THE ISSUE OF CONSENT IN RAPE CASES
BY
ABD RAHIM BIN OSMAN
(82821532)
SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENT
FOR THE DIPLOMA IN LAW AT THE
MARA INSTITUTE OF TECHNOLOGY
SHAH ALAM, SELANGOR.
JUNE 1986.
•DON'T RESIST IF YOU WANT TO SURVIVE RAPE
"IF YOU-DID NOT RE.^ST YOU MU<H 'HAVE CONSENTED'
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FOR MY BELOVED
MAK, ABAH, ATOK AND BUSU
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TABLE OF CONTENTS
Preface
Acknowledgements
List of Cases
Table Of statute
CHAPTER I
-Introduction
-Objectives Of study
-Scope Of Study
^Methodology
CHAPTER II
-Rape in General
-Introduction
-Elements of Rape
-Section 375,
Penal Code
-First Clause
-Second Clause
-Third Clause
-Fourtl Clause
-Fifth Clause
CHAPTER III
-Consent
-Introduction
*©ĕfirtitioii of Consent
-When Consent Is Absent
CHAPTER IV
-Corroboration
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2k - 26
-Proof of Rape
-Purpose Of Corroboration
.......
-Matters to be corroborated
........
26
27-35
CHAPTER V
-Impeachment of prosecutrix's
credibility s.155 (d) E Y . Act
J-IaSis of Impeachment
35 - 38
........
38-40
........
40-43
.............
43
-Writer's Observation and
comments
-Summary
CHAPTER VI
-Conclusion
-Justice
.......
-Reform P r o p o s a l s
........
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44
45-49
PREFACE
This paper is inspired by the everyday happenings of
cases read in the newspaper.Rape being; most common of violence
against woman., is not just sex. Rape is not shown as an ugly
violent act in phonography, but the woman is depicted as
eventually enjoying it and behind her cries are supposedly
the moans of enjoyment and acceptance»
The reasons for rape are almost seen as due to the woman;
her attire, her courage to walk at night and other instances
including morality are used to pro¥e consent on. her part.
Further, in the eyes of society, if an unmarried woman is
raped and if it is found out that she is not a virgin at the
time of the alleged rape, there will be almost automatic
inclination to think that perhaps she consented.
It is due to this inj,ustice( if the writer may say ) ,
that has led the writer to examine the state of the present
law and to make, if possible appropriate proposals and
suggestions .The writer feels that the state of the present
law is not balanced in that it does not confer sufficient
protection to the victim, leading normally, the woman holds
back the charges and refuses to report the case resulting
the offender usually get away scot-free.This therefore,
should be putt-off as history and not as a present happenning
in a civilised society today.
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ACKNOWLEDGEMENTS
This paper was prepared in haste due to constraints
of time.And if not because of the following persons% help
and assistance, completion of this paper would not have
been possible.
For much invaluable assistance, and guidance in
making, this project paper possible, the writer is most
grateful and greatly indebted to Mr. Valentine Manuel
for the supervision of this paper.
Special gratitute and appreciation for encouragement
and support is much owed to lecturers; Mr. Hardial Singh
s/o Banta Singh, En. Khalid Yusof,just to name a few.
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LIST OF CASES
1) Abdullah v R
( 1954 ) MLJ 195
2) AE&r-ud-dia v King Emperor 82 IC 64
3) A.W.Khan AIR 196 2 CAL 641
4) Beli SiiLgk v Emperor 75 IL 11
5) Chui Nang Hong v PP
6) Davies ¥ PP
7) Din ¥ PP
(1975 ) MLJ 40
( 1954 ) 38 CR.App 11
(1964 ) MLJ 300
8) DPP ¥ Hester
( 1973 ) ALL ER 303
9) Jegattoesan v PP
(1980 ) MLJ 165
10 Keramat ¥ R
( 1966 ) 6 320 42
11 Nurullah
¥ Emperon
147 IC 759
12 People v Abbot
( 1828. ) 19 Weird 192
13 People v Moore
48 Cal Id 541
1% People ¥ Jotonson
(1895 ) 106 Cal 289
15 PP ¥ Ku Hamh Chuah
16 PP ¥ Sel¥arajah
17 Packineau ¥ US
1® R
(1975 ) 2 MLJ 99
( 1984 ) 1 MLJ 93
( 1953 ) 8th, Circuit 202
¥ Basker¥ille
( 1916 ) 2 KB 65
19 R ¥ Beale 35 LJMC 60
20 R ¥ Camplin
( 1845 ) 1 Cox ZZ
21
R
( 1913 ) 2 KB 271
ZZ
R ¥ Clarke
2.3
R
¥ Cargill
( 1949 ) 33 Cr.App 216
¥ Cockroft
( 1931 ) ZZ Cr.App 33
24 R ¥ Da¥ies
25 R ¥ Dee
26 R
( 1884 ) 11 Cox 579
y Draper
27 R ¥ E¥ans
( 1870 ) 11 Cox CC 410
( 1929 ) 21 Cr.App 149
( 1965 ) 2 QB 298
28 R ¥ Flattery
(1877) 2 QB 410
29 R
( 1866 ) LR 30
¥ Fletcher
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30; H
v
Hallet
1841 ) 9 CP 748
R
v
Hedges
1909 ) 3 Cr.App.Rep 262
31
32: R v Homes
1871 ) CR. 1 CCR 334
33: R ¥ Mayer
1872 ) 2 Cox 311
34: R v Miller
1954 ) 2 QB 2&2
35: R v Osborne
O905 ) 1 KB 551
36: R v Page
1846 ) 2 Cox 133
3?: R ¥ Prince
186? ) Cox 635
38: R v Riley
1887 ) 18 QB 481
39: R ¥ Redpath
1962 ) 46 Cr.App.Rep 519
%o: R v Waite
1893 ) 1 QB 320
R
¥
Williams
42: R
v
Williams
41
43; Sultan ¥
1892 ) 2 QB 600
1923 ) 1 KB 240
Emperor
$7
44> Tay Ckoon Nam & Other
IC 1056
v
R
( 1949 ) MLJ 1 57
45: Tiiam Kai You v PP ( 1977 ) MLJ 174
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UNREPORTED CASES
1) Eanafi MoJbid.Yunus & Zabedah MS.Yumus
w BP (Criminal
Appeal No.9 of 1972
2) Jusoh Atodullak
T
PP ( Fed.Court Appeal No.V1974
3) PP
v
Clot'lag Wah Woo ( Higto Court Penang Cr.Trial no. 6/69
if) PP
V) Roy Leslie Carter ( High Court Penang Cr.Trial
no.13/1974
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TABLE OF STATUTES
1t) Penal Code ( FMS 6ap. W? )
2) Evidence Act ( 1950 ) Rev. 1971
3) Womwn's And Girl's Protection Act 1973
k) Indian Evidence Act (I)
5) Indian Penal Code
XIV
1872
I860
6) Law Reform Marriages And Divorce 1976 / Act 16/f
7) Sexual Offences Act
1956
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CHAPTER I
Introduction:
Rape like all sexual offences falls into the category
of lurid crime which is often discussed in a circumspect
manner and suspicious of the motives of any interviewer.
This is because there are many who age curious and would go
through great lengths to its sensational story.
Objective Of the Study
The purpose of this study is to look into the offence
of rape in Malaysia from a legal point of view and to eval­
uate the law in rape trials and to scrutinize on the related
aspects especially on the issue of consent.
Consent is such an important issue with which if
provened the accused will be convicted and if otherwise the
accused will be acquitted.The real questions here are:In
what way must it be proven? Must the prosecution go behind
the prosecutrix and look into her background to find
consent? Or must the prosecutrix adduce evidence of torture
and force to prove non-consent? Or must the court look
into the relationship of the parties to decide consent?
Thus, this study is more concerned about the effect
of certain rules of evidence like corroboration and
impeachment on, the prosecutrix in forcible rape on adult
rather than statutory rape;ywhere consent is not in issue
at all.
One should observe that not only rape is understudied
it is remained unreported in many jurisdiction, for example
in the United States Of America, for apparent reason that
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it has unpleasant ramifications for the victim.Failure or
reluctance to report rape stems normally from fear of
repraisal to the belief that there will toe no redress from
the courts.
Defence counsel will usually try to discredit the
prosecutrix evidence of non-consent
by making humiliating
inquiry into the complainant's behaviour, dress and sexual
experiences.
The writer's objective of the study is to highlight
the existence of this processive problem in the Malysian
society and to discuss some relevant aspects of the law
which the writer feels has adversely affect the complainant.
In chapter II of this paper the writer will highlight the
necessary ingredients of the crime of rape and what in fact
must be proved in court.
The number of women who go through the trumatic
experience of rape
is getting higher day by day.The voices
of the rape victims are like the lone voices in the
wilderness.On top of that, when a^weman reports rape, more
often than not she is ridiculed and it is the rape victim
rather than the rapist who ends up being put on trial.Her
character is shredded and she ends up more broken than ever!
The injustice continues since a substantial number of
rape cases are thrown out of the court due to lack of evidence.
Evidence tends to be destroyed by the confused, ignorant
victim.Rape cases in our court, are less likely to be
succeeded by the prosecutrix because our existings law
place the byrden on the victim to prove that she did not
consent to the rape.
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-3Thus this paper is inspired by the general belief
that rapists normally get away because of some defects in
our law.Therefore, the writer attempts to review the evide­
ntial aspects relating to the issue of consent to find the
position of the law which is usually overshadowed by the
interests over the facts.
Scope Of The Study
The writer will focus his study of rape to that of the
evidence in rape trial and that this study is made on frhie
premise that the woman does not have adequate protection
in the sense t h a t prove of consent^tfaniibe adduced by i n q u i 2
ring into her background and by way of corroboration.
In this paper the substantive law is discussed in
chapter II, followed by discussion on the issue of consent.
The later chapter will deal with the examination of evidence
required to uphold conviction; such of that like coroboration
and impeachment on the prosecutrix credit»It is the writer's
view that many rapist7who were acquitted is due to the facts
that victims are usually prejudiced by the stringent rules
of evidence and the decided cases tend to confirm this
view.
Methodology
-
The writer mainly did his study through library
research*His materials are mainly from textbooks, journals,
articles and seminar papers especially of those presented
fejf the Joint Action Group Committee.
2. Impeaching her credit. Section 155(d) Evidence
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Act 1950
Special references are also made to past project papers
of Mara Institute Tencnology students.A paper written by
Maggie Leong on 'Evidence In Rape Cases'(1978/79) University
Malaya is made as guideline and format guidance and some
extracts are also taken.
No interviews with the victims, enforcement officers
or the police were conducted because there was no such nece­
ssity as this paper deals substantially with substantive and
evidential aspects off the law.As such it is based on the
study of decided cases in the law reports of England and
India with special referances on the local law.
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CHAPTER II
Rape in general
Introduction;
Indeed rape is always being regared as a grave and
serious offence by society and its law enforcement agencies.
It is an offence which has been committed from time
immemorial.However our knowledge as to some important aspects
of it is nevertheless limited and incomplete.
There are several reasons as to why this is so.Firstly
statistical representation of rape is so hard to obtain,It
is subjected to all the well-known limitations of gathering,
valid and reliable data about crimes in general.Statistically
rape is a relatively infrequent offence because not all rapes
2
are reported.
Secondly, rape is a highly personal and unorganised
offence.There is hardly any likelihood of gathering
participants data.Victims are unlikely to be cooperative
even is they can be located.lt must be borne in mind that
many rapes go unprosecuted bacause of the victims' reluctance
to press charges and to bear witness against rapists in an
open court.The accusseds in rape cases are just as difficult
as the victims to be located and to interviewed.
Data on convictions and acquittals of rape&crssss in the
High Court at Kuala Lumpur was not representative enough
for drawing any definite conclusions.There were only 32
cases tried in the High Court between 1968 to March 1978.
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And finally, rape likd all sexual offence falls within the
category of lurid crime which is often discussed in a
circumspect manner and thus makes it almost impossible
for interviewer to get asess as to any information thereof.
A common experiece in life is that a criminal victim
will have a sort of sympathy from public, but rape is a bit
peculiar in that not all victims will be regarded with
sympathy.lt is usually a matter of oath against oath and
needless to say opinions will vary between those who are
convinced that an offence had been committed and those who
feel that an innocent man has been wrongly accussed.lt is
undoubtedly true that an accessed in rape trials get
acquitted too often and that the victim is being unfairly
treated.
It is undeniable that almost all laws are created by
the men in most societies, hence there could be(if the
writer may say) unconsciously biased against females especially in an offence where only female can be the
complainat.Some authorities on this subject have made
statements which are prima facie very biased!For example
Wigmore warns darkly of the evil of putting an innocent man
liberty at the mercy of an unscruplous and revengeful
mifeifcress.
Wigmore on Evidence section 200 at page 683
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Elements of Rape
4
Rape is defined by thje Oxford Companion Of Law^as
a
crime of a man having sexual intercourse per vaginam with
a female, not being his wife(unless they are separated)
knowing it is done without her consent or reckless as to
rahethter she c o n s e n t s o r not..
Rape is not only a man violating a woman.It is an
invalidation of a woman's right as an individual.lt is an
assertion of male power and authority- It is a way of
intimidating a woman,-*
Under English common law, the crime of rape consists
in having, unlawful sexual intercourse with a woman without
her consent;e without her free and conscious permision»
Motzley and Whiteley's Law Dictionary defined the
offence of rape in its simplest term as the ravishment of
a woman, without her consent,by force, fraud or as the
carnal knowledge of a woman by force, fear against her
will.7
The word rape is derived from the latin word 'Rapere'
to snatch, it literally means a forcible seizure.The
characterisrics of force is generally present in the
commission of the offence.The essence of the offence is that
the commision takes plaee without the consent of the woman.
Non-consent is therefore the gist of the offence and the
five clauses in section 357 of the penal code set up the
circumtances in which the law holds that there is no consent.
^ David M. Walker 1980 pg.1031
5
S.N. Gupta; Criminal Law 1st,Edition 1982
6
Nelson's Indian Penal Code 6thEdition Vol.11 pg.204
7
Wharton's Law Lexicon 14th Edition
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Tke penal Code of Malaysia defines Rape in Section 375
as:
"A man is said to commit rape who has sexual
intercourse with a woman under the circumtances
falling under one of the following descriptions?
1) Against her will
2) Without her consent
3) With her consent when her consent when her
consent has been obtained by putting her in fear
of death or hurt
if)'-"With her consent when her consent the man knows
that he is not her husband and her consent is
given because she believes herself to fee lawfully
married or to whom she would consent
5) With or without her consent when she is under
fourteen years of age.
Penentration is sufficient to constitute the sexual
Q
intercourse foe the offence of rape.
Thus the prosecution must prove the following beyond
reasonable doubt:
i) That the accused had sexual intercourse with the
complainant,
iil^-The intercourse was had under any of the five
the descriptions.
iii) That such a woman:/«as not his wife and she is
not under fourteen years of age,
iv) That there was penentration however slight.
Q
Explaination to section 375 of the Penal Code
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Referring to the definition of rape under the Penal
Code, it would seems the offence is quite different from
other crimes.It is sex-specific,that is, it can only be
committed by a male against a female and thus any rule which
is in the complainantĕs disfavour can be said to fee biased
against females( As they are the only complainant) ..Then there
is this requirement of corroboration in every case.Though it
9
is only a rule of practise, it has the force of law. The
other two types of evidence which require corroboration are
accomplice and evidence of children of tender years.Both are
r
* " impeachment
statutory requirements under Malaysian Law. 10The
of complainant's credit using her morals is found in section
155(d)ii;of the Evidence Act 1950.This has been a subject which
is much discussed in the United States Of America.The controv
*ersy in America is over the wxtent to which a defence counsel
can prove into the complainant's sexually history.One obvious
reason for objecting such an investigation would be that a
complainant's sexual history has little relevance to the case
in issue unless it involves previous instances of intimacy
withi the accused because in such a case consent could have
been given by the complainant.
R v Baskerville(19l6) 2 KB
Evidence Act 1950, Section 11Mb) and Section 133A
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Section 575 Of The Penal Code
We have observed earlier the meaning of rape in general.
In this sectiom the writer will attempt to elaborate in muck
detail the definition of rape under section 375 of Penal Code
that
in/ke will explain what each and every clauses of the said
section means.
The clauses under Section 375 of the Penal Code should
be read disjunctively.This is because of the phrse'.1
falling, under any of the five following descriptions".Thus
thaey are applicable independently of one another.If the
accused alleged act falls under anyone of these clauses,he
could have committed an offence if proved beyond reasonable
doubt.There is no need to fulfill all the fi^re descriptions
in order to withhold a conviction under section 375.
As a matter of better understanding,it would be useful
to scrutinise the five clauses briefly;
11
First clause;Against Her Wil
To have sexual intercourse with a woman against her
will is rape.What does 'against her will means? Is there any
material difference between the above and the second clause
"without her consent"? It is apperent that the prosecution
will have to prove that force was used or that there was
resistance if the act was against her will.If it is without
her consent,he would have to prove that she did not consent
to the sexual intercourse.One must,however note that ©very
act done against the will of a person is done without her
consent, but an act done without hetj consent £.s not always
L
against her will.
11 against one's will connotes that the person who ejects
the act is conscious
and resisting.
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Thus, the first clause will apply in cases where the
complainant in a rape
is conscious of the fact that she is
being sexually assaulted and actually resisted the assault.
But, it will be shown in the aext heading that there are
instances whiwre rape can be committed even it it is not
against the will of the complainant.
Second Clause: Without Her Consent
As illustrated earlier, this clause differs from the
first.It provides an alternative test to the original test
of against her will.Its function is to provide for cases
where the act is not against the will of the complainant
but it is still without her consent*Such a situation can
arises when cognitive faculties are in abeyance or absent..12
Third Clause: With Her Con-sent. When Her eonsent Has
Been Obtained By Putting Her In fear Of
Death Or Hurt
There is not aueh difficulty in this clause, it merely
means that of sexual intercourse is consentedn,to because the
complainant was in fear of death or hurt, it would still be
rape.However the only seem lies on the interpretation of
the word 'hurt'.Ttee usual question arises here is: Does hurt
here meas only physical harm or does it means more than that?
i x"
For example does fear of loss of job -"falls within the meaning
of hurt under section 375? This will be dealt with in the l.\
next chapter*
This will be dealt ia much detail in the next chapter.
'5 pj? v Leslie Carter. Criminal trial no;13/1974(unreported)
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F o u t r h C l a u s e ; With hei? c o n s e n t , wfoen the man knows t h a t
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
The meaning which this clause seeks to cover is that
consent will be invalidated if it is given in the belief that
the accused is her husband or a man to whom she believes ;'.
herself to be lawfully married,or that he is another man to
whom she "would consent*
In both instances, the accused must know that he is not
her husband or that the man she believes she is lawfully
married to or the man to whom she would give her consent.
This part of Section 375 of the Malaysian Penal Code is
slightly different'from the Indian Penal Code's corresponding
clause in that there, an accused would be guilty of rape only
if he disguises as her husband or a man she belie¥es to be
lawfully married to.Tfcte section however stop there.
Where the fourth: clause in Seetion 375 would obtain a
conviction if the accused disguised himself as another man to
whom she would consent, eg: a paramour.Thus this will protect
evev unmarried women who would consent to a man thinking that
he is her paramour®If not for this slight differenee-a
Hsdaysian woman like her counter-part in India be unable to
seek redress if she had consented because: she thought the
ac cussed was ker paramour •Hence, it is only fair if the
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unmarried woman is given the choice(not however under the
Islamic Law), she should not be left unredress if some
unscrupulous man takes advantage of the situation.The Indian
society on the other hand appears to be much stricter witfii
their womens* freedom in. the sense that the womwn
can only
consent to someone whom they think is their husband.
Fifth Clause: With or without her consent, when she is
under fourteen years of age
This means that if an accused has sexual intercourse
with a girl under fourteen years of age, hi® will be convicted
once it is proved that sexual intercourse has taken place
notwithstanding whether she consented or not to such ,._
intercourse.This is sometimes termed as statutory rape.The
Law intends to protect young girls under 14 because they are
deemed to be not matured in the eyes of law and that they
could not sufficiently understand the consequences of consent
to sexual intercourse.
So under this clause age is very significant and
important and that it is upon the prosecution to prove that
the complainant was under 14 years of age.If it is provened
that she is in fact under 14 years of age then notwithstanding
whether she consented or not, and as long as penentration is
proved the accused may be convicted.
For the purpose of discussing the issue of consent, the
writer will elaborate in detail on this area in the next
Chapter.
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