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Commentary: What took us so long to move against marital immunity for rape?
The journey towards a potential abolishment of marital immunity for rape, as part of a review of the Penal Code, raises questions about how our laws evolve to keep up with society’s values, say three activists.
A woman at a cross junction. (File Photo: AFP/Fred Dufour)
SINGAPORE: In Singapore, it is not treated as rape if a man forces his wife to have sex – but this is set to change.
The journey towards this important piece of progress raises interesting questions about the approach of our laws towards questions of values and rights.
This week, the Government announced its intention to abolish marital immunity for rape in a review of the Penal Code, bringing Singapore in line with international legal norms including those of Hong Kong, Thailand and the Philippines.
Said Minister for Home Affairs K Shanmugam this week in response to one of the many recommendations put up by a committee involved in the Penal Code review:
I’ve thought it odd that we still have immunity for husbands who rape their wives. A woman’s body is her own. And even if she’s your wife, she’s entitled to say no - and no means no.
This long-awaited reform has been presaged by more than a decade of efforts by many Singaporeans who raised the issue in the 2007 Penal Code review, which resulted in limited recognition of marital rape where the couple is separated or the wife has a personal protection order.
READ: Behind closed doors: Rape and marriage in Singapore
The issue has since gained traction as public awareness increased. In 2009, we launched the No To Rape campaign with a group of non-affiliated volunteers, calling for total abolition of the immunity.
Women’s groups – including a coalition of 13 local non-government organisations who issued a report on gender equality in Singapore last year – have likewise been vocal on this issue.
READ: Marital rape, voyeurism to become offences in ‘sweeping’ changes proposed for Singapore’s penal code
DEFENDING MARITAL RAPE IMMUNITY ILLOGICAL
The defences of marital immunity raised in 2007 and since have fallen along broadly two lines. First, it has been asserted that societal values pertaining to marriage and “conjugal rights” necessitate such immunity. Second, there were concerns about abuse by vindictive wives.
The concern about vindictive complaints is a plainly illogical and inadequate basis for even partial immunity, as the Penal Code Review Committee’s report now accepts. Other sexual offences have no marital immunity, including "sexual assault by penetration" of other kinds than those covered by the rape offence, and which carries the same maximum penalty as rape.
If wives wished to make vexatious complaints, that route has long been open to them under that offence, but in reality there is no evidence that they have done so.
READ: In marital rape, proving lack of consent a 'complicated' issue, lawyers say
More troubling and persistent has been the argument about values - that doing away with marital immunity would change the complexion of marriage to the detriment of marital relationships and the expression of intimacy.
But marital immunity for rape is utterly and surely unarguably repugnant to our values as a society, which sees every person as equally deserving of protection from violence. In this context, are we to accept the claim that the law as it stood actually reflected what most people around us believed?
READ: For women of different cultures, classes, backgrounds and age – it’s still a man’s world, a commentary
SOCIETAL VALUES HAD ALREADY EVOLVED
We did not think that most people believed that women were obliged to provide sex on demand within a marriage in 2009 when we started our campaign. Nor did we think they believed that men who forced themselves on their wives should be immune from accountability under the law.
The idea that most people supported such views was an empirical question for which we saw little evidence, whether in the form of surveys or even the ordinary experience of discussing sex and marriage with those around us.
It was our belief that a petition would enable ordinary people to make their beliefs clear, and dispel the myth that people had a deep attachment to marital immunity for rape.
Although 3,600 signatories may seem unimpressive today, in 2009, online petitions and other internet-enabled citizen activism – by a group of unknown individuals, no less – were relatively new, and it was no mean feat getting heard.
More significantly, most people we encountered in the course of our campaign had never even heard of marital immunity for rape, and were shocked and appalled when we explained it to them. To be sure, we also faced some opposition and resistance, but overall there was certainly no clear pattern of commitment to marital immunity.
ROOTED IN INERTIA, IGNORING EARLY SIGNS
It seems likely that this law, far from being rooted in deep societal consensus, persisted mostly out of inertia. We inherited marital immunity from the colonial British codification of common law – yet in England, it was abolished in 1991.
The archaic idea that marriage itself was deemed to be a state of irrevocable sexual consent between spouses is not in keeping with how most Singaporeans view marriage and intimate partnerships as being built on mutually respectful and loving bonds.
As early as 1993, NTU researchers Jeffrey Edleson and Alfred Choi published findings of detailed interviews with a nationally representative sample of over 500 Singapore residents and found that huge majorities strongly disapproved of a husband using force if a wife refused sex (95 per cent) and saw having sex with a wife against her will to be assault (74 per cent) involving the major use of force (69 per cent).
Only a tiny number (11.7 per cent) believed that judges should treat wife assault cases less seriously than other personal assault cases.
No doubt there is a commonly held belief that sexual relations in marriage are sacred or distinct from other forms of sexual relations, and this belief can be given expression in many ways, some better than others.
But this belief is not universal, and to express it by codifying marital immunity for rape is to trample upon another, more fundamental and inviolable value of society, which is the right of every person to live free from violence and to enjoy bodily autonomy – including the absolute right to say “no” to sexual activity with anyone at any time.
READ: Gender equality is not just a 'women’s issue', a commentary
LESSONS FOR SOCIETY
There is an important lesson here surrounding the discussion of values. Societal perceptions and values often contain elements that are in tension. But a key part of principled and intelligent leadership is the ability to bring these into a coherent whole which better reflects and promotes the most unifying, inclusive and fundamental values.
Moreover, in Singapore people often look to figures of authorities for guidance – including what the law prescribes.
In this context, the very persistence of marital immunity for rape itself legitimised the notion of women’s subservience in marriage and the downplaying of sexual violence.
And on this issue of sexual violence, the law sustained the values it rested upon, rather than merely neutrally reflecting societal values. But there is a two-way exchange between law and societal values – each shapes the other.
Because of the importance of leaders and leadership, institutions, from government agencies to employers and educational institutions, must play their part in proactively protecting the rights of vulnerable groups, ensuring that our people’s access to equality, as well as their own well-being and personal safety, is preserved.
If you are a leader or person of influence within your organisation, take a strong and unequivocal public position against the concept of gender-based violence.
Put in place safeguards against abuses, and remove barriers to the reporting and investigating of offences. Deal firmly with perpetrators, and actively foster norms and practices that protect your constituents. There should not be a need to wait for public opinion to tell you to do the right thing.
READ: Address our bias in the pursuit of gender equality, a commentary
PROGRESS IN FIGHTING SEXUAL VIOLENCE
Formal recognition of marital rape as an offence will be a key step in enabling victims and survivors to initiate the due process of seeking legal accountability from perpetrators.
Beyond this change in the law, victims and survivors must be able to access resources across a range of options, financial or otherwise, to mitigate potential disruption to their home life and receive emotional support for trauma.
We hope that it will also enable authorities and support organisations to build a clearer understanding of spousal rape and other intimate partner violence, to respond more effectively to survivors’ needs. These issues have far too long been shrouded in secrecy and stigma.
Wong Pei Chi, Jolene Tan and Mark Wong are involved in the No To Rape Campaign.
