The situation that immunity from prosecution for marital rape raises serious concerns. Marital rape immunity prevents a husband from being prosecuted under an offence of rape unless certain conditions are being met. The law on rape is provided under Section 375 of the Penal Code. The definition of Rape is the penetration of the vagina of a woman by a penis without the consent of the woman. If the case involves a woman under the age of 14, the penetration of her vagina by a penis, whether or not there was consent, would still be regarded as rape. This is colloquially termed as “Statutory Rape”. Therefore, what we can conclude from here is that only males can commit the offence of rape.
Rape carries a maximum jail sentence of 20 years, plus caning. This immunity means that husbands are completely let off the hook for such acts. In a previous case involving non-consensual sex between a married couple, the husband was protected by this immunity, so he was only charged for voluntarily causing hurt for his outrageous act to his wife, and was sentenced to a mere 18 months in prison. This is definitely a mere slap on the wrist for a serious crime.
As of today, the law provides immunity for husbands from the offence of rape under S.375(4) of the Penal Code and a husband shall not be guilty of the offence of rape unless during the non-consensual sexual intercourse, the following exceptions are satisfied:
- The wife was living apart from the husband under an interim judgment of divorce or nullity, under a judgment of judicial separation or if there is a written separation agreement;
- The wife was living apart from the husband and proceedings for divorce, nullity or judicial separation have been commenced and are in progress;
- If there was an injunction ordered by the court restraining the husband from having sexual intercourse with the wife;
- If there was a protection order or an expedited order made against the husband by the wife;
- If the wife has been living apart from the husband and proceedings for protection or expedited order have been commenced against the husband and the proceedings are still ongoing.
If the above exceptions are not satisfied, the husband, who would be otherwise guilty of an offence of rape, cannot be charged for rape and therefore would escape the harsh punishments prescribed by the law. The punishment for rape is an imprisonment term which may extend to 20 years and a fine or caning. The punishment can be exacerbated if, while carrying out the offence of rape, the offender causes hurt to or intimidates the victim. In such a situation, the offender may be charged with an aggravated form of rape which attracts an imprisonment term of not less than 8 years and not more than 20 years and canning of at least 12 strokes would also be mandatory.
The current Penal Code Review plans to eradicate this martial rape immunity entirely.
Why is there a need to revoke marital rape immunity in Singapore?
In the recent Penal Code Review by the Ministry of Law, the Penal Code Review Committee (PCRC) recommended that marital rape immunity should be abolished. This recommendation was based on the principle that all women should be protected from sexual abuse, regardless of their marital status or the identity of the perpetrator.
The PCRC also took the view that the majority of our population no longer subscribe to the belief that a wife had irrevocably surrendered herself to sexual intercourse with her husband upon marriage.[1]
What took us so long ?
In 2007, many members of Parliament expressed the view that societal views about marriage necessitated such immunity. Also, there were concerns that the removal of this immunity could lead to abuse of the law by vindictive wives.[2]
So why now? Activists in Singapore have long called for the eradication of this immunity. After the debate in 2007, more evidence has emerged to prove that societal attitudes in Singapore do not support retaining marital rape immunity. In a survey done by the No To Rape campaign in 2009, it was found that most people surveyed on their attitudes toward marital rape immunity had never even heard of this concept, and were appalled at the presence of such a law.
Within the international community, marital rape immunity has long been condemned for being incompatible with the United Nations’ sustainable development goals (SDGs). The SDGs require members to achieve gender equality and empower all women and girls. By allowing for marital rape immunity, women are no longer to seek redress against their rapists even though the sexual intercourse occurred without their consent. Specifically, the United Nations Declaration on the Elimination of Violence against Women refers to marital rape as a form of violence against women.
What are the implications?
First, women in abusive marriages would be more willing to seek help for their situation immediately instead of having to take the intermediate step to initiate legal action in the form of divorce proceedings or seeking a protection order. This would go to aligning Singapore’s laws with the United Nations’ SDGs in empowering women.
Second, it sends a signal that Singapore no longer subscribes to the archaic view that women are viewed as chattel owned by their husbands. This immunity is based on the patriarchal notion that women are owned by men. Eradicating this immunity would promote the idea of gender equality in society. Spouses would be equally respected and wives would not be in fear of doing things against their will.
Third, it helps to propel Singapore into the direction of gender equality and neutrality through reflection of this in its laws. The marital rape immunity is ingrained with an idea that men are superior than women in the sense that they can get away with heinous crimes without facing the consequences had they done this act outside of the institution of marriage. With the removal of this immunity, women would not be seen as a submissive being subject to their husband’s every whim.
However, there still exists the concern that wives would take advantage of this change in legislation by bringing in the threat of criminal prosecution into their private relationship with their husband, which most would argue is part of the private realm. In general, relationships which belong in the private realm ought not be controlled by laws. Also, absence of consent in sexual relations between a married couple may be more complex to prove than between unmarried couples, because there exists a conjugal relationship between the couple.
Still, the argument still lies in favour of repealing this marital rape immunity. It is evident that immunity from the offence of rape raises a big concern today as it not only condones the act of forcing sex against a married woman’s free will, it also opens the Pandora’s box of domestic violence. The availability of more protection for women far outweighs the possibility of abuse and the difficulty of proof of consent. Furthermore, it is trite law that the person who alleges must prove beyond a reasonable doubt. Therefore, the burden would be on the wife to prove that the sexual activity is no-consensual. To abolish the immunity from marital rape would be to finally recognize that women, regardless of their marital status, are equally the masters of their own mind and body.
Further, the abolishment of this immunity in numerous other countries around the world, including India, United Kingdom and Hong Kong, shows that all these worries are unfounded. It is long overdue for Singapore to follow suit.
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This article is written by Xavier Lim from Phoenix Law Corporation and edited by Gladys Yeo from Asia Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.