Women’s groups want marital rape criminalised
MARITAL rape should be illegal in the eyes of the law whether or not “fear of hurt” or “coercion” on the part of victim is proven.
The Sarawak Women for Women’s Society ( SWWS) is throwing its support behind the call by the Women’s Aid Organisation ( WAO) and All Women’s Action Movement (AWAM) to criminalise marital rape in the wake of the PH government’s refusal to amend the Penal Code to prosecute spousal rapists.
“Equality is a fundamental right and needs to be at the heart of any relationship,” SWWS president Margaret Philip Bedus said.
“The idea that women have to submit to their husbands wherever and whenever is clearly patriarchal, disrespectful and distressing. Intimacy should be when it’s welcomed by both partners and the couple is wishing to please and meet the needs of each other.
“Marriage should be about having a healthy relationship not being an entrapped sex slave,” she added.
Margaret said the SWWS was disappointed with the statement by Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin that the Pakatan Harapan ( PH) government does not plan to criminalise marital rape at present, andshecallsforthedecision to be reconsidered.
She said presently, women, waiting for a divorce or whose husbands had deserted them, could not even charge the husbands with rape if they returned and forced themselves on the women, adding that this could only be rectified if Section 375 of the Penal Code was amended.
The SWWS has called for the definition of rape to be changed after the Supreme Court ruled against “finger rape case.” Instead, only adjustments have been made.
“We were told this was due to a reluctance to address the marital rape issue. If the new government is committed to human rights, it needs to make the necessary amendments and update the definition of rape in all respects.
“Presently, the situation is such that Malaysian society needs to recognise that husbands can rape their wives, whereas the current laws, by provision of an exception, imply that marital rape does not exist because a husband has the right to have sex regardless of whether his wife is willing or not,” Margaret pointed out.
Of late, the WAO has taken a stand on the issue – that marriage is not a licence to rape. It has also expressed disappointment over Mohamed Hanipa’s statement that the PH government has not plans to criminalise marital rape, noting that current Malaysian laws explicitly permit husbands to rape their wives through an “exception to the offence of rape.”
“We must delete this exception as it denies women their autonomy and right to say no, empowers abusive husbands and is out of step with global norms. Current Malaysian laws permit husbands to rape their wives,” it added in a statement. British legacy Malaysia’s Penal Code – inherited from the British – defines rape in Section 375 but explicitly exempts husbands (who rape their wives) from the offence.
Section 375A of the Penal Code ( husband causing hurt in order to have sexual intercourse) offers some protection but it is inadequate.
Firstly, the punishment (up to five years’ imprisonment) under Section 375A is more lenient compared to rape (up to 30 years).
Secondly, the Section does not recognise rape, but rather, a husband causing “hurt or fear of hurt or death to his wife in order to have sex with her.” But rape can happen without hurt or fear of hurt – for example, through intoxication or other forms of coercion.
And thirdly, it sends the wrong message – that sexual assault within marriage is not serious.
According to Section 375, a man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions – ( a) against her will and ( b) without her consent.
Calling for the deletion of the “exception” in Section 375 of the Penal Code, the WAO argued that such exception explicitly permits husbands to rape their wives. The exception is such that sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognised in Malaysia as valid, is not rape.
“We don’t need to create a new offence to recognise the right of wives not to be raped by their husbands. We simply need to delete the exception. The current law empowers abusive husbands,” the WAO said.
A 2014 Universiti Sains Malaysia ( USM) study showed that about nine per cent of ever- partnered women in peninsular Malaysia had experienced domestic violence in their lifetime. Of this, 11 per cent reported ‘ forced sex’ as a form of abuse.
This suggests around 100,000 women in Malaysia have been ‘raped’ by their intimate partners during their lifetime.
“If we don’t change our laws, we will continue to enable abuse. Most countries do not permit rape in marriage,” the WAO pointed out.
The exception to rape originates from British colonial law – not religion. Many countries that inherited British law have repealed this particular Section, including the UK itself and Singapore soon.
Only 28 countries still have marital rape exemption laws, according to a 2016 World Bank review of 173 countries, making Malaysia one of just 16 per cent of countries that still have not progressed. Out of step When the CEDAW (Convention on the Elimination of All Forms Of Discrimination Against Women) Committee reviewed Malaysia in 2006 and 2018, it recommended that Malaysia criminalised marital rape.
“If we don’t change our laws, Malaysia will continue to be out of step with international norms and standards. Parliament must repeal the exception to Section 375 of the Penal Code. Marriage must not be a licence to rape,” the WAO stressed.
Stating its stand on the issue, Sisters In Islam ( SIS) said “there are no religious factors that justify marital rape” in a stark reminder to the deputy minister ( Mohamed Hanipa) that “the Holy Quran demands husbands treat their wives with kindness, affection and mercy and they are meant to be protectors of each other.”
SIS added that the act of men, forcing sex onto their wives, goes directly against Islamic teachings as marital rape is a form of physical abuse and mental torture.
“As marital rape is clearly not permissible in Islam, current practices are purely cultural in nature and cannot be attributed to religious factors. Any allowance for rape (in and out of marriage) is in direct opposition to the Holy Quran’s intention to maintain equality in the relationship between husband and wife based on the spirit of love and compassion.
“The deputy minister’s excuse that marital rape will be ‘difficult to prove in court’ is disgraceful and irresponsible as it implies that when an issue is deemed as ‘difficult,’ it’s okay for the government to just turn a blind eye to it.
“Just because the deputy minister finds that the chances of convictions will be low does not negate the existence of such violence in our society and the suffering experienced by women, trapped in these predicaments.”
According to the Congress of Indonesian Women Ulama (KUPI), sexual violence is the most brutal expression of oppression.
The aims of sexual violence is to subdue, conquer or demonstrate dominance and power over the victim. Violence is an expression of dominance in unequal power relationships, both inside the household and external to it, and cannot be considered an act of spontaneous, unintended wrong doing ( khilaf ) by the perpetrator. Don’t shilly- shally Meanwhile, Wanita MCA ( Malaysia Chinese Association) has urged PH to not shilly- shally in enacting laws to make marital rape an offence now.
Its leader Datuk Heng Seai Kie called on Deputy Prime Minister cum Minister of Women, Family and Community Development Datin Seri Dr Wan Azizah Wan Ismail and her deputy Hannah Yeoh to state their stands and their ministry’s stand on the parliamentary reply by Mohamed Hanipa that the government has no plans to amend the laws to criminalise marital rape.
She said with perseverance, guided by the mission to protect wives in abusive marriage, lawmakers must work towards making marital rape a criminal offence, adding that no matter how miniscule the number of convictions was, the PH government, under its muchtouted ‘ New Malaysia’ moniker, must not become lazy or rest on its laurels, and relegate married women to being conveniently available for the lust and pleasure of men.
“From delaying on the legislative amendments to outlaw child marriages, Dr Wan Azizah and Hannah Yeoh can muster some credibility by openly flaying the refusal of the de facto Deputy Law Minister to protect women against further domestic violence or from abusive or sex maniacal husbands.”
Heng pointed out that ( Mohamed) Hanipa was taking a discriminatory stand which allowed husbands to exploit a loophole in Section 375 of the Penal Code which stipulates that “Exception – Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force or is recognised in the Federation as valid, is not rape.”
She said laws were meant to evolve with time and logic and reason became stupefied when Hanipa quoted Sir Matthew Hale, an English judge and barrister who once wrote that “a husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
Heng was puzzled how Hanipa, as a trained lawyer, could be so archaic in his thinking and knowledge on gender empowerment that he referenced a legal practitioner who had been dead for the last 342 years.
She said women’s suffrage and empowerment had overcome, yet continued to endure so many struggles and challenges in the last four centuries till today.
“By citing obsolete centuriesold legal writings, does Hanipa also agree that women should be denied the constitutional right to vote, considering western women in law, be it in Commonwealth countries or in America, only gained the legal right to vote much later after men.
“Hanipa should also consider if it’s so easy to prove the lesbian relationship in Terengganu where a couple was sentenced to public flogging under Terengganu Hudud enactments, why make it so difficult to prove coercive sexual intercourse in a nuptial.”
The Wanita MCA leader also urged that marital rape laws be enacted to protect husbands against sexually abusive wives as currently, the Penal Code limits rape as committed by men.