According to the Malaysian Penal Code:
- Rape is defined as sexual intercourse with a woman against her will or without her consent.
- Sexual intercourse with a woman is also rape when:
- her consent is obtained by putting her in fear of death or hurt;
- when she unable to understand the nature and consequences of what she is consenting to;
- or when her consent is obtained by using a position of authority, a professional relationship, or other relationship of trust.
- Sexual intercourse with a girl under 16 years of age, with or without her consent, is also rape.
According to the Penal Code Section 376, those who committed rape will be punished with imprisonment for a term up to 20 years with whipping.
Besides that, punishment with imprisonment for a term up between 10 to 30 years along with whipping can be imposed on those who committed rape under these circumstances:
- In addition to the offence, causes hurt to the woman or another person
- In addition to the offence, puts the woman in fear of death or hurt to herself or any other person
- Commit rape in the presence of another person
- Rape a girl under 16 years of age without her consent
- Rape a girl under 12 years of age, with or without her consent (statutory rape)
- Commit rape with a woman’s consent with the use of authority over her due to a relationship of trust or a professional relationship
- Rape a pregnant woman
- The woman becomes insane due to rape
- When the rapist is aware of his condition of having HIV/AIDS or any sexually transmissible disease
- The woman commits suicide due to rape
- When the rapist is aware of the woman’s mental disability, emotional disorder, or physical handicap
Punishment of imprisonment for a term between 8 to 30 years with whipping not less than 10 strokes can be imposed upon the rapist who committed the offence under the circumstances that he is not permitted to marry the woman under the law, religion or custom.
Lastly, capital punishment or a punishment of imprisonment for a term between 15 to 30 years with whipping of no less than 10 strokes can be imposed on the rapist who causes the death of the woman.
Malaysian law doesn’t specifically define sexual assault, however, there are various laws that cover different forms of sexual assault. Below are some of them:
| Law | Offence | Punishment |
|---|---|---|
| Penal Code, Section 354 | Assault or use of criminal force to a person with intent to outrage modesty | Maximum 10 years imprisonment, or with fine and/or whipping |
| Penal Code, Section 375A | Husband causing hurt in order to have sexual intercourse | Maximum 5 years imprisonment |
| Penal Code, Section 376B | Punishment for incest | 10 - 30 years imprisonment and whipping |
| Penal Code, Section 377C | Committing carnal intercourse against the order of nature without consent, etc. | 5 - 20 years imprisonment and whipping |
| Penal Code, Section 377CA | Sexual connection by object | 5 - 30 years imprisonment and whipping |
| Penal Code, Section 377D | Outrages on decency | Maximum 2 years imprisonment |
| Penal Code, Section 377E | Inciting a child to an act of gross indecency | 3 - 15 years imprisonment and whipping |
| Child Act, Section 31 | Sexually abusing a child or causing or permitting the child to be abused | Maximum 20 years imprisonment or maximum RM 50,000 fine, or both |
| Sexual Offences Against Children Act, Section 11 | Sexually communicating with a child | Maximum 3 years imprisonment |
| Sexual Offences Against Children Act, Section 12 | Child grooming | Maximum 5 years imprisonment and whipping |
| Sexual Offences Against Children Act, Section 13 | Meeting following child grooming | Maximum 10 years imprisonment and whipping |
| Sexual Offences Against Children Act, Section 14 | Physical sexual assault on a child | Maximum 20 years imprisonment and whipping |
| Sexual Offences Against Children Act, Section 15 | Non-physical sexual assault on a child | Maximum 10 years imprisonment or maximum RM 20,000 fine, or both |
You can make a police report in Bahasa Malaysia or English, either by typing it yourself at the police station or by orally dictating it to the police officer. You can also draft your report in advance.
In your police report, write down the details of the assault, such as what happened, when it happened (date and estimated time), where it happened, and who was involved. Remember to get a copy of the police report.
The Investigation Officer (IO) will open an investigation based on the police report you have made. The IO may interview witnesses, suspects, and may also ask you to give a further statement at the police station. Depending on the evidence, the IO may bring the case to the Deputy Public Prosecutor (DPP).
The DPP will determine whether there is a case to charge against the perpetrator.
If there is insufficient evidence, the case will be closed and classified as ‘No Further Action’ (NFA). Then, there will be no charge.
If the Deputy Public Prosecutor (DPP) decides that there is sufficient evidence, the DPP will charge the suspect. The charge will be read in court and the suspect can either plead guilty or not guilty.
If the suspect pleads guilty, the case will proceed to sentencing. However, if the suspect pleads ‘not guilty’, a full trial begins.
The trial process will begin with the prosecution stage, in which the Deputy Public Prosecutor (DPP) calls witnesses to give their testimony. Following that, the defence lawyer (who is the person defending the accused) will cross-examine the witness; this means, the defence lawyer will ask another set of questions directed at the witness. The DPP then re-examines the witness (by asking questions) in order to explain any doubtful or contradictory answer given by the witness during cross-examination.
If the judge decides that the evidence is strong enough to show that the accused has committed the crime (i.e. there is a prima facie case), the defence lawyer will begin the defence. At this stage, the defence lawyer will call witnesses to give evidence suggesting that the crime did not happen. The same three-step cross-examination process occurs, except this time, the defence lawyer begins the cross-examination, followed by the DPP, and then the defence lawyer again.
The judge will then decide whether the accused is guilty or not guilty. If guilty, the judge will sentence the accused.
* This is a simplified version of the court trial process. For the full process, refer to http://wccpenang.org/wccnew/wp-content/uploads/2014/09/Surviving-Court-booklet_English.pdf
Reference:
Women’s Centre for Change (WCC Penang), ‘Surviving Court’ <http://wccpenang.org/wccnew/wp-content/uploads/2014/09/Surviving-Court-booklet_English.pdf>
