Dear Sir/Madam

I refer to your email on 16 Mar 2011.

2 The amendments to the Penal Code were made in 2007 following substantial public consultation and deliberation. We value your feedback and will take it into consideration in future reviews of the Penal Code. Thank you.

Best regards,

Rahayu Buang (Ms), Senior Assistant Director (Family Policy), Ministry of Community Development, Youth and Sports

Please continue to stay in touch for further updates on our work.

In October 2010 No To Rape made a submission to the Ministry for Community Development, Youth and Sport’s consultation on proposed amendments to the Women’s Charter. We reiterated our call for the complete repeal of Sections 375(4) and 376A(5) of the Penal Code, and also submitted that compulsory marriage preparation courses should emphasise the importance of affirmative consent in all sexual activity.

In November 2010 we received the below response from the Ministry. The reply that we sent them today is also reproduced below.

To date, given the absence of any reply to the original petition from the Prime Minister’s Office, this is the fullest statement that we have from the government on the issue of marital rape. No To Rape is continuing to work at a grassroots level to conduct research and build community report for legislative change. If you would like to be involved, please do not hesitate to get in touch with us.

Link to our original submission here. This is the response received from the Ministry:

Dear Sir/Madam

We refer to the submission by No To Rape to MCYS via the REACH website and also to Minister Vivian Balakrishnan on 5 Oct 10 regarding the abolition of marital immunity to rape in Singapore.

2 We note No to Rape’s views with regard to sections 375(4) and 376A(5) of the Penal Code. The issue of marital rape is an understandably emotive topic. Following substantial consultation and deliberation in 2006 and 2007, the Government had moved to accord wives with greater protection by expanding the circumstances under which marital immunity is lifted, but not to abolish it altogether. This is a balanced and calibrated approach which would ensure that wives who have made clear their intent to withdraw their implicit consent to conjugal relations are protected by the law. Such an approach affords the necessary protection to women whose marriages are, in practical terms, on the verge of a breakdown or have broken down, and who have clearly signalled that they are withdrawing their implicit consent to conjugal relations, so that their husbands are forewarned that marital immunity has been lifted. At the same time, husbands who have entered into sexual activities with their wives on the basis of mutual consent are protected from accusations of rape thereafter.

3 A balance needs to be struck between various interests, such as that of protecting vulnerable women and preserving the institution of marriage. The Government believes that such a balanced and calibrated approach is a better one than abolishing marital immunity altogether and will continue to retain sections 375(4) and 376A(5) in the Penal Code.

4 Public education is key in preventing family violence. MCYS, together with our partners, conducts public education on family violence, including spousal abuse, dating violence, child abuse and elder abuse. The key messages are: Violence is not acceptable and may continue to get worse; seek help early if you are or if you know someone in a violent relationship. The public is also educated on the signs of violence and the help channels which are readily available at their neighbourhood family service centre (FSC) or family violence specialist centre. In addition, efforts are also made to provide skills on conflict resolution and building healthy relationships, and strengthening families to better cope with stresses without resorting to violence.

5 On your suggestion that compulsory marriage preparation courses should emphasise the importance of affirmative consent in all sexual activity, we will consider this suggestion when evaluating the content of the courses.

6 We wish to thank No To Rape for taking the time and effort to submit the feedback.

Rahayu Buang (Ms), Senior Assistant Director (Family Policy), Ministry of Community Development, Youth and Sports

This is the reply that No To Rape sent today:

Dear Ms Buang

No To Rape would like to thank you and the Ministry for responding to our submission of 5 October 2010. We are heartened by your consideration of our suggestion that the importance of affirmative consent be a component of marriage preparation courses. However, we are disappointed that the Ministry supports the retention of Sections 375(4) and 376A(5) of the Penal Code. In our view, marital rape is not simply an “emotive topic”, but an unacceptable form of violence which threatens the physical security and psychological well-being of married women.

We are troubled by your statement that only women who have taken the specific steps listed in those subsections have “made clear their intent to withdraw their implicit consent to conjugal relations”. We urge the Ministry to consider what this means, concretely and in practice, for married couples. It means that where a woman says, “No, I do not want to have sex tonight”, or “No, I do not want to have sex unless you wear that condom”, or gives any other direct indication of non-consent, she will still be understood by the law not to have “made [it] clear”. It means that unless a wife makes certain legal applications against her husband, she is obligated to have sex with him whenever he chooses – regardless of her physical condition or her own wishes, and in particular regardless of the threat of unwanted impregnation or a sexually transmitted infection.

We agree with the Ministry that balance is important. However, we submit that the complete removal of Sections 375(4) and 376A(5) would allow a fuller and fairer balance to be struck between the interests of complainants in protection from sexual violence, and rights of defendants to the due process of law. In every matter of criminal law, the police, the Attorney-General’s Chambers and the courts must consider all the available evidence, including the credibility of the complainant’s and defendant’s accounts, before a defendant can be charged, prosecuted or convicted. Under our proposal, this multi-layered safeguard would continue to apply to all instances of alleged marital rape. By contrast, at the moment, Sections 375(4) and 376A(5) create an imbalance by providing a blanket immunity which applies in every case regardless of the specific facts. They settle the question conclusively, dismissing all complaints of sexual violence as not amounting to “rape”, however forceful the non-consensual penetration, and however clear or overwhelming the evidence of non-consent. This applies even in cases such as PP v. N (1999), where the court concluded on the evidence that a man tied his wife up and forced her to have sex with him. Despite the changes to the law considered in 2006 and 2007, a case similar to PP v. N would still fall within Sections 375(4) and 376A(5) – and therefore not be treated as marital rape – today.

We note that Section 376 of the Penal Code, which criminalises non-consensual anal or oral penetration, as well as the non-consensual penetration of a woman’s vagina by parts of the body other than the penis, are not subject to any marital exemption whatsoever, although this provision carries the same penalty as those in contention. We struggle to understand why the police, the Attorney-General’s Chambers and the courts are assumed by the law and the Ministry to be less able to thoroughly and fairly consider evidence of non-consensual penile-vaginal penetration than of any other form of forced sexual penetration. We urge the Ministry to reconsider the issue of marital immunity for rape in light of the experience of Section 376 and the application of that section to all marital relationships in all circumstances.

Thank you for your attention. Please do not hesitate to contact us if you would like further information.

Best regards
Jolene Tan, Mark Wong and Wong Pei Chi
The No To Rape core team

For now, though, here is some wonderful news. You may remember that Her World ran an excellent article on marital rape last year, featuring interviews with women who had experienced marital rape and also the No To Rape campaign. One reader’s response to this article was published as a letter in the February issue of Her World. No To Rape wishes her friend the very best.

Sometimes life plays its own tune and forces us to dance on it. My closest friend is a victim of marital rape and when she was hospitalised after the traumatic episode; your issue came just in time.

I have no words to explain how much your article on Marital Rape helped her. We advised her that she should report this matter to the police but as usual she just turned a deaf ear. But, this article changed her perspective, so much so, that she called me instantly to ask if I could come with her to the police station. I am happy that she got an angel in Her World that changed her life remarkably.

I am short of words to explain the joy and sense of relief that I saw in her beautiful green eyes. Today, she gives credit of this grand success to your magazine. She recommends the magazine to everyone and loves it to the core. You guys, helped her sail through the tough and the harsh times.

Thank you for organising this campaign that seeks to protect and fight for the rights of Singapore’s women folks. Obviously I agree with the view point that rape is rape and marriage should not also legalise rape. I’ve signed the petition as well, but perhaps a little too quickly because now there is a burning question in my mind.

The petition form requires the filling in of the NRIC number, which the site says is only for validation purposes. May I know what that ‘validation’ might be, assuming that none of the organisers are from government agencies that have access to such records. Also, how do you intend to handle these private information, especially after the campaign? And how would you ensure of zero chance of abuse?

I’ve typed in my NRIC, but a friend who also signed for the petition, told me she did not do so and her entry showed up all the same, all the more reason for my worries. If it is not necessary to input the NRIC for the petition in the first place, why the inclusion of that choice?

Our response is as follows:

Thank you for your email and for your support. We understand your concerns and think they are important ones.

We collect this information to enhance the credibility of the petition. NRIC numbers and other data are not shared with the public, but will be included in the final submission of the petition to the Prime Minister. They confirm the uniqueness of each signature and corroborate that the number of signatures is an accurate indication of the number of people who have signed up to the petition. Other methods are less reliable, e.g. one person could sign up for multiple email addresses, or someone could falsely claim to be a Singapore citizen or Permanent Resident.

Regarding preventing abuse, the information submitted in the form is password-protected and accessible only to the No To Rape core team members (three individuals) and the web designer. Data privacy concerns are very important to us, and we will act to investigate and address any complaints immediately. One indication of how seriously we take this is that we generally avoid sending even unsolicited email to those who sign the petition (the No To Rape mailing list sign-up is separate from the petition signing form).

No To Rape has started this petition because we think it is in the public interest. Unlike many of the companies that collect NRIC data on a regular basis (for example, for lucky draws in shopping centres or to give customers free gifts), we have no commercial interest in signatories or the data they provide.

If any of you has any other queries on this subject, please do not hesitate to get in touch.

[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!

Hello all. First and foremost, I would like to commend the team contributing to this cause for their effort, and dedication, to making a much-welcomed change.

I have a question though – I see that non-residents have been included in signing the petition – is/should this be allowed? Are non-residents allowed to interfere in a sovereign state’s affairs?

My perspective on this issue is that I fully support the move to ensure that Singaporeans and PRs sign the petition. However, i am not convinced that the petition would be persuasive if it contained the signatures of non-Singaporeans, especially since the petition concerns a change in domestic legislation. This is a worthy cause, and it would be unfortunate to see the petition being rejected on such grounds.

I look forward to hearing your views regarding this query.

Our response is as follows:

Thank you for your kind words and for your feedback. We understand your concerns and for those reasons we ask all signatories to specify whether they are Singapore citizens, Permanent Residents or Other. When the signatures are tallied, we will be able to give the total numbers who are Singapore citizens or Permanent Residents without including all those who have selected Other. At the same time, we appreciate and welcome statements of support from anyone.

If you have any other questions about the petition or the campaign please do not hesitate to contact us at NoToRape@gmail.com, or leave a comment on this blog.