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Wednesday June 13, 2007
81-year-old man found not guilty of raping teen
KOTA KINABALU: One of Sabah’s oldest rape accused, Tausang Tingal Sagunting, 81, walked out of the Sessions Court a free man yesterday.
Judge Ravinthran N Paramaguru said the defence had raised reasonable doubt and found the rubber tapper from Tamparuli here not guilty of raping a 19-year-old.
Tausang smiled and clapped when the court’s decision was translated into his native Kadazandusun and was later seen shaking hands with his lawyer Damianus George Aludah.
Tausang was first charged on Dec 4, 2006 with raping the victim (now 21 and with a child) sometime in August 2004 at a farm in Kampung Laputong, Tamparuli, Tuaran, when he was 78.
He pleaded not guilty.
Tausang, who initially conducted his own defence rejecting free lawyer service, claimed in the trial that the sexual relationship was consensual (suka sama suka).
The prosecution maintained that the girl was a slow learner and not in a position to give her consent.
Midway through the trial, Tausang hired Aludah to defend him.
LEXBORNEO.COM -
WHAT THE LAW ON RAPE AND OTHER SEXUAL OFFENCES IN MALAYSIA –
LOOK AT SECTIONS 375 TO 377E OF THE PENAL CODE……
375. Rape
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:
(a) against her will;
(b) without her consent;
(c) with her consent, when her consent has been obtained by putting her in fear of death or hurt to herself or any other person, or obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception;
(d) with her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent;
(e) with her consent, when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent;
(f) with or without her consent, when she is under sixteen years of age.
Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception - Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognised in the Federation as valid, is not rape.
Explanation 1 - A woman -
(a) living separately from her husband under a decree of judicial separation or a decree nisi not made absolute, or
(b) who has obtained an injunction restraining her husband from having sexual intercourse with her,
shall be deemed not to be his wife for the purposes of this section.
Explanation 2 - A Muslim woman living separately from her husband during the period of 'iddah, which shall be calculated in accordance with Hukum Syara', shall be deemed not to be his wife for the purposes of this section.
376. Punishment for rape
Whoever commits rape shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.
Incest
376A. Incest
A person is said to commit incest if he or she has sexual intercourse with another person whose relationship to him or her is such that he or she is not permitted, under the law, religion, custom or usage applicable to him or her, to marry that other person.
376B. Punishment for incest
(1) Whoever commits incest shall be punished with imprisonment for a term of not less than six years and not more than twenty years, and shall also be liable to whipping.
(2) It shall be a defence to a charge against a person under this section if it is proved -
(a) that he or she did not know that the person with whom he or she had sexual intercourse was a person whose relationship to him or her was such that he or she was not permitted under the law, religion, custom or usage applicable to him or her to marry that person; or
(b) that the act of sexual intercourse was done without his or her consent.
Explanation – A person who is under sixteen years of age, if female, or under thirteen years of age, if male shall be deemed to be incapable of giving consent.
Unnatural Offences
377. Buggery with an animal
Whoever voluntarily has carnal intercourse with an animal shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping.
Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
377A. Carnal intercourse against the order of nature
Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.
Explanation - Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.
377B. Punishment for committing carnal intercourse against the order of nature
Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.
377C. Committing carnal intercourse against the order of nature without consent, etc.
Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.
377D. Outrages on decency
Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.
377E. Inciting a child to an act of gross indecency
Any person who incites a child under the age of fourteen years to any act of gross indecency with him or another person shall be punished with imprisonment for a term which may extend to five years, and shall also be liable to whipping.
