Behind closed doors: Rape and marriage in Singapore

Behind closed doors: Rape and marriage in Singapore

In June, Singapore said it was actively working towards repealing a law that exempts husbands from being charged with raping their wives. Melissa Zhu takes a closer look at the origins of this legal exemption and the possible implications of removing it.

Will criminalising marital rape alter the institution of marriage for better or for worse?

In June, Singapore said it was "actively working towards" repealing a law that exempts husbands from being charged with raping their wives. Melissa Zhu takes a closer look at the origins of this legal exemption and the possible implications of removing it.

SINGAPORE: They married in February but by November the following year she had moved back to her parents' home, taking their two-year-old son with her.

She suggested a divorce when they were estranged. He threatened to kill her.

A few weeks later he asked to meet, promising a peaceful talk. But they ended up quarrelling again and the 21-year-old navy regular dragged his wife into his car before driving back to the apartment they shared.

In their bedroom, he bound and gagged her. Then he had sexual intercourse with her against her will.

Hearing an appeal on the case in Singapore's highest court in 1999, the Chief Justice said the man had behaved like an “uncivilised savage”.

"Spousal violence should not and will not be tolerated as a normal part of marital life," then-CJ Yong Pung How commented.

He called an earlier sentence of a S$4,000 fine by the district judge "manifestly inadequate", and said an offence committed against one’s spouse should not be treated any less seriously than one committed against a complete stranger.

Still, the law dictated a man could not be guilty of raping his wife unless she was under 13 years old.

A total of 18 months' imprisonment was added to the sentence – for voluntarily causing hurt, wrongful confinement and criminal intimidation. The maximum penalty for rape is 20 years.

SHROUDED IN SILENCE

The head of one law firm's family law department told Channel NewsAsia that in more than 25 years of practice, he has never seen a single client accusing his or her spouse of any sort of sexual assault.

"I think there’s a reason why we hardly hear about it: I don’t think any spouse, particularly a wife who has been raped, would raise an issue. Everybody knows it’s currently not a crime and therefore they don’t bring it up," PKWA Law Practice's Lim Chong Boon said.


Under Singapore's Penal Code, the definition of rape does not apply if the woman is the perpetrator's wife, unless she is less than 13 years old.

The same marital immunity applies to a separate section of Singapore's law that makes it a crime to sexually penetrate a minor below the age of 16 – meaning it is not a crime for a man to have sexual intercourse with a minor aged between 13 and 16 years old, even without her consent, if she is his wife.

The minimum age for marriage in Singapore is 18 years if there is consent from parents or a legal guardian, and 21 years old without.

Gender equality advocacy group AWARE's senior programmes and communications manager Jolene Tan pointed out that the way the law is worded, however, means marital immunity for rape could apply to teenage wives in Singapore who married abroad. While she said she did not know how many minors in Singapore might find themselves in such circumstances, "arguably even one case is too many and it is quite shocking that the law goes out of its way to offer immunity in these circumstances".

If there are victims out there, though, most of them choose to stay silent.

Benny Bong, a family and marriage counsellor with more than 30 years of experience, said it was hard to track how many women have had their husbands force sexual intercourse on them.

“There is the issue of wanting to come forward and also the issue of saying: 'I am a victim of a crime that does not exist’.”

Mr Bong has spent most of his career fighting against family violence. He helped found the Society Against Family Violence about 25 years ago and participated in the dialogue that would later shape the amendments to the Women's Charter in 1996. Five years ago, he was the first person to receive the AWARE Hero Award for his work in preventing family violence and violence against women.

In the course of his work, Mr Bong says he has seen a number of women who have experienced sexual violence by their spouses. "But I never made it a point to specify whether this constituted rape, as I always felt it was a technical point ... The fact is they feel violated, they feel that they cannot protect themselves and there is no provision in the law with regard to what was happening."

Anecdotally, other family counsellors and social workers said they had met women whose husbands had forced sexual intercourse on them, but none of these cases ever made it to court. Service providers are "definitely encountering" such cases, but the number is "small and it changes", Ms Tan said.

The counselling supervisor and coordinator of Grace Counselling Centre, Kirby Chua, estimated he sees an average of five married couples a year where one partner had forced sexual intercourse on the other. In all these cases, any legal intervention was "off the table".

For many couples, the abuse would have gone on for between half a year to two years before they sought counselling with some of the victims telling him that they had been "living in fear", according to Mr Chua.

Perhaps muddying the waters further is the fact that sexual abuse hardly ever takes place within a vacuum. Senior social worker Adisti Jalani from the Centre for Promoting Alternatives to Violence (PAVE) – the oldest of Singapore's three family violence specialist centres – says her experience is that it is often accompanied by other, more commonly recognised types of abuse such as physical or verbal abuse.

"It's not the always the first thing they would say in an application for a personal protection order (PPO) or when seeking help. It would be 'my husband hit me, or my husband emotionally abuses me' ... But then also: 'He forced sex on me or he made me do certain things I don't like'."

While the victims are willing to share their stories with social workers, they would tend to omit the sexual abuse in their reports to authorities as they know it will be read aloud in court, she added.

There are no official statistics on how often marital rape cases are reported. Last year, there were 161 total rape cases reported to the police, compared to 164 in 2014 and 120 in 2013. The Singapore Police Force said there was no breakdown for the number whose alleged rapists were their husbands or someone they knew.

The Ministry of Social and Family Development (MSF) said in a parliamentary response in March this year that the family justice courts granted an average of about 1,200 personal protection orders annually in the past five years, most of which were made by women against their husbands or ex-husbands.


MARITAL IMMUNITY FOR RAPE: ORIGINS AND DEVELOPMENTS

To date, the case detailed at the start of this story – known as PP v N – has been the only instance where marital immunity for rape has been evoked in Singapore's courts.

The legal exemption of married couples from Singapore's rape law dates back to a statement by Sir Matthew Hale, Chief Justice of England from 1671 to 1676.

In his posthumous treatise on British criminal law, "The History of the Pleas of the Crown" (1736), Lord Hale wrote that husbands could not be guilty of raping their wives as women irrevocably gave consent for sex with their husbands through marriage:

"The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."

The statement, which lived on in English common law for centuries, also influenced the laws of other countries with British links, such as Singapore.

Some qualifications to marital immunity for rape were added to Singapore's law with the Penal Code (Amendment) Act 2007 enacted in February 2008. The Act specified that marital immunity could be lifted in certain cases including where the couple had been living apart and the wife had applied for a divorce, separation or a PPO before the alleged offence.

But in a summary of the amendment released to the public in September 2007, MHA said the total abolition of marital immunity would be "too radical a step".

"There is still a need to strike a balance between the needs of women who require protection and the general concerns about conjugal rights and the expression of intimacy in a marriage. Abolishing marital immunity may change the whole complexion of marriage in our society."

The amendments provide "the necessary protection for women whose marriages are, in practical terms, on the verge of a breakdown or have broken down, clearly signalling that her consent to conjugal relations has been withdrawn," it added.

A "SIGNIFICANT ANNOUNCEMENT"

The Universal Periodic Review (UPR) by the United Nations Human Rights Council assesses the human rights records of all 193 UN member states every four-and-a-half years.

During Singapore's second UPR on Jan 27 this year, 113 countries spoke on the Republic's human rights policies. Four of them – Spain, Belgium, Colombia and Canada – recommended it criminalise marital rape, which the UN Higher Commission for Human Rights had declared a human rights violation in 1993.

Heading the Singapore delegation at the 2016 UPR, Ambassador-at-Large Chan Heng Chee said Singapore had a strong position on gender equality and would "actively review" the need to repeal marital rape immunity.

In the report presented by Singapore at the UN Human Rights Council session five months later in Geneva on Jun 24, the country appeared to take a further step forward.

Responding to the recommendations relating to the criminalisation of marital rape, the Republic said in the report: "There is a robust legislative framework that criminalises acts of domestic violence and acts of violence against women ... We are also actively working towards repealing marital rape immunity."

As a Nominated Member of Parliament (NMP) in 2013, Eugene Tan had questioned whether married women were put in a vulnerable position legally because marital rape was not a criminal offence.

Delving into the language in the UPR report, the associate professor of law at Singapore Management University said the Government's wording appeared to be a less equivocal position than it has put forth in any previous public articulation.

When Mr Tan raised the question in Parliament three years ago, then-Second Minister for Home Affairs S Iswaran had responded that the country's laws on marital rape should "reflect the norms and values in society", and that both MHA and MSF were "currently reviewing" the issue, which was “given adequate priority in the ministry’s work”.

Mr Tan said that Singapore's report to the UPR suggests "that the repealing of immunity for marital rape is not so much a question of whether the law ought to be completely repealed but that it is more a question of when it would be repealed".

But he had a caveat: "I would not say it is a definitive stance that immunity for marital rape is on its last legs in Singapore. It may still be some years away."

The former-NMP's cautious optimism was shared by Braema Mathi, president of MARUAH, Singapore’s working group for the ASEAN human rights mechanism.

"It’s wonderful they’re willing to move forward and therefore we are saying it’s great, but now we’ve got to explore it more carefully.”

Ms Braema said the human rights organisation hoped that the Government would engage stakeholders such as NGOs, married couples and counsellors on the definition of marital rape and associated terms such as consent and coercion.

AWARE's Ms Tan was present at the UN session where the report was adopted, in her capacity as a spokesperson for AWARE along with other members of civil society.

"We welcome the possible repeal of marital immunity for rape. We urge that its abolition is total and unqualified, for both rape and the offence of sexual penetration of a minor under 16," Ms Tan had said in her speech at the session.

She later told Channel NewsAsia the wording of the report on the issue was "definitely the most significant announcement that (the Government) has had so far" and that it sounded more decisive than anything the authorities had said previously.

As to why the Government might be reviewing its stance in its comments in the UPR report, Ms Tan said she hoped it reflected that public support for the repeal was being recognised.

"I notice that there is more public discussion than there used to be … and obviously with both the UPR and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) reviews this is something that the state has had to repeatedly defend its position on."

When contacted for more details on Singapore's position on marital immunity for rape, an MHA spokesperson said the ministry and MSF "are reviewing the subject of marital rape immunity".

LEGAL POSITIONS OF COUNTRIES AROUND THE WORLD

When it comes to laws on forced sexual intercourse within marriage, countries run the gamut from completely exempting husbands from rape law to explicitly criminalising marital rape. Singapore now falls somewhere in the middle.

Western and European countries were some of the first to criminalise marital rape: The UK completely repealed marital immunity for rape in 1991, and all 50 states in the US had criminalised marital rape by 1993. It has also been recognised as a crime in countries such as France, Switzerland, Australia, New Zealand and Canada.

More recently, several Asian countries such as Thailand, the Philippines and South Korea have also outlawed marital rape.

But Singapore is not the only one with the midway position of retaining marital immunity while waiving it for some cases. In Sri Lanka, marital rape is only a crime if the court has ordered a spousal separation. This was also the position of the law in countries such as the US and UK for some years before they completely abolished the immunity.

Another way that countries have chosen to deal with the issue is to create new laws to criminalise forced sexual intercourse within marriages without penalising them as rape. A new law introduced in Malaysia in 2007 made it a crime for a man to cause hurt or fear of death to his wife to have sexual intercourse with her, with a punishment of up to five years' imprisonment compared to up to 20 years and caning for rape.

Key developments in marital immunity for rape in Singapore and other countries:

"PROVING" THE BREAKDOWN OF A MARRIAGE

Due to the presumption of intimacy within marriage, concerns about how to prove marital rape have been cited by authorities as a barrier to criminalising it more than once.

In responding to Mr Tan in Parliament in 2013, Mr Iswaran said assertions of marital rape were hard to prove "because of the intrinsic nature of a marital relationship".

Speaking at the UPR this year, Ambassador-at-Large Chan Heng Chee also said the 2007 amendments to the law made it an offence for husbands to engage in non-consensual sexual intercourse with their wives "where there is evidence of a breakdown in their marital relationship".

Mr Tan noted that one of the Government's main objections to repealing marital rape immunity was with evidence at a process level: "The authorities have to be convinced that it is possible evidentially for one party to have clearly signalled her or his withdrawal of implied consent to a conjugal relationship."

But Mr Lim, the lawyer, said he foresaw some problems in trying to prove this. "The husband can easily say that consent was given; in a non-marriage if you're in the same hotel or same room, it's conceivably easier but it'd be so difficult in a marriage, I imagine, to show that there was no consent at a particular point of time."

He added: "I support the abolition of marital immunity in the sense that rape is also violence ... but I just wonder how you're going to prove it."

Yet, Mr Lim agreed the same concerns might apply to proving sexual offences between dating couples, or other types of sexual assault between married couples that did not constitute rape, although he had not seen any such cases either.

Touching on this point, Ms Tan said it was "puzzling" there was no blanket marital immunity for all sexual assaults and it only applied to rape in its definition of non-consensual penis-in-vagina penetration. For instance, a man who non-consensually digitally or orally penetrates his wife would still be liable for sexual assault with penetration under a separate section of the law, which carries the same maximum penalty of 20 years' imprisonment, a fine and caning as rape.

"The fact is that consent is defined in the law and applies to all sorts of sexual relations. The same analysis and consideration of evidence can be applied here," she said.

"So if the claim is that women are going to go all-out and sabotage their husbands, the fact is that they already have the power to do so under other sections of the law ... I think that this idea that there would be many ‘vengeful’ reports is not borne out by reality.”

Under Singapore law, the penalty for knowingly making a false accusation to injure someone is up to seven years' imprisonment and a fine.

As for whether the 2007 amendments were a good gauge of evidence to prove the marriage had broken down, the senior manager emphasised that this was "not satisfactory".

She pointed out that while PP v N was before the 2007 Penal Code amendments, the case would probably still be decided the same way if heard today as the couple were only living apart and had not commenced any legal proceedings to separate.

"So it’s just not true that marital rape only happens in the circumstances laid out in the exemptions," she said.

"Everybody should be protected from violence and it shouldn’t fall on you to fill out paperwork before your right to live free from violence is recognised."

CHANGING THE INSTITUTION OF MARRIAGE?

Another fundamental concern when it comes to criminalising marital rape, as raised by the Home Affairs Ministry in 2007, is the institution of marriage and how it is understood by Singapore society.

Mr Chua said as a Christian counsellor, he was himself "very torn" about how he felt about abolishing the marital immunity for rape because marriage was a "sacred sacrament" to him.

"I think the law should be very, very careful about the definition of marital rape," he said.

On the flip side, Ms Braema said she thought criminalising marital rape would change how the institution of marriage is viewed but in a positive way.

“I think actually it would strengthen the family institution because then people would know that marriage is a union that gives both parties respect not only in the activities of daily living but in areas of such intimacy as having a sexual relationship."

Ms Tan said the legitimisation offered by the law remaining as it is could work to shape the way people negotiated their relationships. For example, she had heard of at least one case of husband using the marital immunity for rape to threaten his wife.

"Just symbolically, many women have told us they feel outraged and devalued by the existence of this law. That’s a factor worth considering, quite aside from how many cases actually get charged," she added.

And making a passionate argument against using the institution of marriage as a defence against criminalising marital rape, Mr Bong said doing so would be "offering a hurtful action to be condoned".

"If there is an instance of marital rape, I would say the guilty party shows no regard for that exact family institution – why should we protect an institution he has no regard for?"

"I think the Government is rightly concerned about the state of the family but they have to be very careful that in trying to protect it, they are not undermining some of the basic rights of its citizens," he continued.

"Whether family members or not, if it is your basic right to be safe and free from harm and danger then you should insist on that. We shouldn’t insist on preserving the family above and beyond one’s right to safety."

BEYOND THE LAW

Seven years ago Ms Tan was one of the individuals behind a campaign, No To Rape, which sought the abolition of marital immunity for rape with a petition that garnered more than 3,600 signatures between July and November 2009.

One reason the petition was started, according to her, was to address the Government's suggestion that there were societal views that supported the law the way it was.

"But actually, most of the time when you engage people on it the primary response is: ‘I had no idea, this is terrifying.’"

When asked why something like forced sexual intercourse would take place within a marriage, Mr Chua described it as a "control issue" that was more likely to occur in marriages that were already in trouble.

"It’s something unique in Singapore that there are a lot of couples here that no longer happy or speaking to each other, staying in different rooms, but they’re still married ... This issue doesn’t get reported by ‘happy' couples," he said.

Mr Bong also said many men not only see their relationships with their spouses from the perspective of being with someone they love and care for, but perceive the relationship as something they possess. "Some men do guard that relationship very jealously, to the point of becoming overly protective – thus the violence."

The president of a support group for Muslim men with about 200 members said the predominant belief in the community was that "if the man wants to 'do', the woman does not have the right to say 'cannot' because her role is to oblige her husband."

Head of the Association for Devoted and Active Men Abdul Mutalif Hashim expressed that he thought this belief should change. "People also have to look at the current context, where women are working, where they also have a lot of responsibilities, and men must understand not just by looking at the law but looking at the responsibilities and context. They need to be educated so they know that actually, there's no forcing."

Several others also told Channel NewsAsia they thought amending the law would be insufficient if it was not supported by public education.

Noting that there are likely to be cases that remain unreported by victims, marriage specialist Elvira Tan from pro-family charity Focus on the Family said it was important for wives "to be educated and empowered to not tolerate any kind of abusive behaviour and seek external help and support early".

"We need to continue to focus upstream on helping to strengthen marriages so that they do not end up loveless and selfish, where sex is forced and rape is perpetuated by the very person who is supposed to love them," she said.

AWARE's Ms Tan emphasised the importance of teaching young people about the importance of consent in any kind of sexual activity, and inculcating the concept that "marriage isn’t some kind of magic dividing line that takes away the need for consent".

"Building in respect for other peoples’ boundaries as a sort of foundational part of how we see sexual activity is definitely something I think our education system can do better," she said.

Addressing the question of whether Singapore's society would accept the criminalisation of marital rape, Mr Bong said he foresaw a "huge outcry" if social attitudes did not change.

"Some men will say: ‘Oh then I can’t have sex with my wife? What’s the point of getting married?’

"Public education needs to be clear – we’re not saying you can’t have sex, we’re saying that the most meaningful relationship between a man and a woman is a consensual relationship. It has to be clear that just because she’s your wife, it doesn’t mean she loses all rights to herself and her body.”

Source: CNA/mz