CHAPTER 1 : INTRODUCTION

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1.1 Research Topic
Redefining rape: A review on Section 375 of the Penal Code

1.2 Literature Review
One of the issues being raised with regard to the rape laws these days is that marital
rape is remained legal despite many non-governmental organization such as the Anti-
Rape Task Force bringing up the issue of criminalizing marital rape by striking off such
provision that is stipulated expressly in the Penal Code. In this matter, Dr Jal Zabdi
Mohd Yusoff
1
has expressed his thoughts in regarding rape within a marriage in his
book Keganasan Rumah Tangga. With comparisons being made with other common
law jurisdictions, the author opined that with regards to the case of R v R
2
, the law has
changed in its jurisdiction that is be it in a marriage or not, it's still rape regardless of
the identity of the victim and perpetrator. The husband will still subject to the same law
if he ever rapes his wife. The author further narrowed down into Malaysian context.
Under Islamic Law, a wife cannot reject husband's request in having sexual intercourse
when she's in a healthy state
3
. The author further pointed out that Penal Code also
stated expressly that sexual intercourse that took place between husband and wife is not
rape, which simply means that marital rape remained legal in Malaysia.




1
Jal Zabdi Mohd. Yusoff. Keganasan Rumah Tangga (2nd ed.). (2010). Kuala Lumpur: University Malaya Press.
2
[1992] 1 AC 599
3
Sahih al-Bukhary, 1987, Vol VII, h.93
Jika seseorang wanita menolak permintaan suaminya untuk melakukan hubungan kelamin tanpa alasan yang
munasabah maka dia adalah berdosa.
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Halsburys Laws of Malaysia
4
published by the Malayan Law Journal has always
been a source of reference for any point of law. For the purpose of this paper, volume
11 that discusses criminal law will be referred to. Under Chapter Three Offences
Affecting the Human Body, Part Six Sexual Offences, the topic of rape is discussed
briefly.

Sex without consent: Young people in developing countries
5
by Shireen J. Jejeebhoy,
Iqbal Shah and Shyam Thapa presents a disturbing pictures of non-consensual sex in
developing countries. It shows a full range of non-consensual experiences--from
unwanted touch to forced penetrative sex and gang rape and it argues for a radical
review and reform of programs designed to prevent abuse and support survivors. It's a
useful resources in supporting the recommendations that the writer of this academic
project paper provides.

Rape and The Criminal Justice System
6
is a reference that comprises of many
articles and reports written by academic workers from various countries. This piece of
work examines the criminal justice system that deals particularly in rape as well as its
consequences in the victim herself (Post Traumatic Stress Disorder). It will be useful in
giving the writer different insights in discovering new grounds in redefining the rape
law particularly S375 in the Penal Code as well as resourceful in making comparisons
between their relevant laws with our existing Malaysia law on rape.


4
Halsbury Law of Malaysia. Volume 11. Chapter 3. Malayan Law Journal Sdn Bhd: Kuala Lumpur
5
Jejeebhoy, S. J., Shah, I. H., & Thapa, S. (2005). Sex without consent: Young people in developing countries.
London: Zed Books.
6
Temkin, J. (1995). Rape and the criminal justice system. Aldershot: Dartmouth.
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Rape Law Reform: A grassroots revolution and its impact
7
concerned about the
treatment of rape as well as the flaws in traditional rape law approach as well as
providing recommendations in order to improve the situation. Several countries' rape
law reformation has been examined and evaluated in this reference book. There're also
statistics on the outcome of rape cases before and after the reforms were implemented
as well. This reference will be useful in writing this academic paper as it provides
several countries' law reform on the law of rape as well as its effect after the reform.
The idea of such reform can be examined on its applicability on our present Malaysia
law on rape as well.

1.3 Research Objective
This academic writing paper seeks to widen the definition of the rape as stipulated
under the Section 375 of the Penal Code on the ground that there have been many rape
cases that took place in every part of our world. Nowadays with the advancement of
technology, there's no longer a definite gender on human itself. Nowadays, there are
various types of sexual engagement that exist in the society which does not revolve
only between man and woman as what is stipulated under the Penal Code itself. The
Penal Code itself also stipulated a rigid approach in determining the occurrence of rape.
In Malaysia, only man can be a rapist and woman can only be the victim of rape. In
situations where a transgender being raped, so what law is available to him/her when
his/her identity is in extreme doubt? There are many different sexual offences that take
place in our society, however, most of the time the victims remained in a helpless state
despite there are laws that govern such inhumane act, due to its flaws and rigidity on
the identity of the victim and perpetrator. Hence, there's a need to redefine the term

7
Spohn, C., & Horney, J. (1992). Rape Law Reform: A Grassroots Revolution And Its Impact. New York: Plenum
Press.
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'rape' in order to conform to the current social needs. The objectives that lies within
are :-

1.3.1. To understand the nature and application of the existing rape laws and its
amendments, particularly Section 375 of the Penal Code.
1.3.2. To study the application of rape laws in Malaysia as well as its conformity to
the needs of the current society in Malaysia.
1.3.3. To compare the differences of rape laws in various countries with the rape
laws (in particularly Section 375) in Malaysia.
1.3.4. To determine whether there is a need to amend Section 375 of Penal Code in
light of different types of sexual offences being existed in the society.
1.3.5. To make suggestions and discussion on the expansion of the definition of 'rape'
under Section 375 of the Penal Code after examining the views of relevant
experts and parties.

1.4 Research Question
In relation to the research objective as stated above, the author attempts to answer the
following questions :-
1.4.1. To what extent the rape laws, particularly S375 has conformed to the needs of
the society?
1.4.2. What is the intention of the lawmakers in making the rape laws and
amendments this way?
1.4.3. Are the rape laws able to protect all the citizens in Malaysia regardless of their
genders?
1.4.4. What are the loopholes that can be found underneath the rape laws itself?
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1.4.5. What is the challenges and brick walls that comes with the recommendation
given by the author in the subsequent topic?
1.5 Research Methodology
In this research project, the methodologies that would be adopted are as follows :-

Library research will be carried out at the Tan Sri Professor Ahmad Ibrahim Law
Library and Zaba Memorial Library that involves the research on materials in light of
this topic. Library research will be carried out in order to understand the current
standing of the Malaysian law with regards to the definition and occurrence of rape.
Reference books, statutes and hard copy journals which are obtainable will be made as
reference in writing this academic project paper as well.

Since it is an academic project paper that focuses on the reformation of the rape law
itself, newspapers and newsletter that discuss these particular areas will be useful in
analyzing the response of the public towards the present rape laws we have in Malaysia.

A comparative study will be made in regarding the difference in definition of rape laws
in Malaysia and other jurisdictions. Hence, researches from reliable internet sources
will be adopted in order to obtain other international materials such as case laws,
current legislations and commentaries on the topic from reliable sources such as online
databases, government and non-governmental organization websites.

Interviews might also be conducted with the relevant authorities such as non-
governmental organizations, practicing lawyers as well as inspectors from police station
in order to understand the reasoning behind the making of such laws that were having
in Malaysia. Interviews enabled the writer to have face-to-face question-and-answer
sessions with professionals where questions will be formulated prior to the interview
and all information gathered was incorporated into the content of this paper.
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1.6 Scope and Limitations of Research
This research is said to be a socio-legal study as it begins its focus on the critical
analysis of the historical background of the rape law and the difficulties to reform it.
The scope of study will be limited to the Malaysian landscape. Only legislations from
countries with similar laws to Malaysia with regards to the Penal Code will be
considered. Not all legislations from foreign jurisdictions can be used as authority
because foreign countries may hold different values in the society about sex and rape
which leads to the enactment of different laws.

The limitation in this research covers situation such as the limited reference materials
from local authors, unknown procedure to conduct interviews with relevant person, and
absence of cases with regards to sexual offences that does not fall within the definition
of rape as stipulated under S375 of the Penal Code. Examining a topic that touches on
rape would often limit the possible categories of people that can be interviewed as well.
Most rape victims may be ashamed, mostly due to the social stigma attached to rape
cases though there might be few who do not wish to speak on their experience simply
because it would be a traumatizing one. Another limitation perhaps would be the lack
of local published academic paper because of the nature of this project paper.


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1.7 Proposed Chapter
Chapter 1
Introduction

Chapter 2
Jurisprudence of the Rape Laws in Other Countries
Ancient laws on rape
Rape laws in England
Rape laws in United States
Rape laws in India

Chapter 3
Law & Cases on Rape in Malaysia
S375 of Penal Code
o Amendments on S375
o Proviso (a) (g)
o Explanations
o Exceptions
Cases

Chapter 4
Possible Revision of Rape Laws in Malaysia
Include penetration of body parts into the vagina within the definition of
rape
Criminalizing marital rape
Any person can be perpetrator and victim
Increasing the age of statutory rape victim

Chapter 5
Challenges in Reforming the Present Rape Laws
Multiracialism in Malaysia
Abuse of law

Chapter 6
Conclusion and Recommendation