The amendments to the Penal Code and the Criminal Procedure Code proposed by the Parliamentary Select Committee are currently being considered in the Parliament.
The vast majority of the proposed changes are positive improvements over the current position. The Bar Council commends and congratulates the Select Committee for introducing these progressive changes.
An area of change concerns the widening of the definition of “rape” in Sections 375 & 376 of the Penal Code, with the objective of addressing issues of custodial rape, offences committed by “spiritual healers”, as well as those committed by persons in authority or persons holding positions superior to the victims.
It is in this regard that the Bar Council has expressed reservation and urged caution, in relation to the current proposals.
The Bar Council agrees that (among other things) issues concerning custodial rape and offences committed by persons who abuse their superior positions of authority must be adequately addressed. However, the present wording of the proposed provision, in the Council’s view, is unsatisfactory, for the reasons that follow.
The proposed new sub-section 375(f) deals with new categories of rape, where sexual intercourse had with the consent of a woman will become rape if: (a) her consent was obtained by the offender “using his position of authority over her”, or (b) her consent was obtained “because of professional relationship”, or (c) her consent was obtained because of “other relationship of trust in relation to her”.
The Bar Council appreciates the objective behind this new proposal, in that it is necessary to nab offenders who abused their positions or trust in circumstances that would vitiate the consent and therefore amount to rape. However, in the same breath, the new provision as it is presently drafted will be capable of “catching” situations in which consent should not be treated as vitiated. This unintentional effect is due to its general and broad wording. For example, consent given “because of professional relationship” will have such a wide ambit; and making the “use of position” (rather than abuse of position) an element of the crime of rape causes concern.
It is laudable and important to enact progressive laws to deal with social ills. At the same time, it is equally important not to cast the net so wide or sweepingly such that persons who should not be assigned the same type or degree of culpability might be “caught” by such laws. This is particularly so, where it is a matter of amending the wording so that unintended effects will not result.
The Bar Council suggests that sub-section 375(f) be re-worded in the following manner:
“375. A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:
(f) with her consent, when the consent was obtained by duress, coercion, threat, inducement or promise made by an accused:
(i) who was a public servant having authority or control over her, or who was responsible for her protection, safety, welfare or wellbeing; or
(ii) who was a public servant, officer, agent, employee, or person who works at any place of detention, custody or training, or who was responsible for her protection, safety, welfare or wellbeing at such place; or
(iii) on whom she relied for religious or spiritual guidance, teaching or practice; or for cure or treatment of herself or any member of her family; or
(iv) who was in a position of power, authority or trust in relation to her, and who abused his position to obtain such consent; provided that if such consent was obtained by threat, inducement or promise, it shall be a defence if the circumstances were such that there was reasonable opportunity for her to have refused consent.”
Similar amendments are applicable to sub-section 376(2)(f).
2012 Hotel Corporate Rates Attending seminars? Going for a holiday? Click on the link above to check out the list of hotel corporate rates for Members of the Bar, which is updated regularly.
Talk on Intellectual Property Law (10 Feb 2012) Organised by the Selangor Bar Committee, the talk on “Intellectual Property Law” will take place at 5:00 pm, at the Selangor Bar Committee Auditorium, on 10 Feb 2012 (Friday). The talk will feature Bahari Yeow Tien Hong. Click on the link above for more details.
Seminar on the Fundamentals of Bankruptcy Proceedings (21 Feb 2012) Organised by the Kuala Lumpur Bar Professional Development Committee, the seminar on “The Fundamentals of Bankruptcy Proceedings”, featuring Sanjeev Kumar Rasiah, will take place at 3:00 pm, at the Kuala Lumpur Bar Auditorium, on 21 Feb 2012 (Tuesday). Click on the link above for more details.
Seminar on the Fundamentals of Conveyancing (24 Feb 2012) Organised by the Kuala Lumpur Bar Professional Development Committee, this seminar featuring Jeremiah R Gurusamy will take place at 3:00 pm, at the Kuala Lumpur Bar Auditorium, on 24 Feb 2012 (Friday). Click on the link above for more details.
Mediation Skills Training Course (29 Feb to 4 Mar 2012) Organised by Bar Council, the Mediation Skills Training Course will take place at 8:30 am to 5:30 pm, at Raja Aziz Addruse Auditorium, Bar Council, on 29 Feb to 4 Mar 2012 (Wednesday to Sunday). Deadline for registration and payment is 17 Feb 2012 (Friday). Click on the link above for more details.
Talk on “Land Fraud: An Australian Perspective” (13 Mar 2012) Organised by IGIL, GSGSG and UUM COLGIS, this free talk featuring Quintin George Rozario of Delta Law, Brisbane, Australia, will take place at 9:00 am, at Dewan Seminar A, Pusat Konvensyen, Universiti Utara Malaysia, Kedah, on 13 Mar 2012 (Tuesday). To RSVP, contact Mr Abutt (04-928 4397; abutt@uum.edu.my).
News/Articles/Notices 
The amendments to the Penal Code and the Criminal Procedure Code proposed by the Parliamentary Select Committee are currently being considered in the Parliament.
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