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.

No To Rape would also like to offer our congratulations to all the nominees for the AWARE Awards, including in particular Associate Professor Chan Wing Cheong and Benny Bong of the Society Against Family Violence, who have both been speakers at No To Rape events and have done a great deal of invaluable work to address the problem of sexual violence.

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

We are disappointed that there has been no response to the voices of more than 3,600 citizens and permanent residents, speaking up for the basic right of women to be protected from violence.

Nevertheless, No To Rape continues to work at a grassroots level to build community support for legislative change. If you are involved in social work, any community organisation including religious groups, or have experience of any kind – practical, academic or any other – that you would like to contribute to the prevention of sexual violence, please do not hesitate to get in touch. If you’re not sure what sort of experience you have, but simply wish to contribute in any way you can, let us know too. No To Rape is a civic movement composed entirely of volunteers, and any connections we can make will help.

Over the next few days, we will be putting together the data collected before presenting it to our Prime Minister, Mr Lee Hsien Loong, by email and in hard copy. We will keep everyone updated on the progress of the campaign, so please continue to follow us by either signing up to our mailing list, joining our Facebook group, following us on Twitter, or simply returning to this blog from time to time.

This website will also undergo an overhaul to pave the way for future awareness raising and related issues that we will be working hard to bring to you. Stay tuned!

Once again, thank you very much for supporting our call to repeal marital rape immunity in Singapore.