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Wives under the age of 16

Monday, November 23rd, 2009

A letter by Associate Professor Chan Wing Cheong (who previously kindly spoke at the No To Rape seminar) has been published in the Straits Times Forum. It makes reference to the situation of wives under the age of 16:

The present law is inconsistent in that consensual sex with a girl under the age of 16 is a serious offence under the Penal Code, punishable with imprisonment of up to 10 years and/or a fine, but it is not a criminal offence for a man to have sex with his wife who is at least 13 years old.

If we are concerned about the emotional and physical well-being of young girls engaging in sex, it cannot be right to allow men to have sex with their wives between the ages of 13 and 16, just because they are married to each other. The marriage will most likely have taken place with a foreigner overseas, where marriages with young brides are allowed.

Currently, Section 376A makes it an offence to have sex with any person under the age of 16, whether or not the minor expresses consent. Associate Professor Chan’s letter appears to question the retention of two separate exempions:

(1) Section 376A(4), which grants immunity from this offence when a girl under the age of 16 says “yes” to sex with her husband.

(2) Section 376A(5), which grants immunity from this offence, even in situations where a 13-, 14- or 15-year-old girl has said “no” to her husband.

The current No To Rape petition calls for the complete removal of Section 376A(5). (This is in no way an endorsement of Section 376A(4), which may also require further review.) If you believe that a man should not be able to force an unwilling 13-, 14- or 15-year old wife to have sex, please sign it today, and help to spread the word.

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Inadequacies in protection

Tuesday, November 17th, 2009

Dr Theresa Devasahayam of the Institute of Southeast Asian Studies has written a letter to the Straits Times about family violence.

But the amended charter has its shortfalls. While it protects spouse, former spouse, child, stepchild, adopted child, parents, parents-in-law and any other relative or incapacitated individual who is regarded by the court as a member of the family, couples who live together are excluded.

If the Family Violence Bill was in place, courts would have protected even de facto or common law ‘marriages’ and not ignore them altogether.

The Women’s Charter has another defect. Only the victim can apply for a protection order. In reality, the victim often believes she cannot help herself and, as a result, fails to take any action to end the abusive relationship.

An advantage of the Family Violence Bill would have been that anyone who had reason to believe that family violence (including spousal violence) was being committed could apply for a protection order for the victim.

The Women’s Charter is flawed in another way. The amended charter makes it mandatory not only for the abuser but also the victim to undergo counselling. In contrast, the Family Violence Bill would have reserved mandatory counselling for the abuser only.

Clearly, family violence should be fought on many fronts, as is currently done. But legal reform is also critical to eradicate this social problem. The legal reforms in place to fight family violence are a step forward, but more can be done to ensure gender egalitarianism.

It is interesting to note that for many forms of family violence, as Dr Devasahayam points out, unmarried partners do not enjoy the same protections as married partners or formerly married partners. In the case of rape, conversely, women raped by their unmarried partners benefit from protection which is not extended to women raped by their husbands.

These inconsistencies reflect an incomplete picture of the reality of experiences of violence and suggest that legal public policy approaches need better rationalisation. All kinds of violence should be considered equally severe. At the same time, there are specific issues raised when dealing with forms of violence faced by people tied by shared daily lives and households – for example, an overarching dynamic of domination and control would not exist in a street fight between strangers, but would exist in a couple who lived together, whether or not they were married to each other. More social support might be needed in the second case, for the reasons that Dr Devasahayam puts forward. The recognition of this reality, as reflected in the Women’s Charter, strengthens the case for the abolition of marital immunity for rape.

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Women with disabilities and minor wives

Thursday, October 22nd, 2009

MCYS has put out a press release which includes details of the National Family Violence Symposium held on Wednesday. One presentation makes particular reference to the position of people with disabilities in the United States (emphases ours):

Studies have long established that people with developmental or other disabilities are disproportionately victimized in the United States. One study found that among adults with developmental disabilities, as many as 83% of females and 32% of males are the victims of sexual assault. Perhaps most astonishingly, 97%-99% of abusers are known and trusted by these victims. Victimization rates for persons with disabilities is highest for sexual assault (more than 10 times as high) and robbery (more than 12 times as high).

There are a number of factors related to the susceptibility to abuse for individuals with disabilities. In addition, there are many existing significant barriers, both real and perceived, that affect vulnerable adults and their interaction with the criminal justice system. These barriers include societal perception of disability, use of appropriate language and current realities for adults and children with disabilities.

Under the Penal Code at the moment, marital rape is excluded from the definition of rape unless the victim had taken certain legal steps, including for example applying for a personal protection order, prior to the assault.

One of the arguments set out in our Petition is that the requirement of making applications for orders, injunctions etc. may be especially difficult to fulfil for minor wives and/or women with disabilities with abusive husbands who are adult and/or able-bodied. Such girls and women are likely to be in a position of dependence – economic, or physical, or both – which makes it much harder for them to cross the extra hurdles put in place before they can seek the protection of the criminal law.

We hope that MCYS and the government will pay close attention to the implications of the presentation for the Penal Code. The situation in the United States may not be directly comparable to the situation in Singapore. But if women with disabilities are especially likely to suffer sexual violence within the home, it becomes even more important that marital immunity for rape be completely abolished.

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Ten years ago, today

Thursday, October 1st, 2009

Ten years ago, today, then Chief Justice Yong Pung How handed down the appeal judgment in the case of PP v N. (Summary of facts by court.) A woman was gagged, tied up, and forced to have sex – but despite clearcut evidence of non-consent, no rape charges could be brought, because her tormentor was her husband.

It is for her and others like her that this campaign was started. Please keep spreading the word about No To Rape – we need to make every voice for justice heard.

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Degrees of violation

Tuesday, September 29th, 2009

It is sometimes claimed that because a woman expects to have sex with her husband, and has probably had sex with him before, marital rape is less traumatic, severe or reprehensible than other kinds of rape. This argument is used to justify marital immunity for rape.

Our FAQ points out that there is simply no evidence to support the idea that marital rape causes less distress than other kinds of rape. The impact of sexual violence on physical and psychological well-being depends very much on the individuals involved. The fact that some victims may recover sooner or more easily from an experience than others does not excuse the acts of those who rape.

Case law recognises that consensual sexual intercourse between perpetrator and victim prior to or after an incident of rape does not necessarily mean that the rape is less severe. In PP v Mohammed Liton Mohammed Syeed Malik, the court recognised that a pre-existing sexual relationship between victim and perpetrator was not automatically a mitigating or aggravating factor, but should be considered in all the circumstances of the case to determine its bearing on the seriousness of that case. Sometimes it has no significance at all. The same evidence-based approach should be taken with marital rape.

Rape is not simply a rougher version of ordinary, consensual, mutually respectful sex. It is experienced by its victim as an entirely different act – just as eating a good meal is entirely different from having the same food forced down your throat, or an enjoyable swim is entirely different from someone forcing your head underwater. Expecting to sometimes engage in mutual acts of intimacy with your husband cannot automatically make it less distressing when the same man violates, humiliates and dominates you against your will. The idea is wholly illogical.

The eloquent testimony of the victims featured in Get Rea! demonstrates that victims of marital rape may feel trapped, betrayed, frightened and violated. Both women interviewed feared for their health following the assaults, and one reported contracting a sexually transmitted infection from her husband. ‘Lily’ tells us how the husband who raped her “has cost me a lot. My personality, my life, my marriage, my wasted life.” Once you consider the reality of their experiences, the argument about degrees of violation appears very hollow indeed.

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Seminar video highlights, Part 1

Saturday, August 22nd, 2009

Videos from our public seminar have been available for some time, but we’ve gone through them to extract some brief portions that may be of particular interest.

Benny Bong, President of the Society of Family Violence, talks about some of the troubling aspects of marital rape cases, including how a lack of societal condemnation is like a second victimisation:

Associate Professor Chan Wing Cheong of the NUS Law Faculty responds to a question about whether “vengeful wives” have been known to make abusive allegations of marital rape in those countries which make no distinction between marital rape and stranger rape:

A member of the audience comments on cases where women know their husbands are cheating on them, but nevertheless believe they are obliged to have sex despite the possible ramifications for their own health (e.g. sexually transmitted infections):

More short clips to come – watch this space!

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More on PP v N

Sunday, August 16th, 2009

You may have seen that No To Rape has been featured in the Straits Times again. Thank you once again to all the volunteers and supporters who have helped to make this campaign newsworthy. Your efforts mean that the No To Rape message can reach a wider group of people.

Interestingly, blogger Mr Wang has picked up the story (we are grateful for the link!), and it emerges that he was the prosecutor in the landmark marital rape case of PP v N (we posted the facts previously but the link is malfunctioning slightly – click on the ‘Legal’ tag on the right and you can read them). Mr Wang describes his experience in the High Court:

The prosecution appealed for a higher sentence. I took the case to the High Court. There I presented to the Chief Justice various arguments for a heavier sentence.

I still remember the first question that Yong Pung How had asked in court. He asked, “Why wasn’t this man charged for rape?”

Yong didn’t know that the prosecution couldn’t do that. He looked slightly stunned, when I pointed him to the relevant immunity provision in the Penal Code. At first sight, Yong’s ignorance of that point was very surprising (you would expect the Chief Justice to know better). However, on further reflection, Yong’s ignorance was not that surprising.

Why? Well, as Chief Justice, Yong had heard hundreds, perhaps thousands of criminal cases. So he knew a lot about criminal law. But Yong had never heard a single case where a husband had been charged for raping his wife. And that, of course, was because the law did not even allow the prosecution to charge any husband for such an offence.

Anyway, the Chief Justice increased the sentence for N. He brought the overall sentence close to the maximum possible, for the charges of “criminal intimidation” and “voluntarily causing hurt”. If I recall correctly, it added up to a few years’ imprisonment. This was a big improvement over the original sentence, but it was still a lot lower than what it would have been, for a bona fide rape charge. Even the Chief Justice is constrained by the words in the Penal Code, you see.

It may be worth referring to the words of then-Chief Justice Yong in the case, which reflect the principles that rape is a form of sexual violence and that violence committed against one’s spouse is no less severe than violence against a stranger. Both these principles support the total abolition of marital immunity for rape. We have added emphasis to the relevant language.

Click here for more

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Query on proof and ‘double jeopardy’

Friday, August 14th, 2009

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: Entry continues, click here for more

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One step among many

Thursday, July 30th, 2009

The abolition of marital immunity for rape will not resolve all issues relating to marital rape. Far from it. Many other interventions are needed. Counselling, mediation, medical help and the civil law all have a part to play in responding to incidents, and education and a wider national conversation are needed to build a culture where all are conscious of the importance of seeking and communicating consent when engaging in sexual activity.

Even where convictions are obtained, there is dispute over the measures that should result. Hauling perpetrators to prison or meting out strokes of the cane may not always be appropriate for the circumstances, and will never by themselves do away with sexual violence. Restorative justice measures such as victim-offender mediation and mandatory behavioural therapy for offenders may often be more constructive than purely punitive responses.

However, the change we propose to the Penal Code is one vital step among many. Recognising that marital rape is equal to other forms of rape in harm and culpability does not end the story. Rather, it opens up possibilities for dialogue on what to do next. The Penal Code would send an unequivocal statement: this form of violence and wrongdoing has no place in society. Whatever your greviances with your spouse, you must not violate their bodily integrity, but resolve them through peaceful means. It also says: if your spouse is physically abusing you, this is not something you need to tolerate. Under no circumstances do you deserve this. If you suffer it, and you wish to speak up, we will take you seriously, rather than write this off as a lovers’ tiff.

At the moment, the law denies that marital rape happens, or pretends it is acceptable, or characterises it as a personal dispute in which parties are both, somehow, murkily responsible – rather than seeing it as being, like beating your wife or husband, a completely intolerable method of resolving disagreements. The law as it stands does not identify a victim and a perpetrator and so cannot communicate vindication and censure.

This petition is not primarily about harsh punishment, though we believe greater crimes should carry more burdensome punishments and lesser crimes lesser ones (for example, non-consensual penetration should be treated more severely than unwanted stroking). The possibility of conviction, and thus the societal condemnation inherent in criminal law, matters. When, in a counselling session or mediation for example, the counsellor or mediator is able to identify certain forms of behaviour as not only undesirable or unwise or unpleasant but criminal, this has greater gravity.

The reform we advocate crystallises a social understanding that the act of rape is a breach of the basic standards which make it possible to live side by side with others in society.

No To Rape does not pretend that this will solve all problems. However, it is one important part of our societal response, a part which is critical to establishing a footing for other parts. Unless and until we name rape for what it is – as long as we deny what actually happens – how can we hope to adequately address it?

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What is at stake

Tuesday, July 21st, 2009

No To Rape does not agree that marriage entails a moral obligation to be sexually available to one’s spouse at all times. But immunity for marital rape is unjustifiable even if we are wrong about that. Whatever disputes a married couple has – including over sex – rape is an act of violence which no circumstances can justify or excuse. Even if someone is 100% at fault in a disagreement, society should not allow the other person to rape them. Everyone should be protected from violence.

However frustrated someone may be if their spouse’s sexual inclinations do not match their own, they always have a choice about how to respond. A husband who is dissatisfied can talk things through. He can seek professional counselling. He can be less than constructive without ever committing violence against anyone: he can smash a dish, he can ignore his wife, he can make malicious remarks. The law doesn’t intervene in such behaviour.

As long as he doesn’t choose to commit rape, he won’t become a rapist.

What’s at stake here is what society does when someone chooses – out of all the many options for how they can respond to a situation – to violently hurt their spouse in one of the most distressing and disabling ways possible.

This is the reality of what we are dealing with. In the case of Public Prosecutor v N (facts here) a man threatened to kill his wife if she divorced him. He slapped her, tied and gagged her and then raped her. He was charged for the threat to kill her, for slapping her, and for tying and gagging her, but marital immunity meant that a charge could not be brought for the most serious act: that of rape.

The 10th anniversary of the case looms (it was decided in October 1999). Slapping, tying, gagging, threatening – all these are recognised, and punished, as violence. The pain, intrusion and humiliation of rape is erased. The law looks an act of violence straight in the face and denies that any wrong was done.

What is at stake is whether we acknowledge experiences like those of this signatory, and whether we openly and firmly declare our censure of it – or whether we demand that she and those like her never speak:

I was a victim of this crime when my husband at that time hit me and then demanded sex. All I could do was cry and submit and then forever remain silent.

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