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Joni is a traditional medicine seller. One day, he met Cinta.

He impressed her with his


knowledge of herbs. He then informed Cinta, that if she took this herbs and have
intercourse with him immediately, she will after one week become more beautiful.
Impressed by his sales talk, she took his herbs and had sex with him. After one month,
she discovered no improvement in her beauty.
Will Joni be liable for rape?
The parties in this claim are Joni as the accussed and Cinta as the victim. The issue is
whether Joni will be liable for rape under section 375 and punishable under section
376. According to section 375, a man is said commit rape when he has sexual
intercouse with a woman under 7 circumstances. The most relevant section is section
375 (c) is that with the woman consent but her consent was obtained under a
misconception of facts and the man knows that the consent was given under such
misconception. Sexual intercourse according to the case PP v Mohammad Arfah
Jasmi is insertion of a mans erect penis into a womans vagina, usually followed by
the ejaculation if semen. However, explanation to section 375 states that penetration
is sufficient to constitute the sexual intercourse to the offense of rape. In determining
whether Joni will be liable under section 375(c), two elements need to be fulfilled is
that firsly, there is an of rape and the consent given by Cinta is obtained under
misconception of facts.
The first element is assumed to be fulfilled as the question is clear on the fact that
Cinta indeed had sex with him.
Thus, we need to look at the second element. The second element required that the
victim to give her consent under misconception of facts. According to the case of
Clarence, it can be seen that misconception has to be a misconception to the nature of
the act itself or as to the identity of the person who does the act. In the case of R v
Williams, the court dismissed the appeal of the appellant in which he claimed to be in
sexual intercouse by the consent of the victim. In that case, the appellant enganged the
victim in a singing and voice production lesson. The appellant then told the victim
that her breathing was not quite right and that he had to perform an operation to
enable her to produce her voice properly. The court held that the defence of consent
cannot be invoked because the victim was under the misconception to the nature of

the act itself. The victim thought that the act was a surgical operation. In the case of
PP v Abdul Rahman Mohamad, the accussed was convicted with rape of a 20 year
old girl. The accussed was a bomoh, trying to cure the victims illness. He told her
that he would perform a therapy and if she refused to submit, then she would become
insane or would meet with death. The court held that the victim was under the
misconception that of the fact that she was being treated by a prominent spiritual
healer. Her mind was clouded and confused and devoid of free will that it cannot be
said that she consented to the act.
In our case, Cinta was told by Joni that if she had sex with him, she would become
beautiful. It seems like Cintas misconception was more to the result of the act, rather
than the nature of the act itself. Assumming Cinta is an adult, she would clearly
understand the act of a sexual intercourse. Just because she thought that the act would
make her beautiful while in fact it didnt, it doesnt mean that she was under
misconception of facts. The court in the case of Clarence has held that the term
misconception cannot be construed too widely or not every case in which a man
infects a woman or commits bigamy, the second wife being ignorant of the first
marriage, is also a case of rape. Thus, the only misconception accepted in that case is
the misconception of the nature of the act itself. Cintas case is distinguished from R v
Williams and PP v Abdul Rahmans case. in the earlier 2 cases, the victims didnt
seem to understand the act of sexual intercourse itself and had called them a surgical
and therapy treatment. In Cintas situation, Joni clearly told her to have sex with him
and she seems to understand the act of sex. In conclusion, it cannot be said that
Cintas consent is under misconception of facts.
Therefore, Joni is unlikely to be convicted for rape under section 375.

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