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Archive for October, 2010

Submissions to MCYS on Women’s Charter

Tuesday, October 5th, 2010

The Ministry for Community Development, Youth and Sport is seeking feedback on proposed amendments to the Women’s Charter. Below is the submission made by No To Rape today.

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1. Background

1.1 No To Rape is a volunteer-led campaign calling for the total abolition of marital immunity for rape in Singapore. No To Rape seeks the complete repeal of Section 375(4) and Section 376A(5) of the Penal Code, so that all instances of non-consensual penetration of a woman’s vagina by a man’s penis constitute the offence of rape.

1.2 About 50 individuals from a range of racial and religious backgrounds have worked on No To Rape. The core team, responsible for management and funding, are Koh Wei Jie, Jolene Tan, Mark Wong and Wong Pei Chi. Opinions in this submission are those of the core team alone. Further information can be found at http://www.NoToRape.com/ and the core team can be contacted at notorape@gmail.com.

1.3 In 2009, No To Rape submitted to the Prime Minister a petition carrying more than 3,600 signatures by Singapore citizens and Permanent Residents in support of this legislative amendment. Notable signatories include:

1.3.1 Academics: Dr Kenneth Paul Tan, Lee Kuan Yew School of Public Policy; Professor Chua Beng Huat, NUS Sociology Department; Professor Kumaralingam Amirthalingam, NUS Law Faculty.

1.3.2 Marriage counselors and social workers: David Blakely, President of the Singapore Association for Counselling; Benny Bong, President of the Society Against Family Violence.

1.3.3 Former NMPs: Kanwaljit Soin; Braema Mathi; Siew Kum Hong.

1.4 This petition was endorsed by the Association of Women for Action and Research and by MARUAH, the Singapore working group for an ASEAN human rights mechanism. A statement of support was also received from Trinity Theological College.

2. Submission

2.1 No To Rape welcomes the move by the Ministry to review the Women’s Charter and update the statutory and other legal provisions governing marital and other familial relations.

2.2 The Women’s Charter plays an important role in ensuring that situations of familial conflict are regulated to safeguard the security and well-being of all members of those families in Singapore that fall within its remit. (We note the exception of marriages between Muslims from the scope of the Charter.) In particular, it reflects an understanding of the position of physical vulnerability and economic dependence in which individuals may find themselves in relation to other family members, and of the corresponding need for robust state protection and legal recourse against familial abuse.

2.3 It is submitted that Section 375(4) and Section 376A(5) of the Penal Code should be repealed on the grounds that they undermine this important purpose, by creating immunity against criminal prosecution in the case of sexual violence perpetrated by men against their wives under specific conditions. These statutory provisions exempt non-consensual penetration by a man, with his penis, of a woman’s vagina, provided that the man and the woman are married to each other, unless certain limited conditions have been met (e.g. there has been an application for divorce, separation or a PPO, or a written separation agreement has been signed).

2.4 These provisions are inconsistent with the spirit of the Women’s Charter, which reflects the understanding that there exist difficult and unfortunate circumstances where, despite the existence of familial relations and the formal ties of marriage, a spouse may require the law to protect him or her from the abusive actions of his or her spouse. Neither these abusive actions nor their impact upon their victims are dependent on whether any application for divorce, separation or a PPO has yet been filed. Section 375(4) and 376A(5) deprive the police, the Ministry, the Attorney-General’s Chambers and the courts of Singapore of an important option when these agencies consider their response to such abuse.

2.5 In particular, as a result of Section 376A(5), marital immunity for rape applies even in the case of adult men who non-consensually penetrate their wives, where those wives are under the age of 16. In those cases, it is extremely likely that the wife lives under conditions of physical, economic and social vulnerability vis-à-vis her husband, and the expectation that she should take steps to apply for a divorce, separation or PPO before she qualifies for legal protection from violence is particularly burdensome and unrealistic.

2.6 International studies (such as those presented at the Ministry’s Family Violence Symposium of 2009) also indicate the prevalence of family abuse, including sexual abuse, against people with disabilities. The Ministry is urged to consider the particular impact of the requirements of Section 375(4) and 376A(5) (in terms of applying for divorce, separation or a PPO) on women with disabilities who experience sexual violence from their husbands.

2.7 Public opinion in Singapore is consistent with our recommendation. A 1993 report “Social Definitions of Family Violence in Singapore” by Choi, A. and Edleson, J L, surveyed the attitudes of 510 Singapore residents and found the following:

2.7.1 95% disapproved or strongly disapproved of the use of force by a husband if his wife refused to have sex.

2.7.2 74% considered having sex with one’s wife against her will to be assault. 93% considered assaulting one’s wife to be a crime.

2.7.3 69% considered having sex with one’s wife against her will to involve the ‘major’ use of force. An overwhelming majority — 83.8% — favoured police intervention (ranging from warning to charging to arresting the husband) in even a first-time ‘major’ assault.

2.7.4 Only 11.7% considered that judges should treat wife assaults less seriously than other personal assaults. 53.4% thought they should be treated equally seriously, and 34.6% thought wife assaults should be treated more seriously.

2.8 Where it is not possible to prove non-consensual penetration to the criminal standard of ‘beyond reasonable doubt’ in a court of law, the exercise of prosecutorial discretion and/or judicial scrutiny is the appropriate mechanism for preventing any miscarriage of justice. By contrast, the existing statutory immunity is an unnecessary barrier to appropriate prosecutions and convictions even where the evidence is sufficient to meet that standard.

2.9 In addition, it is submitted that the proposed introduction of Section 12A presents a timely opportunity for further preventative action against sexual violence between spouses. The Ministry is urged to ensure that all marriage preparation courses completed in satisfaction of this new requirement equip the prospective couple with a thorough understanding of the importance of affirmative consent in any sexual activity within their marriage. Specifically, couples should be encouraged to recognise that:

2.9.1 Sexual activity should only take place when it is mutually and freely consented to by both spouses and in the absence of any coercion, whether this coercion takes physical, emotional, economic or other forms.

2.9.2 If one party is in doubt at any time as to the wishes or consent of their spouse regarding sexual activity, they should actively seek clarification.

2.9.3 Proceeding with sexual activity when one spouse has not given clear consent amounts to violence, which is punishable under the Penal Code.

2.9.4 A party who has been subjected to sexual violence from his or her spouse can seek help through applying for a PPO or making a police complaint. This is a valid self-protective measure to take, and should not be regarded as a betrayal, shame or failure.

2.10 It is noted that Section 12A is expected to apply, in particular, to marriages where at least one party is a minor (Consultation Paper). The recommendation in 2.9 above is particularly germane in view of the particular vulnerabilities of minor spouses discussed at 2.5 above.

3. Conclusion

3.1 It is submitted that the Women’s Charter (Amendment) Bill represents a timely opportunity to fully repeal Section 375(4) and Section 376A(5) of the Penal Code, so that all instances of non-consensual penetration constitute the offence of rape, in keeping with the humane and pragmatic purposes of the Women’s Charter.

3.2 Compulsory marriage preparation courses should emphasise the importance of affirmative consent in all sexual activity. This will promote better marital relations, help to prevent future sexual violence within marriages, and also better equip victims to seek timely assistance should such violence nevertheless occur.

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Please consider making a submission to MCYS in support of our proposals. You can do so through the REACH website until 24 October.

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