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STATUTORY RAPE LAW IN MALAYSIA:

THE ISSUE OF CONSENT
by
CHE THALBI BT MD. ISMAIL, PHD
ASPALELLA A. RAHMAN, PHD
Abstract
Lack of consent is a necessary element in every rape case. However, this
qualifier does not mean that a person may make sexual contac t with a
minor or incapacitated person who actually consented. Lack of consent
may result from either forcible compulsion by the perpetrator or an
incapacity to consent on the part of the victim. Persons who are
physically or mentally helpless or who are under a certain age in relation
to the perpetrator are deemed legally incapable of consenting to sex. The
law will automatically show that the rapist is guilty of the offence of rape
if the victim is underaged even she consented to the act. Hence, this
paper will discuss the law relating to rape offences involving underaged
and helpless people under section 375(f) and (g) of the Malaysian
Penal Code. A legal analysis will be made to see whether certain
circumstances should be considered to release the accused on the basis
of genuine consent given by a person. Hence, section 375(f) and (g) will
not be misused by certain people.
(Keywords : statutory rape, consent)
Introduction

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Historically, rape was defined as unlawful sexual intercourse with a

woman against her will. The essential elements of the crime were sexual
penetration, force and lack of consent. Women who were raped were
expected to have physically resisted to the utmost of their powers against
their assailant. Nevertheless, in certain circumstances, rape can still be
committed even if the victim consented to the intercourse. According to
section 375 of the Malaysian Penal Code, the offender can still be
charged for rape if the woman is under the influence of the offender or
the woman is under the age of 16 years old even if their consent is given.
This has been established by the court in the underaged rape case of
Public Prosecutor v. Nor Afizal Azizan. [1] In this case, the accused was
imprisoned for five years for the offence.
Section 375 of the Penal Code [2] states that:
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;

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(e)

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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.
ExplanationPenetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.
ExceptionSexual 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.
From the above statement, section 375(f) and (g) clearly states that the
consent is immaterial in cases where the victim is under 16 years of age
or under the influence of the offender. This provision seems to open the
gate to a false charge against a man who has a girlfriend under the age of
16. Hence, this provision will be analysed further to see whether it gives
an opportunity to women in certain situations to lodge a report of rape
even if they have given consent to the act. The provision laid down a
legal principle that an offence of rape will be imposed upon a man simply
because the woman is underaged or under the influence of the man.
Interpretation
The word rape is probably derived from the Latin rapere which
means to snatch. The common law defined rape as the carnal

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knowledge of a woman forcibly and against her will.

4
[3]

The victim was

required to prove a continued state of physical resistance to show the

non-existence of consent given. It is generally believed that there should
be some evidence of violence present on the victim before accepting that
rape had taken place. The evidence of violence is expected to arise from
the rapist who uses physical force on the victim or by the victims
struggle. This so-called evidence of physical violence to justify that there
was no will on the part of the woman for sexual intercourse . [4]
As a result of this requirement, the court was led to look for the presence
of some form of physical violence on the victim to corroborate the
allegation of rape. In other words, the presence of physical violence can
strengthen the evidence that the victim had not consented to the
intercourse. However, this belief is presently considered as unfair and
law reforms in many countries have changed their rape laws to overcome
this attitude. In certain cases, the physical effect was not detected due to
the fact that the victim was too young to understand about consent or
the offender himself tried not to make the physical violence visible.
Hence, it is submitted that, at present in most countries, the main issue
pertaining to rape is still on the question of valid consent for
intercourse. [5]
The Malaysian law on rape still retains the sub-section against her will
in its legal definition under section 375(a) of the Penal Code. As already
mentioned, the absence of injuries does not necessarily mean that the
woman was a willing partner. Owing to many reasons, a victim may not
resist the rapist and in that event, the chance of detecting the physical
attack by the rapist is reduced. When victims are taken by surprise they
may be too scared to resist. More importantly, in many instances the

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rapist is an immediate family member, a close relative or a friend.

Several cases are actually incest and many more are statutory rapes where
the victims are under the age of sixteen years.
In many instances also, there are no injuries present to support a struggle
or a physical assault. In the absence of any injuries, the doctor who
examines the victim should seek explanation as to why there was no
struggle or what prevented the victim from struggling. It is alleged that in
the absence of physical injuries the law enforcement agencies and doctors
are reluctant to accept the statement of the victim. The doctor should
show great care in obtaining a detailed history from the victim. He should
have skill and experience in handling such a victim and in eliciting a
good history.
In short, rape is intercourse without consent. However, consent given by
persons below the age of 16 is immaterial as their mental age makes them
unable to consent to a sexual act. Is there any difference between consent
given by minors and consent given by an adult? An in depth discussion
on the concept of consent will be made below.
The concept of consent under the Penal Code
The Penal Code does not provide a definition of what consent actually
means. This leads to a number of problems, including the inappropriate
and semantically curious language of section 375(f) and (g). It is
therefore open to the courts to define the word. [6] Section 90 of the Code
states that:
A consent is not such a consent as is intended by any section of this
Code -

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(a)

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if the consent is given by a person under fear of injury, or

under a misconception of fact, and if the person doing the act

knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception;
(b)

if the consent is given by a person who, from unsoundness of

mind or intoxication, is unable to understand the nature and

consequence of that to which he gives his consent; or
(c)

unless the contrary appears from the context, if the consent is

given by a person who is under twelve years of age.

Hence, according to section 90(c) above, consent is vitiated if it was
given by a person under 12 years of age. Further, the provision also
indicates that consent of a person under 12 years of age may be
recognised when the contrary appears from the context. However, this
consent, again, is immaterial under section 375(g). In other words, the
capability of a person to give consent under the age of 12 under s. 90
does not mean anything to rape cases.
What is the position of a clear consent given by a person above 12 and
under the age of 16? Section 90 of the Code does not state anything on
this situation. Again the ability to give consent in this context does not
give any extra meaning to rape cases since consent is immaterial for
statutory rape cases.
If consent can be given by a person under 12 years of age when it appears
so, how to show it? It has been held that consent always imports
submission but submission does not necessarily import

consent

(Augustine Foong Boo Jang v. PP.) [7] Hence, the consent can be implied

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by the submission of the person plus any corroborative evidence

including any prior intimate relationship between the persons.
The issue of consent
From the above discussion, it is submitted that Consent for sexual
intercourse becomes the sole issue in deciding whether rape has been
committed. However, consent when given should be free, voluntary and
informed. A person who gives consent should understand the exact
purpose for which the consent is given. She should be of consenting age
and in a mental state and of mental development to understand the
implications. There should not be any force, duress or fraud while
obtaining consent. The responsibility also lies with the person who seeks
consent to be satisfied that the woman is consenting freely after having
understood the implications.
According to section 375(f) of the Code, consent is immaterial if it is
obtained by using the accuseds position of authority over a woman or
because of professional relationship or other relationship of trust in
relation to her. It means, the accused will still be convicted for rape if the
prosecutor can establish certain circumstances which create such a
relationship and trust. The provision however, does not explain further in
detail about the relationship. Hence, it is up the court to give a fair
judicial interpretation to the word.
Relating to the above situation, section 375(f) also raises a question,
when a woman can take the opportunity to trap a man using the provision.
It is because the provision can be misused if the woman and man was in a
special relation for a long time. Yet, the man can still be convicted if the
woman can establish that the consent given was merely due to power and

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profesional influence of the man. The man will be the victim of misuse of
such a provision merely because the woman did not get what she wanted.
However, it is also undeniable that this provision was created to protect
women who are under the influence of superiors and are sexually abused.
This is proven when there is clear evidence of servant women reporting
rape by their masters and they are always at risk of sexual exploitation.
However, comtemporaries were only ready to believe that most reports of
rape were false accusations, and poor women prosecuting men with the
power of reputation and solid economic standing must have realised the
danger of reporting. [8]
According to section 375(g), when an accused is charged with rape, and
the victim is under 16 years of age, the offence of rape will automatically
be established even if the woman did give her consent. Relying on this
provision, certain people can misuse this provision to convict men who
are their boyfriends even if the intercourse happened with the womens
consent.
Surprisingly, 80 percent of the total number of rape cases involve women
under the age of 16. [9] To show the large number of cases, from 2007
until 2012, 5,976 underaged rape cases have been brought for trial (2012:
Attorney Generals Office). Further, more worryingly, a majority of the
reported cases revealed that the victims had consensual sexual
intercourse. [10] Unfortunately, the accuseds were convicted due to the
statutory rape provision under section 375(g) of the Code. Hence, are
these convictions justified? The offenders were punished merely due to
the statutory rape provision although in fact, consent was given by their
partners! This is also evident in the case of Public Prosecutor v. Nor

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Afizal Azizan,

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where the accused and his partner, a girl under 16 years

of age, went out together and had intercourse with mutual consent. [12]
It is submitted here that a childs competency to give consent, should be
reviewed and it does not merely depend on the age determined by statute.
The proper measurement test is the intellectual ability of the chil d to
understand the consequences of his/her decisions and acts. Section 133A
of the Evidence Act 1950 also recognises the testimony given by a child
if he/she can understand the nature of an oath, he is possessed of
sufficient intelligence to justify the reception of the evidence and
understands the duty of speaking the truth. Hence, it is immaterial if the
child was under the age of 16, the consent is acceptable so long as the
child has the intellectual capacity to understand required by the law.
Hence, relying on the above explanation and analysis of the provision
also, several legal interpretations and explanation needs to be made ie,:
1.

Whether

the

definition

of

the

word

consent

under

section375(g) and (f) needs to be legally explained to tailor to

different situations in rape cases;
2.

Whether the limit age of 16 under section 375(g) should be

reviewed and a lower age of maturity should be considered in
order to meet the modern lifestyle; and

3.

Whether section 375(g) and (f) needs reform.

An in-depth research and analysis should be made based on the above

questions to allow our Penal Code to give a fairer provision towards
statutory rape cases.
Punishment for rape

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In considering any amendment for statutory rape provisions, the law

should always look at the severity of its punishment compared to the
ordinary rape cases. The punishment for statutory rape cases is different.
Section 376 provides a heavier punishment for underaged rape. The
provision states that:
(1)

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.
(2)

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 t o

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

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than five years and not more than thirty years and shall also
be liable to whipping.
(3)

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.
(4)

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.
Hence, according to the provision, a heavy punishment for rape ie,
imprisonment for a term which may extend to twenty years will be
imposed upon a rapist. A heavier punishment however, is imposed if the
rape involves an underaged woman ie, the term may extend to thirty
years.
Our legal system does give serious consideration to reduce the crime of
underaged rape cases. However, the system can be misused by certain
people. The life style nowadays should be considered where women reach
their age of puberty even before the age of 10. In relation to consent by a
minor, there was a suggestion to allow it based on the reason that the
patient who is 16 years of age is capable of understanding the
consequence of his actions. [13] Although the suggestion applies to a

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patient in giving consent for medical treatment, the basis of such

allowance is similar ie, the ability to understand and the intellectual
capacity of such person. This shows that women below the age of 16 may
understand the effect of consent in a sexual relationship. It further means
that, they may understand the consequences of such a relationship. As
such, the acceptability of the consent may differ from case to case
depending on this intellectual capacity.
In spite of heavy punishment, including the death sentence in some
countries, rape still remains a serious problem in many parts of the world.
For rape, being a criminal offence, proof beyond reasonable doubt is
necessary before establishing guilt. In many instances the offence is
committed in the absence of any eyewitness. Owing to various reasons
other corroborative evidence is either lacking or absent. As a result, in
many rape trials the court is in a dilemma. The court is often caught
between the testimony of the alleged victim and the suspect. The doctor
may play an important role in providing the necessary corroborative,
scientific evidence to prove a case of rape. The doctors opinion is
expected to be independent and scientific and therefore it not only
corroborates the crime but may also help an innocent person who has
been wrongly implicated.
In Malaysia, however, clinical forensic medicine is not included in the
undergraduate curriculum and postgraduate courses are only available in
forensic pathology. There are no trained full-time forensic physicians to
undertake forensic clinical examinations. The respective clinicians in
larger institutions and non-specialist medical officers in smaller hospitals
undertake clinical forensic examinations. The majority of doctors who
undertake such examinations have no previous training in such

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procedures. Therefore it is not surprising that, in many instances, the

quality of clinical forensic examinations show many shortcomings. [14]
Conclusion
After a long legal and social discussion and analysis of the provision s in
section 375(f) and (g), the author would like to submit that the provision
needs further research and reform on the issue of consent. The court of
law should have another thought on the definition of consent and the age
limit that can be considered to be capable of giving consent. The
interpretation and the circumstances stated under s. 375(f) should be
clearly set out in order to have efficient enforcement. It is also to ensure
that the provision will not be misused by people for their own interest s.
The final decision as to whether there is a rape or not, is a matter for the
court to decide. The doctor at no stage should refer to rape. His
responsibility is to document the injuries, the state of the hymen, vagina
etc, and to determine whether there was any evidence of sexual
intercourse. Besides, he will have to comment on other related medical
matters such as pregnancy, venereal diseases, etc, Evidence of sexual
intercourse certainly does not mean that rape had taken place. On the
other hand, a total negative medical finding does not rule out rape. The
doctors role is to provide independent, scientific, corroborative evidence
whenever possible that may support various claims. It should be borne in
mind that the medical evidence is only a part of the overall investigation
and is useful to corroborate other non-medical evidences.
__________________________________________________________ __

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*Senior Lecturer, School of Law, College of Law, Government and International

Studies Universiti Utara Malaysia, Kedah Darul Aman. ( chet1048@uum.edu.my)
**Senior Lecturer, School of Law, College of Law, Governm ent and International
Studies Universiti Utara Malaysia, Kedah Darul Aman. (lella@uum.edu.my)
Endnotes:
[1]

[2012] 5 MLRH 82

[2]

Act 574

[3]

Wayne R. LaFave Professor of Law, University of Illinois, Rape-Overview; Act

and Mental State,, Substantive Criminal Law 752-756 (3 rd ed. 2000) p23.
[4]

Nadesan K., Management of Rape Survivors. Ceylon Med J 1999; 44(3): 109-13.

[5]

Nadesan and Omar: 2002, Rape-the Malaysian scenario, Malaysian J Path01

2002; 24(1): 9-14.

[6]

Stanley Yeo, Neil Morgan, Chan Wing Cheong. Criminal law in Malaysia and

Singapore. 2 nd edition. Singapore: Lexisnexis.

[7]

[1990] 1 MLJ 225 at 226

[8]

King, Rebecca, Frances, (1998) Rape in England 1660 -1800: Trials, narratives

and the question of consent, Durham theses, Durham University. Available at

Durham E-Theses Online: hppt://etheses.dur.ac.uk/4844/
[9]

http://www.utusan.com.my/utusan/info.asp/y=2011&dt=0315&pub=Utusan_Malaysi
a&sec=Parlimen&pg=pa_pa_07.htm#ixzz2ZZ5zQSw8.
[10]

PM Datin Noor Azizah Mohd Awal, from Law Faculty University Kebangsaan

Malaysia and Chair of the Muslim Women Consultation Council Malaysia, Yadim,
Jenayah Rogol Kanak-Kanak, Utusan Malaysia Wednesday 31 July 2013 pg 11.
[11]

[2012] 5 MLRH 82

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[12]

See also case Nelson s/o Gnanaregasan v. Public Prosecutor [2009] 6 MLJ 622

[13]

Tengku Noor Azira Tengku Zainuddin and Anisah Che Ngah, Child Patient and

Consent to Medical Treatment According to the Law in Malaysia. (2011) 15 Jurnal

Undang-Undang dan Masyarakat (JJUM) 75-86.
http://www.ukm.my/juum/JUUM%202011/Pesakit%20KanakKanak%20dan%20Keizinan%20kepada%20Rawatan%20Perubatan.pdf
[14]

Nadesan and Omar: 2002, Rape-the Malaysian scenario, Malaysian J Patho01

2002; 24(1): 9-14.