Professional Documents
Culture Documents
Address for correspondence and reprint requests: Professor K Nadesan, Department of Pathology. Faculty of Medicine, University of Malaya, 50603
Kuala Lumpur, Malaysia.
Malaysian J Pathol June 2002
3 led the court to look for the presence of some important that the doctor bears the above facts in
form of physical violence on the victim to mind. In the absence of any injuries, the doctor
corroborate the allegation of rape. The sub- who examines the victim should seek explanation
section "against her will" is generally established as to why there was no struggle or what prevented
by the presence of physical violence. However, the victim from struggling. It is alleged that in
this belief is presently considered as unfair and the absence of physical injuries the law
law reforms in many countries have changed enforcement agencies and doctors are reluctant
their rape laws to overcome this attitude. At to accept the statement of the victim. The doctor
present in most countries the main issue should show great care in obtaining a detail
pertaining to rape is the question of valid consent history from the victim. He should have skill
for intercourse. and experience in handling such a victim and in
The Malaysian law on rape still retains the eliciting a good history.
sub-section "against her will" in its legal
definition under section 375 of the penal code.' CONSENT FOR SEXUAL INTERCOURSE
The above sub-section "against her will" usually
In many jurisdictions, consent for sexual
places the burden on the rape victim to show
intercourse becomes the sole issue in deciding
evidence of physical violence that could be
whether rape has been committed. Consent when
considered as an act against her will. As already
given should be free, voluntary and informed. A
mentioned, the absence of injuries does not
person who gives consent should understand the
necessarily mean that the woman was a willing
exact purpose for which the consent is given.
partner. Owing to many reasons, a victim may
She should be of consenting age and in a mental
not resist the rapist and in that event the chances
state and of mental development to understand
of a physical attack by the rapist is reduced.
the implications. There should not be any force,
When v!ctims are taken by surprise they may be
duress or fraud while obtaining consent. The
too scared to resist. More importantly, in many
responsibility also lies with the person who
instances the rapist is an immediate family
seeks consent to be satisfied that the woman is
member, a close relative or a friend. Several
consenting freely after having understood the
cases are actually incest and many more are
implications. The English Law on Rape is very
statutory rapes where the victims are under the
clear on this issue. It says that at a trial for a rape
age of sixteen years. According to national
offence the jury has to consider whether the man
statistics for the year 1997, 1998 and 1999, 56,
believed that the woman was consenting to
54 and 68 percent respectively of reported victims
sexual intercourse. The presence or absence of
of incest were under the age of sixteen years.
reasonable grounds for such a belief is a matter
Naturally these are considered as statutory rape.
to which the jury is to have regard, in conjunction
During the same period referred to above almost
with any other relevant matters, in considering
fifty percent of reported rape victims were under
whether he so b e l i e ~ e d .In~ many countries the
the age of eighteen. Social and domestic
rape laws have been amended whereby the
pressures, particularly in this part of the world,
defendant has to prove that there was consent
prevent these unfortunate victims from resisting
for sexual intercourse. The above Evidence Act
or lodging a complaint with the law enforcement.
shifts the burden of proof onto the accused to
Therefore under such situations it is very
prove innocence. According to earlier laws the
unrealistic to expect a woman to show evidence
prosecution has to establish lack of consent on
of resistance or any other physical violence. In
the part of the alleged victim. In Malaysia the
Malaysia, it is still arule of law that the testimony
position still remains unchanged and the
of the complainant in a sexual offence case need
prosecution has to establish that the woman did
to be corroborated by an independent witness
not consent.
such as medical evidence or any other evidence.'
For a girl the consenting age for sexual
The medical examination of the victim forms
intercourse is sixteen years. Therefore, sexual
an important part of the investigation. The
intercourse with or without consent with a girl
injuries that are suggestive of resistance offered
who is under the age of sixteen years is
by the victim or an attack by the rapist will
considered as "Statutory Rape"'. In Malaysia a
provide strong corroborative evidence. Such a
person under the age of eighteen years is
finding will be of immense help to the court in
considered a child. Therefore a person under the
arriving at a judgement. But as already explained,
age of eighteen generally cannot give consent
in many instances there are no injuries present to
for medical treatment. However, a girl under the
support a struggle or a physical assault. It is
RAPE - THE MALAYSIAN SCENARIO
age of eighteen but over the age of sixteen can intercourse for the offence of rape. Even the tip
give valid consent for sexual intercourse. A of the penis between the labia has been accepted
similar situation prevails in other countries as as intercourse in law. If penetration cannot be
well. In Malaysia, prior to the Penal Code satisfactorily proved the defendant may be
(Amendment) Bill of 1986 the age of consent convicted of attempted rape and if intent is not
for sexual intercourse was fourteen years. At the proved he may be convicted of indecent
University Malaya Medical Centre (UMMC), a s s a ~ l t . ~ It
, ~ is
, ~ not necessary to prove the
the Paediatric Department handles rape victims completion of sexual intercourse by orgasm or
who are under the age of eighteen years whereas ejaculation of semen.
victims over the age 18 years are handled by the In most countries, including Malaysia, the
Gynaecology department. However, the rape laws are related to unlawful sexual
gynaecologist conducts the genital examination intercourse between a man and a woman. The
in all cases. The Child Protection Committee French law, however, is a striking exception to
(CPC) and the Intervention of Sexual Assault this general rule. French law defines rape as any
and Molestation Team (INSAN) are two UMMC act of sexual penetration of any nature committed
based organisations that oversee the management on another person by violence, constraint, threat
of child and adult sexual assault victims. or surprise.%ccording to French law, rape does
not concern only penile penetration of the vagina
MARITAL RAPE or an offence involving only a man and a woman.
The 1997 Anti-Rape Law of Philippines is also
Traditionally it is considered that it is not legally similar. It included insertion of the penis into
possible for a husband to rape his wife unless
another person's mouth or anal orifice, or the
the "wife" is below the stipulated legal age and
insertion of any instrument or object into the
in Malaysia it is 13 years. It was believed that
genital or anal orifice of another person without
consent to marriage is also consent to sexual
consent as rape. At present many countries have
intercourse and as long as the marriage is in
replaced the crime of rape and other traditional
existence this right to intercourse cannot be sex crimes with a series of gender neutral and
revoked. Women's groups have argued that by graded offences with appropriate punishments.
giving such immunity, the marriage license can
In most countries the term "sexual intercourse"
indeed be called a "license to rape"'. It is has been replaced by "sexual penetration". The
significant to note that marital rape is not
term "sexual penetration" is defined to include
recognised in Malaysian Law. Being a Muslim sexual intercourse, cunnilingus, fellatio, anal
country, regard may have been given to the
intercourse or any other intrusions involving
Quran which says that it is a wife's duty to
any part of a person's body or of any object into
submit to the husband's sexual needs, and
the genital or anal opening of another person's
therefore there is no such thing as marital rape.
body.
On the other hand, the Quran also emphasises
that men should at all times respect women and
EXAMINATION OF THE VICTIM
value their freedom. The only exception in the
Malaysian penal code is when the wife is under General considerations
the age of thirteen years and during the eddah In most instances the police produces the victim.
period, which is the period when the wife has to Even so, a valid consent has to be obtained from
wait for 3 months before divorce is final, to the victim prior to medical examination. If the
determine if she is pregnant.' In a 1991 case, victim is under the age of eighteen years, consent
Regina v R (1993 1 CLJ), the English court held has to be obtained from a parent or guardian. In
that there was no longer a rule of law that a wife Malaysia, many hospitals refuse to examine a
was deemed to have consented irrevocably to victim unless a police report has been made.
sexual intercourse with the husband, therefore a However, at the University Malaya Medical
husband could be convicted of rape or attempted Centre, even in the absence of a police report,
rape of his wife where she had withdrawn consent the victims are examined. However, the victims
to sexual intercourse. are cautioned and the various specimens collected
from the victims are preserved for a prolonged
INTERCOURSE IN LAW period of time in the event a victim decides to
make a delayed report. It is true that in the
In Malaysia vaginal penetration by the penis, absence of an initial report to the police there are
however slight, is sufficient to constitute sexual logistical difficulties encountered by the doctors.
Malaysian J Pathol June 2002
carefully examined, because this may be injured investigation and is useful to corroborate other
during intercourse. non-medical evidences.
A unique practice in Malaysia relates to the
request by the police for suspects to be examined TEACHING OF FORENSIC MEDICINE
fo; potency. 1n many othet countries, the need
In Malaysia, there is insufficient emphasis in the
for such an examination usually arises when the
teaching of forensic medicine. In most medical
suspect claims impotence as a defense. Police
schools, a few lectures are delivered to
frequently link potency with the so-called
undergraduates and that too is in forensic
"masturbation test" and suspects are routinely
pathology rather than forensic medicine. In
produced before doctors for this test, believing
most medical schools even though the forensic
that suspects who succeed in ejaculation can be
section is referred to as a forensic medicine unit,
considered potent. This practice is at present
in fact it is essentially a forensic pathology unit
being severely discouraged. The doctors at the
and it is nearly always part of the department of
UMMC Accident and Emergency Department
pathology. Whatever little practical training
are advised to refrain from the so-called
medical undergraduates receive is also in forensic
"masturbation test" to establish potency.
pathology. There is minimal or no training in
A detailed investigation for potency usually
clinical forensic medicine. There is no mandatory
becomes necessary when the suspect claims that
examination in either forensic pathology or
he is impotent. Initial examination will reveal
clinical forensic medicine in the undergraduate
his incapacity if there are obvious anatomical
curriculum. However, when the undergraduates
abnormality, inherited genetic disorders or
qualify as doctors they are expected to undertake
definite illnesses that may affect potency. Test
full medico-legal responsibilities such as
for impotency involves a physical examination,
conducting medico-legal autopsies and carrying
thorough clinical examination and relevant
out clinical examinations on victims who are
laboratory investigations. The majority of male
sexually or physically assaulted and provide
impotence, particularly in young men, is due to
reports to courts or to give oral evidence. The
psychological causes. Hence a clinical
present situation appears quite paradoxical.
examination for male impotency invariably
Postgraduate training is available only in forensic
involves a psychiatric assessment. There is
pathology through a four-year full time Master
certainly no place for masturbation.
of Pathology programme. There is no established
post for forensic physician in the Ministry of
FINAL REPORT
Health or in the Universities. At present
The entire exercise is to finally submit a report respective specialists in larger hospitals and
to the court and to give oral evidence if necessary. non-specialist medical officers in smaller
The details have to be carefully and accurately hospitals undertake forensic clinical
documented in a chronological order. Nothing examinations. None of them have any specialised
should be spoken from memory. No report or training in the subject and hence the quality of
oral evidence will be acceptable in a court of law their examination in most instances may have
unless it is based on documented materials. The various shortcomings.
final decision as to whether it is a rape or not, is
a matter for the court to decide. The doctor at no REFERENCES
stage should refer to rape. His responsibility is 1. Section 375 on Rape. Penal Code of Malaysia.
to document the injuries, the state of the hymen, 2. Nadesan K. Management of rape survivors. Ceylon
vagina etc. and to determine whether there was Med J 1999; 44(3): 109-13.
any evidence of sexual intercourse. Besides, he 3. Apardv Sathial Vs Public Prosecutor (1957) 2 Curr
will have to comment on other related medical Leg J, 391.
matters such as pregnancy, venereal diseases, 4. The Sexual Offences (Amendment) Act 1976 of
England, Chapter 82, l(2).
etc. Evidence of sexual intercourse certainly
5. Proceedings of the All Women's Action Society's
does not mean that rape had taken place. On the (AWAM) Rape Research Launch. 7th December
other hand totally negative medical findings 1999, Kuala Lumpur.
does not rule out rape. The doctor's role is to 6. Chapter XXII, Section 490, Attempts to commit
provide independent, scientific, corroborative Offences, Penal Code of Sri Lanka.
evidence whenever possible that may support 7. Chapter XXIII, Section 511, Attempts to Commit
various claims. It should be borne in mind that Offences, Penal Code of Malaysia.
8. Penal Code (Amendment) Act, No 22 of 1995.
the medical evidence is only a part of the overall
Sections 365, 365A, 365B of Unnatural Offences
Malaysian J Pathol June 2002