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Posts Tagged ‘Legal’

Joint letter from No To Rape and AWARE

Monday, January 28th, 2013

Last week the Straits Times published a joint letter from No To Rape and AWARE, responding to recent Forum contributions on the subject of marital rape.

The argument in support of Section 375(4) of the Penal Code, which treats marital rape as an exception to rape save in certain circumstances, is that “sexual relations are to be expected in a marriage”.

We agree, but consent should still be a pre-condition.

Where an individual regularly refuses to have sex with her spouse, the correct remedy would be for the spouse to seek a divorce, rather than to force her to have sex.

Law enforcers and lawyers regularly examine evidence of rape in other contexts.

If marital rape immunity were entirely repealed, these agencies would just have to apply the same considerations to marital rape cases, which are currently automatically excluded regardless of the strength of evidence.

Click here to read the full letter.

It is also worth noting some of the arguments raised by Benjamin Joshua Ong in support of reform:

First, by making the lack of consent to sexual intercourse merely an aggravating factor to another criminal charge, the present legislation does not highlight that the harm arises from the very fact of sexual intercourse without consent, and not only from other concomitant incidents of violence.

Second, it neglects the need for accurate labelling of offences. The word “rape” has connotations that reflect the seriousness of the offence. Surely nobody would be satisfied if the law referred to murder as, say, “very serious assault”; it would simply not do justice to the sense of moral repugnance at the crime.

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A welcome parliamentary mention

Tuesday, February 28th, 2012

No To Rape strongly welcomes the remarks of Law Minister K Shanmugam and MP Vikram Nair, made in Parliament just over a week ago, regarding the possible abolition of marital immunity for rape. The Minister mentioned his meeting with No To Rape team members and described our goal as “worth looking into”.

Together with the repeal of Section 157(d) of the Evidence Act, this move would reflect a significant step towards ensuring that survivors of sexual violence are given the fair hearing that they deserve. Both measures would empower police, prosecutors and the courts to consider evidence of sexual violence on its own merits, rather than prejudicing the question by reference to the irrelevant sexual history of a complainant, such as whether she is married or had a prior sexual relationship with the accused.

We are also heartened by the strong positive response by members of the public to the Minister’s remarks. This is consistent with our experience over three years of working to end marital immunity for rape. We have received many messages of support from women and men of varying racial and religious backgrounds, including many who work in counselling and law. As survey results demonstrate, many in Singapore regard forced sex within marriage as an assault which should be taken seriously by the criminal law. The move discussed by the Minister is wholly in accord with society’s most fundamental shared values, which consider violence in any form and by any person to be severely unacceptable conduct.

Moreover, No To Rape applauds the call by Mr Abdul Mutalif Hashi, president of the Association for Devoted and Active Family Men, to educate men that “it is not right for husbands to demand sex”. We believe that no person, regardless of gender or marital relationship, has the right to demand sex from any other person. This belief is shared by many of our supporters, both women and men.

However, we believe that such education can and should be carried out in tandem with changes to the criminal law. As marriage guidance counsellor Osman Sidek has eloquently reasoned, even if marriage entails an obligation to have sex, this does not imply that there should be no limits on the action that a spouse can lawfully take to enforce this obligation. A husband who believes himself wrongfully deprived of sex should have recourse to counselling or the divorce courts, not to violence. The act of forcing an unwilling spouse to have sex is inherently violent and should be punishable under the Penal Code.

A warm thank you to MP Vikram Nair and the Law Minister for speaking up in favour of the full legal protection of all women against sexual violence. We call upon all persons of conscience, including MPs, Ministers, as well as members of the public, to give this move their fullest support

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Welcome change to Evidence Act

Sunday, November 27th, 2011

No To Rape strongly welcomes the decision announced by Minister for Foreign Affairs and Law, Mr K Shanmugam, to repeal Section 157(d) of the Evidence Act. This provision states that in legal proceedings “when a man is prosecuted for rape [...] it may be shown that the prosecutrix was of generally immoral character” in order to impeach the credibility of the rape complainant. (See previous AWARE article on this issue here).

The Minister stated the reasons for the repeal at the recent official launch of AWARE’s Sexual Assault Befrienders Service, an important specialised service providing support to those who have experienced sexual assault. He described his consultation with civic groups including No To Rape and AWARE on the matter of rape complaint procedures, and pointed out that Section 157(d) rests on two “antediluvian and repugnant” “myths” which “should [not] find any expression in our laws”. Namely, that:

a) a woman who is sexually experienced is less credible as a witness; and
b) a woman who is sexually experienced is more likely to have consented to sexual activity.

The Minister went on to state:

The approach we should take to this, whether it is a man or a woman – matters relating sexual history, just like a man who has been previously accused, whether that should or should not be taken into account – sexual history of either party can only be taken into account if it is relevant for that particular case. So, we really ought to leave it to the courts. Neither should we say it is completely irrelevant. It really depends on the facts, and it cannot just be the woman. That must be the right approach.

Like all other evidence, matters relating to a victim’s sexual history must satisfy the threshold of relevance before they can be introduced, rather than as dictated by Section 157(d).

No To Rape welcomes this as an improvement over the status quo, although we believe further consideration should be given to the possibility that the sexual history of the complainant will never satisfy a rational threshold of relevance, and should therefore be considered inadmissible in all cases.

In addition to this, however, No To Rape believes that the logic articulated by the Minister also requires the abolition of marital immunity for rape. Under the Penal Code as it stands, in the absence of proceedings for divorce, separation, an injunction or a personal protection order, the existence of a marital relationship is not only considered automatically relevant to rape cases. It goes a step further, to automatically determine the result: there can be no conviction. The individual facts of the case cannot be considered by the court under a rape charge, even if there is clear evidence of (for example) accompanying violence, leading to injury, or forms of physical restraint, or corroborative third party testimony, that would point strongly toward a finding of non-consent to sexual intercourse.

No To Rape congratulates the Ministry on the decision regarding the Evidence Act, and urges it to build upon this progress by also repealing Sections 375(4) and 376A(5) of the Penal Code.

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Getting a Personal Protection Order (PPO)

Friday, June 3rd, 2011

No To Rape calls for all instances of marital rape to be treated as “rape” under the Penal Code (or “sexual penetration of a minor”, where the victim is under 16). At the moment, this only happens if the victim has previously made applications for certain orders against their spouse. One of these is the Personal Protection Order (PPO).

AWARE have put together a helpful guide on PPOs which tells you where you can apply for them and what to do if they are not followed. Although you do not need a lawyer for a PPO, there is also advice on who you can contact if you do need legal help.

If you believe you (or anyone in your family) is at threat of violence from another family member (including your spouse), or a family member (including your spouse) has already committed violence against you (or another family member), it can be helpful to seek a PPO to deter further violence. You can access the AWARE guide by clicking here.

It is not always possible to tell in advance whether a spouse will commit violence, including sexual violence. Protection should be provided against all acts of abuse, foreseen or unforeseen. No To Rape believes the law should be changed so that no application for a PPO is necessary to treat marital rape as rape. With the law as it stands, however, the marital rape exemption is an additional reason why PPOs need to be made as easily accessible as possible, and we thank AWARE for making this useful information available.

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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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