The Penal Code currently provides loopholes to the offence of rape if the perpetrator and victim are married.
Section 375(4), known as the “marital rape exemption”, provides that non-consensual penetration by a man of his wife’s vagina, using his penis (“marital rape”), will not constitute the offence of “rape” except in limited circumstances.
Section 376A(5) provides a “marital rape exemption” whereby this offence is not committed by a man who uses his penis to penetrate the vagina of a girl who is under the age of 16, provided they are married to each other.
Every human being deserves the protection of the law from violence.
We propose the repeal of both Section 375(4) and Section 376A(5) so that the same penalties will be available to a court upon conviction of a perpetrator of marital rape, as with any other kind of rape.
Abolishing these exemptions will make the law consistent with criminalising violence to protect all individuals in Singapore society.
- What exactly does the Penal Code say about marital rape immunity?
- How and why was marital rape immunity introduced into the law?
- Does the immunity cover other forced sexual acts?
- Currently, should a woman report her husband for non-consensual sex, what would the authorities do about it?
- Are there exceptions where marital rape is criminal?
- Aren’t these current exceptions sufficient protection?
- Is it easy to get a Personal Protection Order (PPO) against sexual violence? Does a PPO work?
- What are the marital rape statistics in Singapore?
- What about marital rape elsewhere?
- What about marital rape law reforms elsewhere
- Is marital rape less distressing than rape by a stranger?
- What about the “conjugal rights” of men? Marriage is an institution. Isn’t sex part of that?
- How does the general public in Singapore regard marital rape?
- Isn’t marriage a private matter between spouses?
- Isn’t it hard to prove marital rape? Would this repeal lead to wrongful convictions?
- What about false accusations of rape?
- If the marital rape exemption was to be removed, could this lead to an increase in married men having affairs or soliciting prostitutes? Won’t this result in increased social ills?
- Is it possible there are religious grounds for this marital rape exemption?
- The law says that only a man can rape, and only a woman can be raped. Isn’t this gender discrimination? Why are you asking for a change that only benefits women?
What exactly does the Penal Code say about marital rape immunity?
No man shall be guilty of an offence under [relevant 375 or 376A subsections], if his wife is not under 13 years of age, except where at the time of the offence –
- his wife was living apart from him –
- under an interim judgment of divorce not made final or a decree nisi for divorce not made absolute;
- under an interim judgment of nullity not made final or a decree nisi for nullity not made absolute;
- under a judgment or decree of judicial separation; or
- under a written separation agreement;
- his wife was living apart from him and proceedings have been commenced for divorce, nullity or judicial separation, and such proceedings have not been terminated or concluded;
- there was in force a court injunction to the effect of restraining him from having sexual intercourse with his wife;
- there was in force a protection order under section 65 or an expedited order under section 66 of the Women’s Charter (Cap. 353) made against him for the benefit of his wife; or
- his wife was living apart from him and proceedings have been commenced for the protection order or expedited order referred to in paragraph (d), and such proceedings have not been terminated or concluded.
- his wife was living apart from him –
How and why was marital rape immunity introduced into the law?
This immunity is a holdover from the criminal law provisions introduced during our colonial times (which in turn stemmed from 17th century English legal cases), on the basis that marriage itself amounted to irrevocable consent to sexual intercourse by women. This is a highly dated idea that has no relevance in Singapore today, where the law seeks to be humane and just to every individual.
Does the immunity cover other forced sexual acts?
There’s no marital rape exemption should a husband forcibly penetrate his wife orally or anally. Section 376 (“sexual penetration”) recognises that a man using his penis to non-consensually penetrate the mouth or anus or someone else, or using his hands or other parts of his body to non-consensually penetrate someone else’s vagina, is an offence which is equally severe regardless of whether the people involved are married. The statutory penalties for both Sections 375 and 376 are also similar.It is therefore arbitrary and inconsistent to have exemptions in instances where the penis is used to non-consensually penetrate a vagina.
If a woman reports her husband today for non-consensual sex, what would the authorities do about it?
The charge may be reduced to “voluntarily causing hurt”, or another less serious crime than Sections 375 (“rape”) and 376A (“sexual penetration”). These lesser charges carry significantly less severe penalties.
Are there exceptions where marital rape is criminal?
There are existing exceptions, which were introduced in 2007. However, they operate only if formal legal steps have been taken towards separation or other termination of the marital relationship, or if the woman has taken steps to obtain specific legal protection, such as a Personal Protection Order against violent attack. As a result, they do not protect the majority of married women in Singapore.
Aren’t these current exceptions sufficient protection?
They are inadequate.
Individuals should be protected by the law without having to make explicit prior legal arrangements. The current marital rape immunity requires women to have taken specific legal actions before the crime is committed, in order for the Penal Code to recognise sexual violence against them as an offence.
Additionally, initiating legal procedures may be difficult for minors and women with physical or mental disabilities. Abolishing marital rape immunity will help these particularly vulnerable women receive timely help.
Is it easy to get a Personal Protection Order (PPO) against sexual violence? Does a PPO work?
No, and no.
A PPO or injunction must be obtained through facilities that are subject to operating hours, which means there can be delays of several days during which a woman cannot seek adequate legislative protection. Case studies also shed doubt that non-consensual sexual penetration is generally treated as “family violence”, resulting in a grant of a PPO1.
Research shows that 90.4% of women were assaulted more than once before they were granted PPOs2, and often those suffering from domestic abuse were less likely to know their options: up to 63% feared for their lives or those of their children, while 40% felt helpless, not knowing where to seek help3.
It is unrealistic to expect women to predict becoming a victim of rape, or to expect people who have undergone abusive experiences to take legal steps before they deserve protection from violence.
- Kumaralingam Amirthalingam, “Women’s Rights, International Norms, and Domestic Violence: Asian Perspectives,” Human Rights Quarterly: 27, 2005.
- “Divorcing Couples: a profile analysis,” Surbordinate Courts Research Bulletin: 31, Sep 2003.
What are there marital rape statistics in Singapore?
Publicly available data is unclear because marital rape is technically not a crime and social stigma prevents victims from sharing their experience. However, evidence suggests that marital rape takes place on a significant scale.
2003 saw 1,504 applications for personal protection orders with regards to family violence in Singapore4, and most orders were taken out for spousal violence against women5. Violence is unsurprisingly the second highest factor cited for women divorcing their husbands6.
Most significant in the qualitative research of this violence are recorded cases of husbands forcing wives to have sex during pregnancy7, and the case of marital rape, “PP v N”8. In that case, marital rape immunity meant that only lesser charges could be brought against the plaintiff. Although this happened before the changes in the law in 2007 (see Question 5), the same result would occur under the current law.
In the judgment for this case, then-Chief Justice Yong Pung How remarked: “an offence committed against one’s spouse should not be treated any less seriously than an offence committed against a complete stranger”. Removing the marital rape exemption is consistent with this case law.
- “Divorcing couples: a profile analysis”, Surbordinate Courts Research Bulletin: 31, Sep 2003.
- “Faces of family violence: a profile study on family violence”, Subordinate Courts Research Bulletin: 38, Dec 2004.
- “A profile of family violence”, Subordinate Courts Research Bulletin: 13, Aug 1998.
- “Public Prosecutor v N”, Magistrate’s Appeal No. 161,  SCHC 255
What about marital rape elsewhere?
Partner rapes are a significant proportion of rapes elsewhere in the world9, including the industrialised world. The British Crime Survey found 45% of rapes reported were by “current partners”10. A New Zealand study found 17% of women reported rape or sexual assault by their partner11. A 1998 survey in Australia found 40% of women aged 45-50 had been sexually abused by a former or current partner12.
- “Fact sheet on intimate partner violence”, World Health Organisation, 2002
- “Statistics”, Amnesty UK: 17 Mar 2008.
- “Partner rape”, Rape Crisis Auckland.
- “Raped by a partner: a research report”, Women’s Health, Goulburn North East: Aug 2006.
What about marital rape law reforms elsewhere?
Marital rape can be prosecuted in at least 50 countries including Austria, Belarus, Bhutan, Cyprus, Hungary, Mexico, Nepal, and the Seychelles13. Countries that have removed marital rape immunity completely — without distinguishing between marital rape and other kinds of rape for purposes or determining guilt or for sentencing — include Asian countries such as Taiwan14, Japan15, Hong Kong16, Philippines17, and more recently Thailand18.
- “Outlawing Violence”, Chapter 3, Not a minute more: ending violence against women. UNIFEM, 2003. p39.
- “China (Taiwan only)”, United States Department of State, 8 Mar 2006.
- “Japan”, United States Department of State, 8 Mar 2006.
- “Country Reports on Human Rights Practices – 2003: Hong Kong”, Consulate General of the United States, 25 Feb 2004.
- Anti-Rape Law of 1997″, Wikipilipinas, 9 Jan 2009.
- “Thailand outlaws marital rape”, China Post, 22 Jun 2007.
Is marital rape less distressing than rape by a stranger?
There is no evidence that marital rape causes less distress than other rapes. Individual variation in response applies across all sexual violence, which is why general marital immunity does not apply for other offences.
Different women react differently to sexual violence — some experience longer-term psychological difficulties, others recover sooner19. Some will be particularly distressed by marital rape because of the betrayal of trust involved (especially if they are financially dependent on their spouse and feel unable to prevent more violence). Since the specific psychological effects of rape vary between people, this is not a reliable basis for maintaining the marital rape exemption.
There are also public health consequences that are detrimental for women. If women cannot legally withhold consent to sexual intercourse with their husbands, it is impossible for them to negotiate that any penetration be conditioned on condom use (to avoid pregnancy, the spread of STDs, etc).
- “Associations between violence by intimate partners and women’s physical and mental health”, Chapter 7, WHO Multi-country Study on Women’s Health and Domestic Violence, World Health Organisation. 2005.
What about the “conjugal rights” of men? Marriage is an institution. Isn’t sex part of that?
Marriage, in most cases, involves an ongoing sexual relationship between spouses. However, this does not mean that spouses must be sexually available to each other on demand, regardless of their own feelings. If there is a longstanding imbalance of sexual expectations, this may indicate problems in a marriage, but it does not justify violence. Nor is the husband entitled to rape his wife.
Non-consensual intercourse resulting from underlying marital problems will only further alienate the spouses from each other and damage their marriage. Removing the marital rape exemption will strengthen the institution of marriage, since it reflects societal understandings that marriage is based on mutual trust and respect, rather than violence.
How does the general public in Singapore regard marital rape?
A 1993 report “Social Definitions of Family Violence in Singapore” by Choi, A. and Edleson, J L, surveyed the attitudes of 510 Singapore residents and found the following:
- 95% disapproved or strongly disapproved of the use of force by a husband if his wife refused to have sex.
- 74% considered having sex with one’s wife against her will to be assault. 93% considered assaulting one’s wife to be a crime.
- 69% considered having sex with one’s wife against her will to involve the ‘major’ use of force. An overwhelming majority — 83.8% — favoured police intervention (ranging from warning to charging to arresting the husband) in even a first-time ‘major’ assault.
- Only 11.7% considered that judges should treat wife assaults less seriously than other personal assaults. 53.4% thought they should be treated equally seriously, and 34.6% thought wife assaults should be treated more seriously.
Isn’t marriage a private matter between spouses?
The survey results above suggest that a large majority of Singaporeans consider marital rape to be an assault, which is not a private matter (see Question 13).
Removing the marital rape exemption does not interfere with a functional or even troubled marriage. It simply provides basic protection in a case where the trust and respect in the marriage have already been well damaged by the violent act of the husband.
Isn’t it hard to prove marital rape? Would this repeal lead to wrongful convictions?
Non-consent is always difficult to prove. It is unclear why non-consent would be any harder to prove in marital rape cases than in other rape cases. In any case, the Singapore Police Force is more than familiar with rape cases where the culprit and victim have a previous relationship given that – between 200520 and 200621 – “almost all rape cases involved culprits who were known to victims”. Also, as marital immunity does not apply to forms of forced sex other than penile-vaginal penetration (see Question 3), the police is clearly prepared to undertake investigations in marital sexual violence.
The police, the Attorney-General’s Chambers, and the courts must consider the evidence available in order to determine whether someone accused of an offence merits a conviction. Insufficient evidence to prove the offence beyond reasonable doubt in a court of law should result in acquittal. But the effect of Section 375(4) and Section 376A(5) is that even in cases where evidence of guilt is clear, it will not be considered rape (e.g. PP v N — see Question 8).
- “Statistics”, Crime Situation 2005, Singapore Police Force.
- “Statistics”, Crime Situation 2006, Singapore Police Force.
What about false accusations of rape?
Our police and legal system are wholly capable of determining guilt based on sufficient evidence (see Question 15).
Moreover, considering the societal stigma still attached to being a rape victim, there is in fact a strong disincentive to make false reports. Making a false allegation of rape is an extreme step which would destroy a marriage — it is unlikely that most people would do this lightly. There is limited advantage to be gained in divorce proceedings from making a false criminal report. Even if this were a factor, it would suggest that the marital rape exemption is more appropriate where couples intend to separate, which is the opposite of the current exceptions to Section 375(4) and Section 376A(5).
If the marital rape exemption was to be removed, could this lead to an increase in married men having affairs or soliciting prostitutes? Won’t this result in increased social ills?
There is no evidence of this. Even if it were true that granting men license to non-consensually sexually penetrate their wives would prevent these phenomena, it is not possible to justify sexual violence in this way. Every person’s right to be free from violence is fundamental. It should not be compromised in the hope that allowing one person to be beaten will prevent another person from making bad decisions. Those who object to adultery by men should censure the behaviour of the adulterer, rather than allowing his wife to be subjected to violence.
Is it possible there are religious grounds for this marital rape exemption?
It has been suggested that the marital rape exemption exists in order to strike a balance between visions of marriage as a “sacred” institution and visions of marriage as a “secular” institution. However, Singapore is a secular society. Our laws are not dictated by religious doctrines but rather by our shared values and interests. Various religious leaders in Singapore also support removal of marital rape exemption, for example:
Bhante Dhammika of the Buddha Dhamma Mandala Society:
…Marital violence, including marital rape, would be completely contrary to everything the Buddha said concerning the ideal marriage – that a husband and wife should ‘honor and respect’ each other, that they should ‘come together in harmony and out of mutual affection’ and that one should ‘cherish one’s spouse and child’…
The Reverend David Burke of Orchard Road Presbyterian Church:
The Apostle Paul teaches that husbands and wives are to treat each other with respect and mutuality […] Forcing her to have sex (whether physical, verbal or emotional force) is incompatible with this. [Marital rape and other rape are both] severe forms of wrongdoing that are sins against God and a harm to the woman involved. Both violate the woman and both involve the use of force to inflict the man’s selfish desires in a most personal area. Neither is compatible with the Christian faith.
The No To Rape petition has also been signed by religious leaders including Father Paul Staes of the Catholic Church and the Rev. Dr Yap Kim Hao.
The law says that only a man can rape, and only a woman can be raped. Isn’t this gender discrimination? Why are you asking for a change that only benefits women?
At the moment, the only exemption is for marital rape, i.e. non-consensual penetration of a woman’s vagina by a man’s penis.
In all other instances, “rape” under Section 375 and “sexual penetration” under Section 376 cover, between them, all non-consensual sexual penetration of any person by any person, including the possibility of non-consensual penetration of a man by a woman. All these forms of penetration carry the same penalties.
We believe all non-consensual sexual contact should be treated as a violent offence under the criminal law. There are debatable reasons why non-consensual penetration of bodily orifices should be treated more severely than other kinds of sexual violence as it is invasive in nature. However, we would welcome greater study and information as to the experience of non-consensual penile-vaginal intercourse carried out by women against men, with a view to expanding the definition of rape to include this form of behaviour if the testimony of male victims supports such a change.