Reforming Gendered Rape Definitions: A Comparative Doctrinal Analysis of Malaysia’s Penal Code and Canada’s Sexual Assault Framework

Abstract

This paper examines the doctrinal limitations of Section 375 of the Malaysian Penal Code, which adopts a gender-specific definition of rape that effectively confines principal liability to male offenders and restricts the offence to penile–vaginal penetration. This statutory structure creates significant prosecutorial gaps where female sexual offenders are involved and may result in unequal legal protection for victims, including male victims. These concerns raise broader constitutional implications under Article 8 of the Federal Constitution and compliance considerations in light of Malaysia’s international obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Using a doctrinal comparative approach, the study contrasts Malaysia’s rape framework with Canada’s gender-neutral sexual assault model under Section 271 of the Canadian Criminal Code, as enacted through amendments introduced by Bill C-127 in 1983. The Canadian framework criminalises non-consensual sexual touching regardless of gender and centres liability on consent rather than anatomy, reinforced through consent-centred judicial interpretation and protective procedural mechanisms. The comparative findings suggest that Malaysia’s current approach may be difficult to reconcile with purposive equality reasoning and contemporary expectations of comprehensive legal protection against sexual violence. This paper accordingly proposes reform of Section 375 towards a gender-neutral model, drawing on Canada’s consent-based framework to strengthen accountability, enhance victim protection, and promote doctrinal coherence.