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.

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.

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.

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.

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.

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.

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.

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!

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.

The district judge did not appear to have addressed his mind to the circumstances surrounding the commission of the offences and, in particular, the violent behaviour of the respondent. One relevant consideration was his motive in restraining the wife. The use of force was deemed necessary by him to compel her to submit to his sexual desires when she rejected his initial sexual advances. It was held in Chia Kim Heng Frederick v PP [...] that sexual intercourse with a woman against her will ‘must by its very act contain an element of violence’. Even though the respondent could not be charged for rape because of the statutory exception set out in s 375 of the Penal Code which provides that a man shall not be guilty of raping his wife so long as she is not under 13 years of age, this does not detract from the fact that non-consensual sexual intercourse with the wife is still an act of violence which ought to have been regarded as an aggravating factor. [...]

At this junction, I would like to deal briefly with the prosecution’s submission that the trial judge had placed undue weight on the fact that the offences occurred as a result of a domestic dispute. Although the district judge made a passing reference in his judgment to the fact that ‘the offences happened consequent to a domestic dispute’, it was not entirely clear as to the exact weight he had placed on this factor in deciding on the sentence. In my view, it would be wrong to regard this as a mitigating factor. An offence committed against one’s spouse should not be treated any less seriously than an offence committed against a complete stranger.

[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!