What constitutes "consent" in a rape case? So long as judges do not have a standard definition on which to base their judgment, controversy is likely to arise over the decisions made.

Lawyers contacted in the wake of the acquittal of police constable Razali Pilen of two charges of rape, felt it is time for a clear definition of "consent" to be framed in Malaysia.

Razali was accused of raping two illegal immigrants at the Hulu Langat district police station lock-up in Selangor on Feb 24. The women were being held there because they did not have valid travel papers.

Ampang Sessions Court judge Mohammed Saman Mohd Ramli freed Razali of the charges on Monday, after concluding the women had consented to have sexual intercourse with the policeman.

However, the Attorney-General's Chambers confirmed that a notice of appeal was filed at the Ampang Sessions Court this afternoon. This will be followed with a petition of appeal once the prosecution obtains the written judgment.

Question of consent

The lawyers said the present criminal law should be amended to include a clear definition or at least certain presumptions on the meaning of consent. This would guide judges in deciding whether the rape complainant had given consent willingly or under duress.

They said justice would be better delivered to both the complainant and the accused if there were clear requirements on how to prove or rebut willingness and consent on the part of the complainant.

Senior lawyer M Manoharan urged Attorney-General Abdul Gani Patail to consider amending the Penal Code, a legislation that deals with criminal offences and sentences, to include a strict definition of consent.

He said that, without a standard definition, it would be up to the judge to conclude that there was willing consent.

"A specific definition will ensure that there is no abuse of interpretation. Now, any kind of act like gestures or statements by the rape complainant, can be considered to be consent," said Manoharan who is also the Selangor DAP legal aid chairperson.

Referring to the Razali trial, he said there was a possibility that the judge's decision was not legally wrong, although other legal requirements may have been overlooked.

Manoharan also said there appeared to be enough evidence for the AG to charge Razali with other offences relating to assault and abuse of power.

Factors behind consent

Another lawyer, Hasnal Rezua Merican, said the difficulty in coming up with a legal definition of consent could be overcome if the law provides "certain 'rebuttable' presumptions under strict circumstances where consent has to be presumed not to have been given unless proven otherwise".

"For example, if a person under authorised detention complains that she was asked for sexual favours by any person of authority, then consent is presumed not to have been given," he said.

"So the accused will be given a chance to rebut the allegation with other evidence to prove that consent was obtained willingly."

Even if the complainant does not put up a struggle, the court may consider other factors and evidence such as the behaviour of the complainant and the accused before and after the alleged incident, before concluding whether there was consent.

The consent must also be made 'intelligently', meaning that the woman must have consented to sexual intercourse solely because she wanted sex and nothing else, Hasnal said.

Previous cases have shown that a claim of consent can be doubted or rejected if it was given under duress, which can range from an act of force, threat or misrepresentation by the accused.

"A classic example is the case of a female patient who wanted to treat her voice and had consented to sex as a form of treatment. Upon realising that she was misled, she lodged a report claiming rape, stating she would have never allowed the sex if she had known that it would not treat her condition," he said.

Since the accused has to meet strict requirements in proving there was consent, Hasnal said he found it strange that a judge could conclude that a female detainee had sex willingly with a policeman in a lock-up.

"In a situation like this, it would be more reasonable for the court to conclude that consent was given unwillingly," he said.

Different reasoning

Another senior lawyer Zulkifli Nordin said a judge hearing a rape case would also have to consider where the alleged incident took place for example, a house, hotel room, by the road side or in the bushes. Different circumstances would require different reasoning in arriving at a conclusion.

In the event the alleged rape takes place in a police lock-up or detention room, the judge can usually infer that there was no consent especially if the accused was a person with authority.

"In one case in Brunei, a woman was detained by two male enforcement officers. While in a room with them, she was told they needed to measure her private parts as part of security procedures. She consented because she thought it was the procedure," Zulkifli said.

"When she was released, she was told that this was not part of the procedure and she immediately lodge a complaint of sexual assault. The court decided in her favour."

Such cases suggest the special importance of weighing evidence in sexual assault cases, where circumstances may not necessarily be clear cut all the time.