The problem as always is what constitutes consent. One of the things that the reform of the Penal Code seeks to do is to set out a uniform definition of consent. through proposed new clauses 377F and 377G. They're quite clear and I can't find anything objectionable about them.

So long as she is older than 12 and married to him, he can have her whenever he wants. Her wishes have nothing to do with it.

This comes from a simpler, and more barbaric, time, when women were not considered to have any personal agency, i.e. they were not considered to have a free will of their own. For all practical purposes, they were first the property of the father, and on marriage, the property would be transferred to the husband. The husband could expect to have the right to the sexual use of that female body at any time.

The euphemistic term for this is "conjugal rights".

The relatively modern tweak to this archaic concept is that of permanent consent: The woman, in agreeing to marry the man is said to have unconditionally given consent to all future instances of sex until the marriage is legally dissolved.

The concept can be dated from a statement made by Sir Matthew Hale, Chief Justice in England from 1671 – 1676. Hale wrote: "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 herself in kind unto the husband which she cannot retract" This established the notion that once married, a woman does not have the right to refuse sex with her husband. This rationale remained largely unchallenged until the 1970's.

To this day, Singapore law is based on this principle when it comes to sex within marriage. No matter how coercive the husband is, he cannot be said to be raping his wife (though he may still be guilty of assault and battery). There is what is known as "marital immunity" from rape.

However, as the Straits Times on 9 Nov 2006 reported, "Several jurisdictions have marital rape laws, including Britain, the United States, Australia, Taiwan, Hong Kong, Sri Lanka and the Philippines."

India too has criminalised marital rape. A sweeping new law, The Protection of Women from Domestic Violence Act 2005, came into effect late October 2006. It has very simple requirements for women to report coercion and abuse, including rape. [2]

In the United States, individual states began enacting laws against spousal rape from the 1970's on. By 1993, all 50 states and the District of Columbia have such laws. Currently 17 states and the District of Columbia provide no exemptions from rape laws whatsoever for husbands. 

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13. Marital immunity

Non-consensual sexual intercourse in a marriage is a sensitive issue as it concerns the private marital relationship between husband and wife, a unique and very special relationship where intimacy is natural but where both husband and wife may not readily want sex at the same time.

2. While we do not condone the abuse of women, we have to find 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.

3. Marital immunity now exists for a man who engages in non-consensual sexual intercourse with his wife 13 years of age and above. Rather than abolish marital immunity, a calibrated approach has been adopted whereby it would be an offence for a husband to engage in non-consensual sexual intercourse, i.e. withdraw marital immunity and allow a husband to be prosecuted for the offence of rape, if 

(a) the wife was at the time of the offence living separately from him under a judgment of judicial separation or an interim judgment of divorce not made final; 

(b) at the time of the offence, there was in force an injunction restraining him from having sexual intercourse with his wife; or 

(c) at the time of the offence, there was in force a protection order under section 65 or an expedited order under section 66 of the Women’s Charter (Cap. 353) made against him pursuant to an application by his wife. 

4. This approach affords the necessary protection to women whose marriages are, practically speaking, on the verge of a breakdown or have broken down, clearly signalling that her consent to conjugal relations has been withdrawn. There is therefore a basis to withdraw marital immunity under these circumstances. The law would apply in the case of a couple who had separated but continued living in the same house.

Indeed, abolition of marital immunity will change the complexion of marriage, but it will be for the better, with two equal parties. Modern marriage is based on mutual respect and love; forced sex cannot have any place in this arrangement. Full abolition of marital immunity will correct an imbalance of rights and legal protection.

What about the possibility that it may be abused, with wives holding their husbands to ransom? Theoretically it can happen, but experience in other countries probably indicates that in practice, it doesn't. Admittedly, I am not familiar with the statistics, but I don't recall any headline news about this happening anywhere.

In any case, it's easy to guess why it doesn't really happen. For a wife to cry rape is to detonate a nuclear weapon on the marriage, since such a charge will destroy the marriage irretrievably. Moreover, if you're found to have knowingly made a false report, that is an offence on your own part. Making a rape report on her husband is very unlikely to be something a wife does lightly.

If anything, the reality may be that even when there is a law in place, rape will continue to be under-reported, within marriage or outside it, for a long time to come.

Another concern may be that proving rape within a marriage is extremely difficult. The Straits Times reported that studies in Britain have shown that it is rare to get a rape conviction if the victim had a long-term intimate relationship with the accused. 

But it's no more difficult than in the case of an unmarried couple in a sexual relationship for some time. If one day, he turns aggressive and rapes her, the law still recognises it as rape and the police and courts have an obligation to sift through the complex details of their intertwined lives to determine the truth.

Why is it we expect our police and judges to do this, but flinch from investigating rape within a marriage?

The women most likely to be abused and raped by their husbands would be those who are least empowered in their marriages. Perhaps they have low education, or they are financially dependent, or they are foreign wives. They are unlikely to know about or have access to such legal mumbo-jumbo as injunctions and protection orders.

Yet without these, the law will not protect them. This is morally unsound.

I could even make the argument that this is unconstitutional, because the proposals are in effect social and economic barriers. The women most likely to be able to protect themselves with these legal devices will tend to be the more empowered ones. They are the ones better able to find lawyers who will advise them to take out the necessary protection orders.

Therefore, the effect of the proposed conditions would apply unequally to different classes of women, violating Article 12(1) of the Singapore Constitution, which says "All persons are equal before the law and entitled to the equal protection of the law."

A law that we can foresee will offer unequal levels of protection to different classes of people, should be repugnant to the Constitution.

The solution is simple: Abolish marital immunity entirely; apply the same standards of evidence and the same definitions of consent to sex within marriage as outside it. The only thing holding us back from doing so is a misguided sentimentality about male superiority.

A legal principle must ring out loud and clear: Every person has full sovereignty over his body always.

© Yawning Bread