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Time to hold last rites for marital-rape immunity

Time to hold last rites for marital-rape immunity
Indian students of Saint Joseph Degree college participate in an anti-rape protest in Hyderabad on September 13, 2013. Photo: AFP

Time to hold last rites for marital-rape immunity

When Minister for Social and Family Development Tan Chuan-Jin said earlier this month in Parliament that the Government was “actively reviewing” a husband’s limited immunity from marital rape, he asserted that a married woman should have equal protection against sexual violence as an unmarried woman.

“While there are conjugal rights between a married couple, these rights exist within the bounds of reasonable behaviour,” he added in a subsequent interview.

“With this in mind, when a woman says ‘No’, it means ‘No’.”

This strong official affirmation of the right of a married woman to say no to her husband is long overdue.

Repealing immunity for marital rape is not so much a question of if but more a question of when.

Before 2007, Singapore laws did not recognise that a man could rape his wife. But that year, as part of the review of the Penal Code, the law was amended to lift the previous blanket immunity in limited circumstances: If the couple were living apart under an interim divorce judgment or written separation pact; if divorce proceedings had begun; or if the wife has a personal protection order against her husband.

Essentially, immunity is lifted when there is evidence of a significant breakdown in the marital relationship. In such a scenario, the law protects women who have clearly signalled their withdrawal of implied consent to a conjugal relationship. But the law can and should go further.

Immunity for marital rape effectively says that a woman cannot say no to intimate relations with her husband. For a husband to disregard his wife’s non-consent in such a situation is to engage in a coercive act — violence, in short.

Where there is such “intimate violence” in a family, the children also suffer. The law on marital rape immunity is premised on a patriarchal approach to women and marriage.

It harkens to the days when women were treated as chattels of husbands. Notwithstanding the notion of implied consent in a marriage, the law should recognise that a married woman can withdraw her consent to conjugal 
relations.

The 2007 Penal Code amendments did not go far enough; instead, they perpetuated a misogynistic mindset. It was a case of two steps forward, one step back.

One concern with completely repealing marital rape immunity is that it can be difficult to prove; a second worry is whether the State should be brought into a conjugal dispute between a married couple.

While not expressly articulated, there appears to be the view that a disgruntled wife could frame her husband by crying rape. But it is precisely because a married woman ought not to be treated differently from an unmarried woman when it comes to rape that we should not let the spectre of false accusations hold us back from removing marital rape immunity.

Jurisdictions such as the United Kingdom and the United States have long removed marital rape immunity.

Yet, that has not opened the floodgates to false accusations nor undermined the notion of implied consent to a conjugal relationship in a marriage.

The trial process can help to separate false accusations from real ones. Besides severe penalties for false accusations, marital rape cases can be held in camera to protect the family, especially where there are children.

More fundamentally, the authorities had appeared to be unduly concerned with the unintended consequences if implied consent is removed in a marriage.

Sex in marriage, a traditionally private matter, would in cases of rape move it into the public domain.

However, the distinction between the public and private realms should not be taken too far. When violence is inflicted on a spouse, we are no longer in the private realm.

The public realm must be protective of the private realm, which should also be one buttressed by equality, justice and dignity.

In Parliament last week, Minister Tan said that laws shape our ideas of what is unacceptable.

Originating in Britain before being transplanted to the Straits Settlements via British India, the marital rape immunity law dates back to the early 18th century.

This anachronistic law simply prolongs a male-dominated view of sexual relations within a marriage: That a woman must always succumb to her husband. It also makes married women less equal, especially when compared with women not in a marriage. Currently, non-spousal rape carries a maximum jail sentence of 20 years; a fine or caning may also be imposed.

In February 2013, in response to a parliamentary question I filed, the Ministry of Home Affairs stated that “our laws on marital rape should reflect the norms and values in society”, adding that the review of marital rape immunity was “something that is given adequate priority in the Ministry’s work”.

Last year, Singapore stated in its report under the United Nations human rights Universal Periodic Review process that it was “actively working” towards repealing immunity for marital rape. Marital rape immunity is on its last legs in Singapore, and Parliament should do right and resolutely perform the burial rites.

 

ABOUT THE AUTHOR:

Eugene K B Tan is associate professor of law at the Singapore Management University and a former Nominated Member of Parliament.