legal issues
 
Tuesday, November 29, 2005
Criminal: Rape - Section 375 should be amended?
Rape is the act of a man forcing a woman to have sexual intercourse with him, against her will. In the minds of the public, rape is also associated with violence, fear and intimidation[1]. Sexual intercourse according to Halsbury's Law of Malaysia is penetration of penis into the vagina. A slight penetration is also considered as rape. In the case of R v. Miller which the late Prof. Ahmad Ibrahim extracted the definition of rape as unlawful carnal knowledge of a woman without her consent by force, fear or fraud[2]. According to section 375 of the penal code, a man is said to commit rape when he has sexual intercourse with a women against the woman's will, without her consent, misconception and having sexual intercourse with a woman under 16 years old. [3]
In order to establish the offence of rape, there are two elements that should be established; actus reus and mens rea. Actus reus in rape under explanation in section 375 of the penal code is penetration. However, just because a women is not bruised, bleeding and terribly distressed does not mean she has not been raped. The law says that " in proving a charge of rape it is not necessary to prove that what might otherwise appear to have been consent was in reality merely a submission induced by force, the fear of force or fraud, but merely that the victim did not consent." There does not have to be violence, merely lack of consent or recklessness on the part of the rapist as to whether the woman consented or not
[4].
The question now that should be look at is whether the sexual intercourse or penetration in the offence of rape should be amended to reflect the various offences now occurring that invade a woman's modesty. After further analyzing and reading at certain cases and other law sources, we completely disagree that the actus reus in the offence of rape should be amended. The arguments are presented as follow.
There are various offences that can invade a woman's modesty. There are sexual assault, attempt to do unlawful intercourse, flashing and other unlawful or illicit intercourse which are against the order of nature. Different offences have different actus reus. In the offence of rape under section 375, the actus reus is only sexual intercourse and no other. The question then will arise is whether the actus reus is sufficient enough. One can argue that even though without penetration, a woman can suffer mentally impact as same as other woman that had been raped.
Like say, if a man tried to rape a woman and had fulfill all the elements in rape except the actus reus that is sexual intercourse, he should not be liable for the offence of rape. This man may act violently against the woman and against her modesty but his act is not rape. Although it seems that this section is against the right of a woman, to amend the actus reus in the offence of rape may actually cause overlapping with other sexual offences that are provided in the penal code.
In the offence of sexual offences stated in section 354 of the penal code, any assault or criminal force to a person with intent to outrage modesty, shall be punished with imprisonment for a term which may extent to 10 years, or with fine, or whipping, or with any two or such punishments. In order to establish the sexual assault, the actus reus of the act is that there must be physical gesture which may cause the victim to feel reasonable apprehension that sexual offence will be committed, this was well mentioned in the case of Public Prosecutor v. Basar
[5]. If the scope of section 375 is widen and include sexual assault as amounting to rape, then it would be difficult for the court to assess the offence committed.
In Section 366, the act of kidnapping or abducting a woman in order that she may be forced or seduced to illicit intercourse has covered the actus reus which will invade a women modesty. In the case of Lim Baba v Public Prosecutor
[6], the appellant was convicted under section 366 for abducting a woman to have illicit intercourse. This section has definitely covered the act of kidnapping or abducting woman which will lead to outraging the modesty of women.
Section 511 has also covered punishment for any attempt to rape, therefore if any amendment to be made to section 375 then it will contradict with section 511.This is well covered in the case of Public Prosecutor. v. Zainal Abidin Bin Ismail & Ors
[7] ,which illustrated the offence of attempt to rape where the learned judge stated that the acts which he took preparatory to the offence, namely by lying on top of the girl,with his expressed intention of having inter course are sufficient in law to constitute an attempt to rape[8].
By the virtue Section 509 of Penal Code, it is stated whoever, intending to insult the modesty of the woman by words, gesture or exhibit any objects shall be punished with imprisonment for the term which may extend to five years or fine or both. This section has already covered any acts done which intending to insult the modesty of any woman, thus justify the arguments we laid above.


As a conclusion, it can be concluded that section 375 should not be amended as it will overlapped with other section. Furthermore if other offence is inserted in the same category of rape, it will be difficult or the court to asses the offences thus will prejudiced the disputing parties and the system of justice.
[1] George P Raven, The Criminologist, 1993 pg 66.
[2] [1986] 2 MLJ lv.
[3] See Mohd Majid (1977) 1 MLJ 121
[4] George P Raven, The Criminologist, pg 68.
[5] [1965] 1 MLJ 75
[6] [1962] 1 MLJ 201
[7] [1987] 2 MLJ 741
[8] Ibid, p. 748
-ahmadgeronimo-
posted by Q-KHALIFA @ 6:15 AM  
0 Comments:
Post a Comment
<< Home
 
 
"Legal Study"

Emansipatif, Liberatif Dan Pencerahan

Issues
Archives
Objectives

- To give information on legal issues and others and To provide a room for discussion.

Co-ordinator

Ahmadgeronimo,Eekmal Ahmad(studying in Bachelor of Legal Studies(BLS) at UiTM.

Links
Templates by
Free Blogger Templates
Mesothelioma Attorney
Number of Visitors