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Definition of rape under Malaysian law

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.
Punishment for 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.

Forms of sexual assault covered under Malaysian law

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:

LawOffencePunishment
Penal Code, Section 354Assault or use of criminal force to a person with intent to outrage modestyMaximum 10 years imprisonment, or with fine and/or whipping
Penal Code, Section 375AHusband causing hurt in order to have sexual intercourseMaximum 5 years imprisonment
Penal Code, Section 376BPunishment for incest10 - 30 years imprisonment and whipping
Penal Code, Section 377CCommitting carnal intercourse against the order of nature without consent, etc.5 - 20 years imprisonment and whipping
Penal Code, Section 377CASexual connection by object5 - 30 years imprisonment and whipping
Penal Code, Section 377DOutrages on decencyMaximum 2 years imprisonment
Penal Code, Section 377EInciting a child to an act of gross indecency3 - 15 years imprisonment and whipping
Child Act, Section 31Sexually abusing a child or causing or permitting the child to be abusedMaximum 20 years imprisonment or maximum RM 50,000 fine, or both
Sexual Offences Against Children Act, Section 11Sexually communicating with a childMaximum 3 years imprisonment
Sexual Offences Against Children Act, Section 12Child groomingMaximum 5 years imprisonment and whipping
Sexual Offences Against Children Act, Section 13Meeting following child groomingMaximum 10 years imprisonment and whipping
Sexual Offences Against Children Act, Section 14Physical sexual assault on a childMaximum 20 years imprisonment and whipping
Sexual Offences Against Children Act, Section 15Non-physical sexual assault on a childMaximum 10 years imprisonment or maximum RM 20,000 fine, or both
Getting justice for rape and sexual assault

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>


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