SINGAPORE: It will be challenging to prove a lack of consent in cases of marital rape, criminal lawyers said, pointing to the intimacy associated with marriage and the fluid nature of consent.
As part of sweeping changes to the penal code, a review committee had on Sunday (Sep 9) proposed abolishing marital immunity for rape, garnering praise from women's rights groups and members of the legal community.
But Mr Ramesh Tiwary, a criminal lawyer who runs a solo practice, told Channel NewsAsia that proving rape in a marriage adds "certain complications to what exactly is consensual, and how clear must that consent be".
“If you had a continuing and lengthy relationship like a marriage, I think you’ll have greater complications (than in other types of relationships),” he said. “Are you supposed to get consent from your wife every time?”
Hilborne Law managing director Rajan Supramaniam said lack of consent in a marriage is difficult to prove because of the "sexual intimacy" within the relationship.
"Whatever transpired is very private between them and that makes it difficult to find the truth," he added.
Another concern, the lawyers said, is the retracting of consent following a "trigger factor" like a heated argument.
"The wife might put up with a certain behaviour, but when something else happens, she might raise it as an offence," Mr Tiwary said.
Mr Sunil Sudheesan, who heads the criminal department at Quahe Woo and Palmer, said it "has always been tricky" to determine if sex between parties in a relationship was consensual.
"Because it’s anybody's say as to whether there was consent or not if there are no injuries," he added, stating that lawyers would usually look for "objective identifiers" like the use of force.
PROVING MARITAL RAPE
Ms Corinna Lim, executive director of the Association of Women for Action and Research (AWARE), acknowledged the difficulty of proving rape in cases involving partners who share an intimate relationship due to a "much heavier focus on consent".
However, she said that marital rape cases could present a different set of corroborating evidence, which includes a history of domestic violence.
"Timely medical examination, witness testimony, eyewitnesses before or after the assault, secondary witnesses and possible admission by perpetrator on texts can all help to secure conviction like any other sexual assault case," she added.
"Just because it is difficult to prove, we cannot ignore a crime."
Still, Ms Lim said cases of marital rape might go unreported because of the "deep misconceptions and stigma" that continue to surround any kind of sexual violence.
"Many also still harbour outdated gender roles and expectations, believing that a husband is 'owed' sex from his wife," she added.
Furthermore, marital rape victims might choose not to speak up "for the sake of their children and to keep their family intact", said Singapore Council of Women's Organisations 1st vice-president Junie Foo.
"Shifting mindsets will take time and education," she said. "The better way is to seek help early and protect themselves."
And then there's the issue of legislation.
Family therapist Evonne Lek said some of her patients are reluctant to report marital rape as "they do not believe that the law will be on their side".
"If I suspect domestic violence, I often have to ask specific questions like whether they were forced to have sex," she said. "Then I will have to educate them that when they are forced to have sex, even though they are married, it is considered rape."
Currently, a man can still be convicted of raping his wife in certain circumstances, including when the couple had been living apart, or if the wife had applied for a divorce, separation or personal protection order (PPO) before the alleged offence.
Family lawyer Rajan Chettiar said one in 10 cases he's handled involved women saying they've had their husbands force sexual intercourse on them.
"This is usually raised by the female client when she wishes to file for divorce," he said. "We will use this fact as an example of the husband’s unreasonable behaviour towards the wife, which is a reason to file for divorce under the Women’s Charter."
Straits Law Practice director Ahmad Nizam Abbas, who handles matrimonial and divorce cases, said he has heard similar accounts, adding that he would bring up the option of a PPO "as their safety is critical".
But if marital immunity for rape is fully abolished, things might change.
Mr Chettiar said he would then advise clients to make a police report and "ask the police to press charges against their husbands".
"At the same time, I wonder how many wives will come forward to make such charges against their husbands," he added.
"They will be worried about how this will affect their marriage, how their husband will behave towards them in the future and how this will affect their relationship with their children and their extended families."
Mr Ahmad said there would also be other consequences, including the loss of a source of income. "The impact on the children will be a very important consideration in their decision to speak up or not," he added.
Nevertheless, AWARE's Ms Lim said the repeal of marital immunity for rape should come with "nationwide public education on sexual violence to dispel traditional gender roles and victim-blaming myths".
"For example, this can be done by implementing age-appropriate consent and gender equality education in schools in order to promote healthier, more equal relationships and sexual relations," she added.
As for the law, the criminal lawyer Mr Tiwary said things "can get pretty complicated".
"I have no doubts that the judges will be well-placed to consider these facts, but their job will become more difficult," he added. "This whole area of consent will have to be re-looked at."
Where to get help: The Sexual Assault Care Centre operates a hotline at 6779 0282 from Monday to Friday, 10am to midnight.