Kosmo, October 25 2009 (Rencana Utama) - Seorang bekas pegawai tinggi pasukan keselamatan, Marjan (bukan nama sebenar), dilepaskan daripada tuduhan merogol seorang gadis terencat akal berusia awal 20-an. Hakim menyifatkan persetubuhan dilakukan atas dasar suka sama suka. Hakim juga menyatakan bahawa si gadis rela melakukan hubungan seks dengan Marjan lantaran tidak membantah, tidak takut dan terus mengunjungi tempat yang sama selepas kali pertama tumpas kepada nafsu lelaki itu. Keputusan hakim itu disifatkan sebagai sesuatu yang luar biasa kerana tidak mengambil kira keadaan gadis yang disahkan terencat akal separa oleh pakar psikiatri dan tidak boleh memberikan kerelaan secara sah kerana dia tidak mampu untuk membezakan antara baik dan buruk.
[http://www.kosmo.com.my/kosmo/content.asp?y=2009&dt=1025&pub=Kosmo&sec=Rencana_Utama&pg=ru_05.htm] ----> Copy this link in your browser
MY ARGUMENTS
For me, this is some kind of humiliation to our justice department. The judgment given by the learned judge was highly criticized. The offence of rape is considered a threat to the public at large and it should not be taken lightly. This is not an escape goat case. It involves dignity of a person. Rape is a criminal case and in each and every case of criminal, in order to determine the liability of the accused person, two main ingredients need to be proven which is the actus reus (the guilty act of the accused person) and the mens rea (the guilty mind of he accused person). This is based on the legal maxim, "actus non facit reum nisi mens sit rea" which means, an act does not make a person legally guilty unless his mind be also guilty.
In Malaysia, rape is dealt under section 375 of the Penal Code. According to this section, a man is said to commit "rape" who has sexual intercourse with a woman under these following circumstances:
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 or without her consent, when she is
under sixteen years of age (statutory rape).
Now, basically, section 375 requires two things for the accused person to be liable under rape, namely, sexual intercourse by a man with a woman and the sexual intercourse must fall under any of the limbs mentioned above. the first limb which is limb (a) is relevant in a situation where the victim is in possession of her senses and therefore is capable of giving consent. The second limb, limb (b) is where the victim is insensible or unconscious or so imbecile that she is incapable of any rational consent. In limbs (c), (d) and (e), there is consent but it is not such a consent as would excused the accused. The consent is invalidated by the circumstances mentioned in the provision. The last limb which is limb (f) refers to a situation where the victim is below 16 and consent is irrelevant. One thing to be noted here is that, in the case of rape, consent of the victim is the fundamental principle to determine the liability of the accused person. The act of penetration comes later. This is simply because, consent must be given before the sexual intercourse either by word or by action constituting that she consented to that intercourse. As to the issue of penetration, it must be proven that the accused penis had penetrated the vagina of the victim. Full penetration is not necessary as slight penetration can constitute rape even it does not break the hymen of the victim.
There are two factors which invalidate a consent which are threat and misconception of fact. In the case of the first factor, the victim had to give consent out of fear or injury to herself or it may extend to others either. Such consent is not a valid consent and it may render the accused person to be liable for rape under section 375 (c) of the Penal code. This can be seen in the case of PP v Teo Eng Chan [1988] 1 MLJ 156. In this case what happen was that there was a gang rape. The victim was threaten with a knife point and was forced to have sexual intercourse. She had to consented because she feared that something bad might happen to her or she might be hurt by the pointing knife. All the accused persons raised the defense of mistake because they thought that the victim consented. The Court in this case held that the consent given was not valid as it was given out of fear or injury and it was given because the victim was threaten. The Court later added, how was that possible the victim had consented when her life was at stake? As to the defense of mistake raised by the accused, it was ruled out as the Court found out that all the accused person were negligence and hence liable for rape because they have acted out of proper care and caution.
The case of the second factor, which is the misconception of fact is far more interesting. The principle rule is that, consent which is given out of misconception of fact is not a valid consent. In this scenario, the victim had given consent because of the misconception of fact. For an example, A, thinking that B is the famous singer, say Faizal Tahir for an instance and B knowing of the fact that A had misunderstood him as somebody else, induced her to have sexual intercourse. B is liable for rape. In such cases, section 375 of limb (c) and (d) come into force.
Now, here comes the most interesting part which is related to the article in Kosmo as i mentioned earlier. As far as our discussion had gone through, we have discussed limb (a), (b), (c) and (d) of section 375 of the Penal Code. Well, here is the most related part of our discussion which is limb (e) of the said section. Limb (e) of 375 is an extended provision specifically deals with a situation whereby the victim was rape due to fact that she was insensible and incapable of any rational consent. Looking back to this specific provision, limb (e) and limb (b) of section 375 are somewhat similar except in limb (b), the victim never consented due to her imbecility or she was intoxicated. Limb (e) on the other hand, the victim did gave consent but she was unaware of her action since she cannot differenciate between right and wrong as well as good and bad and she is incapable of giving any rationale consent. Section 90 (b) of the Penal Code has underlined the issue of consent and clearly stated that a consent is not a valid consent if it was given by a person of unsoundness of mind or intoxicated and is unable to understand the nature and consequences of her action to which she had given the consent to. Coming back to the said article in Kosmo, the judgment given was irrational and totally ignorant to the fundamental principle in cases of rape which is consent. The victim was suffered from imbecility and she cannot make any good judgment between right and wrong as well as good and bad. She was unable to understand the nature of her act. This clearly a case under section 375 (e) of the Penal Code and the accused should be convicted for rape punishable under section 376 of the Penal Code which will carry punishments of imprisonment for a term of not less than five years and not more than twenty years and shall also be liable to whipping.
As a conclusion, this very case is clearly unfairly treated case and it has brought a humiliation to our justice system. For God sake, this is a clear cut strict liability case. There is no need to prove mens rea of the accused person but still, the judgment was given in favor of the accused person and the court held that the sexual intercourse between the accused and the victim was a consented intercourse in spite of the fact that the victim was an imbecile person according to the psychiatrist which happen to be the medical examiner in this case. Seriously, where is the justice when a person needed it the most?
[http://www.kosmo.com.my/kosmo/content.asp?y=2009&dt=1025&pub=Kosmo&sec=Rencana_Utama&pg=ru_05.htm] ----> Copy this link in your browser
MY ARGUMENTS
For me, this is some kind of humiliation to our justice department. The judgment given by the learned judge was highly criticized. The offence of rape is considered a threat to the public at large and it should not be taken lightly. This is not an escape goat case. It involves dignity of a person. Rape is a criminal case and in each and every case of criminal, in order to determine the liability of the accused person, two main ingredients need to be proven which is the actus reus (the guilty act of the accused person) and the mens rea (the guilty mind of he accused person). This is based on the legal maxim, "actus non facit reum nisi mens sit rea" which means, an act does not make a person legally guilty unless his mind be also guilty.
In Malaysia, rape is dealt under section 375 of the Penal Code. According to this section, a man is said to commit "rape" who has sexual intercourse with a woman under these following circumstances:
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 or without her consent, when she is
under sixteen years of age (statutory rape).
Now, basically, section 375 requires two things for the accused person to be liable under rape, namely, sexual intercourse by a man with a woman and the sexual intercourse must fall under any of the limbs mentioned above. the first limb which is limb (a) is relevant in a situation where the victim is in possession of her senses and therefore is capable of giving consent. The second limb, limb (b) is where the victim is insensible or unconscious or so imbecile that she is incapable of any rational consent. In limbs (c), (d) and (e), there is consent but it is not such a consent as would excused the accused. The consent is invalidated by the circumstances mentioned in the provision. The last limb which is limb (f) refers to a situation where the victim is below 16 and consent is irrelevant. One thing to be noted here is that, in the case of rape, consent of the victim is the fundamental principle to determine the liability of the accused person. The act of penetration comes later. This is simply because, consent must be given before the sexual intercourse either by word or by action constituting that she consented to that intercourse. As to the issue of penetration, it must be proven that the accused penis had penetrated the vagina of the victim. Full penetration is not necessary as slight penetration can constitute rape even it does not break the hymen of the victim.
There are two factors which invalidate a consent which are threat and misconception of fact. In the case of the first factor, the victim had to give consent out of fear or injury to herself or it may extend to others either. Such consent is not a valid consent and it may render the accused person to be liable for rape under section 375 (c) of the Penal code. This can be seen in the case of PP v Teo Eng Chan [1988] 1 MLJ 156. In this case what happen was that there was a gang rape. The victim was threaten with a knife point and was forced to have sexual intercourse. She had to consented because she feared that something bad might happen to her or she might be hurt by the pointing knife. All the accused persons raised the defense of mistake because they thought that the victim consented. The Court in this case held that the consent given was not valid as it was given out of fear or injury and it was given because the victim was threaten. The Court later added, how was that possible the victim had consented when her life was at stake? As to the defense of mistake raised by the accused, it was ruled out as the Court found out that all the accused person were negligence and hence liable for rape because they have acted out of proper care and caution.
The case of the second factor, which is the misconception of fact is far more interesting. The principle rule is that, consent which is given out of misconception of fact is not a valid consent. In this scenario, the victim had given consent because of the misconception of fact. For an example, A, thinking that B is the famous singer, say Faizal Tahir for an instance and B knowing of the fact that A had misunderstood him as somebody else, induced her to have sexual intercourse. B is liable for rape. In such cases, section 375 of limb (c) and (d) come into force.
Now, here comes the most interesting part which is related to the article in Kosmo as i mentioned earlier. As far as our discussion had gone through, we have discussed limb (a), (b), (c) and (d) of section 375 of the Penal Code. Well, here is the most related part of our discussion which is limb (e) of the said section. Limb (e) of 375 is an extended provision specifically deals with a situation whereby the victim was rape due to fact that she was insensible and incapable of any rational consent. Looking back to this specific provision, limb (e) and limb (b) of section 375 are somewhat similar except in limb (b), the victim never consented due to her imbecility or she was intoxicated. Limb (e) on the other hand, the victim did gave consent but she was unaware of her action since she cannot differenciate between right and wrong as well as good and bad and she is incapable of giving any rationale consent. Section 90 (b) of the Penal Code has underlined the issue of consent and clearly stated that a consent is not a valid consent if it was given by a person of unsoundness of mind or intoxicated and is unable to understand the nature and consequences of her action to which she had given the consent to. Coming back to the said article in Kosmo, the judgment given was irrational and totally ignorant to the fundamental principle in cases of rape which is consent. The victim was suffered from imbecility and she cannot make any good judgment between right and wrong as well as good and bad. She was unable to understand the nature of her act. This clearly a case under section 375 (e) of the Penal Code and the accused should be convicted for rape punishable under section 376 of the Penal Code which will carry punishments of imprisonment for a term of not less than five years and not more than twenty years and shall also be liable to whipping.
As a conclusion, this very case is clearly unfairly treated case and it has brought a humiliation to our justice system. For God sake, this is a clear cut strict liability case. There is no need to prove mens rea of the accused person but still, the judgment was given in favor of the accused person and the court held that the sexual intercourse between the accused and the victim was a consented intercourse in spite of the fact that the victim was an imbecile person according to the psychiatrist which happen to be the medical examiner in this case. Seriously, where is the justice when a person needed it the most?
