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Query on proof and ‘double jeopardy’

We have received the following query, which may be of interest to visitors to the site. So, with the kind permission of the author, we are reproducing it here. Given the length of the query, the author has also given us permission to abridge the initial email. We have indicated omissions and paraphrasing in square brackets but hope the final result accurately conveys the substance of the concerns:

[Removing immunity may reduce protection against rape]

1) [Currently] Husbands who [rape their wives can be] charged under “voluntarily causing hurt” [...] or even assualt [...]

2) [Here is why] non-consent would be harder to prove in marital rape cases. [Sexual intercourse can be established through semen samples.] If generally unrelated, [...] it is fairly reasonable to question why would a man be having sexual intercourse with the lady. [E.g.] A has never had a prolonged sexual relationship with B and B can provide evidence that she does not have a history of having sexual intercourse with random character, it would be fairly reasonable to assume that B would not have given her consent.

[In] cases [of a] prolonged sexual relationship [it is] harder to convince the judge [of non-consent]. [Women have] the right to refuse [consent at any time, but] it would be difficult to [...] prove that she had refused it on one particular day, while agreed on so many occassion before.

3) [I am concerned with 'double jeopardy' in law. If] A is charged for a particular crime for a particular act, he/she cannot be charged for another crime on the same act. [A] rapist is hardly ever charged of “voluntarily causing hurt” or “assualt” during the course of his act. In some cases however, a rapist will be charged both assualt and rape, but that is usually two separate act carried out within a very short time frame. Meaning, the rapist had assualted the victime before raping her, as oppose to causing hurt while raping her.

[Given the above, will abolishing marital immunity] lead to more marital rapist escaping punishment completely[? ...] Due to [...] Double-Jeopardy, he cannot be charged with voluntarily causing hurt or assault. But because [...] rape [is] more difficult to prove in marital case, the prosecutor is unable to convinve the judge [of guilt] “beyond reasonable doubt”, he will be acquited.

[Legislation can make an ethical stand but we should consider enforceability and the utilitarian effect. Repeal might cause more violators to be acquitted. Another approach is to amend the law so that] the violator can be at least charged with voluntarily causing hurt or assualt and that marital rape be taken into consideration if it can be proven. [If not,] the violator could at least be locked up for voluntarily causing hurt and assault?

Our response is set out below:

[...] although we understand your concerns, we continue to regard the total abolition of marital immunity for rape as the appropriate policy. We note that individuals who have worked extensively on the question of sexual violence within marriage in both academic and practical ways agree that marital rape should be treated as rape. For example, signatories to our petition include Associate Professor Chan Wing Cheong, who researches family law and criminal law at NUS, and Benny Bong, President of the Society Against Family Violence, who has worked with victims of domestic violence.

We respond to your points more specifically below (any errors and opinions in our response belong solely to No To Rape):

1) Outside of the marital context, the law recognises that rape is more serious than other available charges relating to assault and accordingly carries more serious penalties. In our view, the severity of the act must be reflected in the severity of the offence. If only lesser charges are available in relation to marital rape, then the law continues to say to society that raping your wife is not as bad as other kinds of rape, and therefore to some extent – as you put it – marriage is treated as a “seasonal pass to sex”, even without a wife’s consent.

2) We do not believe that your reasoning about the evidence for non-consent reflects social reality. Many people in Singapore have sex outside marital relationships, and the law has successfully determined guilt for rape even where the perpetrator was consensually sexually intimate with the victim both before and after the offence, for example in the case of PP v Mohammed Liton Mohammed Syeed Malik. The determination of consent is not and should not be based on whether the alleged victim has had sex with the alleged perpetrator (or any other person) in other incidents, but whether there was consent in the particular incident which is contested.

We note that SPF statistics in 2005 and 2006 showed that almost all rape cases involved victims and perpetrators who knew each other before the rape. Therefore, the authorities are used to investigating, prosecuting and adjudicating cases where a prior relationship (sexual or otherwise) exists. In fact, it is this form of rape, rather than ‘stranger rape’ which you posit as the standard case, which authorities typically deal with. We do not agree that questions of proof of non-consent are more difficult to determine in the marital context than in the cases which the police and the law already handle.

3) Your arguments about ‘double jeopardy’ are based on the idea that it would especially hard to secure convictions for marital rape, which we have already explained is inaccurate. Moreover, your suggestion that marital rape be “taken into account” on other charges is puzzling. The lesser charge remains a lesser charge carrying less censure – which is not adequate for reasons we have explained above. Are you suggesting increasing the penalties for less serious assault offences so as to cater for the possibility of marital rape? If so, surely it would be unfair to defendants if these new, greater penalties could apply without the element of non-consent being proven to the usual standard of “beyond reasonable doubt” (which you seem to want to avoid). On the other hand, if the element of non-consent must be proven, then how does this solution differ from ours?

In our view, the only just and appropriate position is the simplest one: treat rape as rape whenever it can be proven on the individual merits of the case, regardless of whether the parties are married.

We are very grateful for this thoughtful feedback and for the effort that people take to communicate these concerns to us. Do keep the ideas and emails coming!

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This entry was posted on Friday, August 14th, 2009 at 7:34 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

One Response to “Query on proof and ‘double jeopardy’”

  1. Brenda Guardado says:

    I’m glad that we’re sticking to ”probable cause”.

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