetration, the parts of the
male’s penis must be inserted in those private
parts of the female, even though with very slight
tear, rape have been committed, but, as matter of
law, it is not essential that the hymen should be
ruptured.
Gopala (1895)
 Held: Every act done against the will of the woman
is an act without her consent. However, not every
act done without her consent is against her will.
R v Flattery (1859)
 The prisoner professed to give medical and surgical
advice for money.
 The prosecutrix, a girl of nineteen, consulted him
with respect to illness from which she was
suffering.
 He advised that a surgical operation should be
performed, and under pretence of performing it,
had carnal connection with 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.
 The only thing she consented to was the
performance of a surgical operation.
 Held, that the prisoner was guilty of rape
Law 2311 Criminal Law II
R v Camplin (1845) 1 Cox C.C. 220,
 The accused made the female was a 13 year old
girl to become intoxicated before having sexual
intercourse with her.
 Held: "It is rape to have carnal knowledge of a
woman who has been rendered insensible
through liquor even though the accused gave
her the liquor only for the purpose of exciting
her, or where she does not resist because her
submission is due to the fact that she is drunk.
A woman who is insensible is incapable of
giving consent.
State Of Maharashtra vs Prakash And Another
AIR 1992 SC 1275.
 Accused was a Police Constable and used his
authority over the victim to induce her to have
sexual intercourse with her.
 Held: No valid consent.
The appeal court took into consideration the fact
that victims were poor rustic villagers earning
their livelihood by daily labour. They were
threatened by the police constable, who was in
uniform on bandobast duty, of having attempted
to defile the Ganapati idol and threatened with
police remand and all that follows. To these poor
rustic helpless villagers, the police constable
represents absolute authority. They had no option
but to submit to his will.
R v Mayers (1872) 12 Cox C.C. 311
 A sleeping woman taught that she was having
sexual intercourse with her husband but turnout
to be another person.
Held:
- If a man has or attempts to have connection
with a woman while she is asleep, it is no
defence that she did not resist, as she is
incapable of resisting. The man can therefore be
found guilty of a rape, or of an attempt to
commit a rape
- It was held that a sleeping woman could not
consent.
The King v Williams [1923] 1 KB 340
 The appellant, who was engaged to give lessons in
singing and voice production to a girl of sixteen
years of age, had sexual intercourse with her under
the pretence that her breathing was not quite right
and that he had to perform an operation to enable
her to produce her voice properly.
 The girl submitted to what was done under the
belief, wilfully and fraudulently induced by the
appellant, that she was being medically and
surgically treated by the appellant and not with any
intention that he should have sexual intercourse
with her:-
Held: The appellant was properly convicted of
rape.
 Where the consent or submission of a female, to
sexual intercourse is obtained by false pretences
or false representations, such consent or
submission is no defence to a charge of rape.
Augustine Foong Boo Jang v Public Prosecutor
[1990] 1 MLJ 225
 The applicant was charge for raping his Filipino
maid and was convicted.
 The applicant had alleged that there had been a
continuing consent to continuous intercourse
extending over a period of at least two months
prior to the rape.
Held:
- The doctor made it clear that this recent
laceration was consistent with recent
intercourse. It is difficult to see that it could be
consistent with intercourse extending over that
whole period.
- There is a fundamental difference 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

4
Rape
it is not difficult to see why she did not resist
perhaps as strenuously as has been suggested
she should have done.
- It is perfectly apparent from her own story that
she did put up as much resistance as she could.
Ab Malek Bin Atan v Public Prosecutor [2002] 4
MLJ 84
 The complainant alleged that she was raped on two
occasions by the accused in his room but the
accused maintained that the complainant had
consented to sexual intercourse on both occasions
Held: Appeal allowed
- It was a rule of practice that in sexual offences
the evidence of a complainant must be
corroborated. The critical matter for initial
consideration was the credibility of the evidence
of the complainant.
- The complainant had submitted to the desires of
the accused in view of the threats held out by
him. Evidence of the manner in which the
complainant was threatened was therefore of
critical importance in order for the charges to be
sustained
Law 2311 Criminal Law II
 Whether rape is strict liability offence or not?
 Factors to determine:
i. Nature of the offence
- Mala in se or mala prohibita, if mala in se,
it’s cannot be strict liability offence.
- Quasi crime or full crime, if quasi crime,
then it is a strict liability offence.
ii. Nature of punishment
- Severe or less severe – if severe
punishment, it’s not strict liability offence.
- Monetary or punitive – if monetary, it’s
strict liability offence, and if punitive, it’s
not strict liability offence.
iii. Will by making it strict liability and ensure
proper implementation of the…
iv. Against public moral, safety and security
 Therefore, rape cannot be strict liability offence.
 Interpretation of the s.375:
i. Literal approach – the fact that in the absent
of the mens rea, it was the intention of the
law maker not to include mens rea in s.375.
- Therefore, cannot apply literal approach
because it will cause injustice.
ii. Common Law approach / Retention of Mens
Rea / Presumption of Mens Rea.
- The maxim of “actus reus non facit reum
mens sit rea”
- Even though s.375 was silent on mens rea
and the presumption of mens rea is still a
requirement.
- DPP must prove the element of mens rea
- The problem with the common law
approach is that there is a need to prove
mens rea, but what is the actual mens rea
need to be proved.
- That’s why cases in the past, most of the
accused cannot be found guilty for rape
because the elements of mens rea cannot be
proved.
- Certainly, the common law approach is
correct but still not solving the problem.
- Common law approach is not applied in
Malaysia anymore.
iii. S.6 and s.40 PC approach is applied in
Malaysia or via the back door approach.
- All offence must have actus reus and mens
rea
- Usually, the requirement of AR and MR are
expressly mention in the provision, i.e. via
the front door.
- S.375 – AR is provided
- S.375 is silent on the MR and via the back
door by inference from s.6 and 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.