Criminalising Marital Rape

Section 375 of the Malaysian Penal Code provides for the criminal offence of rape. However, a considerable shortcoming is that even if a man meets all the criteria for the commission of the criminal act, if the woman whom he has sexual intercourse with is his lawfully wedded wife, he will be immune from being charged with rape.[1] The existence of the exemption to marital rape symbolises Malaysian law’s advocacy of the illusion of ‘implied consent’, deriving from old-fashioned ideas of women being the ‘property’ of men – that is, when a woman becomes a wife, she implicitly consents to all sexual intercourse with her husband regardless of whether she actually wishes to have sexual intercourse at a specific time.

To begin with, let us look at the benefits of criminalising marital rape. One of the functions of law is to maintain social order and the welfare of individuals in the society. Criminal law plays a role in protecting individuals against harms they may suffer individually, and also the dangers which threaten the well-being of the society at large.[2] For example, rape is a serious offence to the victim who suffers it, but society in general is outraged when the person and integrity of any one of its members have been violated, and when any one of its members commits this offence against another person.[3] Therefore, there must be the enforcement of criminal law and punishment to ensure that the public sense of justice is satisfied.

Historically, marital rape was not regarded as an offence and the law granted husbands immunity from facing prosecution.[4] This immunity granted to husbands against prosecution for raping their wives is built on the legal fiction of considering marriage as a means of implied perpetual consent to sexual intercourse.[5] This exception was established solely on the concept of irrevocable consent to sexual activity in marriage. Sir Matthew Hale once 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 up herself in this kind unto her husband, which she cannot retract...”[6] The post-colonial era norm in Malaysian jurisdiction has retained this immunity.

The criminalization of marital rape has been directed in view of harms amassing to women being treated as the property of their husbands. In a House of Lords decision in R v R[7], Lord Hale opined that “...the idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections is no longer acceptable. It can never have been other than a fiction, and fiction is a poor basis for the criminal law.” The international call to criminalize marital rape advocates the assertion that the society must stop endorsing sexual violence committed against women. The CEDAW Committee [8] conveyed its concern at the high pervasiveness of sexual violence including rape in the public and private realms in certain countries and also declared its concern over the culture of silence and freedom over sexual violence and the absence of criminalisation of marital rape in the law.[9]

Criminal law can also be used as a medium to prevent or remedy the enactment of stigma against [sexual] violence, discrimination or other harms.[10] The deterrent nature of criminal law using criminal punishments is meant to act as a preventive measure by implementing criminal punishments of a strength sufficient to hinder an individual from committing a crime. Criminalising marital rape aims to deter any husband from coercing his wife into having sexual intercourse without her consent. For the married woman, the recognition of this offence provides her with means of seeking justice from a wrong that causes her harm and violates her right to equal protection of the law, to non-discrimination and her right to be protected from violence. Where a husband is found guilty for marital rape, the sentence that he receives serves as compensation to the wife for the harm that she has suffered and as a deterrent to the husband.

Criminal law is also able to be used as a means through which stigma is constructed, implemented or disputed. Scott Burris claims that there is a need to comprehend the expressive role of law as it applies in the advancement of or subversion of stigma at the social level.[11] He argues that the law is clearly a channel to define and protect social status and can be used to deliberately assert low status.[12] The marital exemption protects the status of men in marriage and their power in the treatment of their wives. It also prioritizes men’s sexuality over the woman’s. The lack of a law criminalizing marital rape in Malaysia, also asserts a lower status of married women, by failing to recognize their sexual autonomy within marriage and legitimizing their unequal treatment within the marriage and in society at large. Criminalisation of marital rape will lift the status of married women, by providing an avenue for them to seek justice.

To criminalise marital rape, however, there must also be acknowledgement of the limitations of criminal law to assess whether it would resolve the problem of marital rape. One of the limitations of criminal law is that it does not take into consideration the intricate nature of the relationship between the victim and the offender. Bonita Meyersfeld correctly affirms that, the victim’s emotional attachment to her abuser may prevent her from taking such a harsh step as having him arrested.[13] She may wish the violence to stop but may not necessarily want her partner to be imprisoned. A balance needs to be struck, and there should be an interactive process between the abused and the official legal services. Ideally, the Prosecution should only address a complaint with the approval and consent of the victim. However, the Prosecution should hold a discretionary power to proceed with criminal proceedings even if the complaint is withdrawn where certain factors are concerned. [14]

Next, criminal law is limited in that it addresses the behaviour but does not necessarily change the attitudes that cause the behaviour, or the attitudes towards the offence itself. In other words, the law may be express in its prohibition, but so long as the people do not perceive marital rape to be wrong, the law will not be effective.[15] Another limitation of criminal law is it fails to provide urgent response that the victims need. Criminal matters are time consuming and do not provide the urgent response that the victims often need.[16] Domestic violence cases, and sexual violence cases such as marital rape cases, require expediency, to allow effective remedies to be obtained for the protection of the victim.

Finally, criminalising marital rape may lead to abuse by wives who are looking for a reason to divorce their husbands. This would happen when a couple is in the process of getting a divorce or is separated. A wife could use the ground of marital rape to allow the court to lean in her favour when giving the decision regarding a divorce. She could simply say that she did not consent to sexual intercourse at a given time and the husband could have had no knowledge whatsoever about it before a court proceeding.

In conclusion, there is no doubt that the advantages of criminalising marital rape outweigh its disadvantages. Malaysia needs to make changes in its laws with regards to sexual violence to undermine any stigma or discrimination that is expressed on women. The insertion of Section 375A which punishes husband who causes hurt to his wife in order to have sexual intercourse is not enough to protect married women. Malaysia needs to criminalize marital rape explicitly, to promote the status of married women as equal to that of their husbands. The affirmation by criminal law, that married women must be protected by the law, will have the effect of acknowledging Malaysia’s obligations of protecting married women from sexual violence and their right to equality and non-discrimination.

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