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Marital immunity for rape rooted in archaic colonial laws, incompatible with modern society’s morality: No To Rape Campaign activists

At the heels of the release of a report by the Penal Code Review Committee, part of which contains recommendations that will potentially remove husbands' marital immunity against charges of raping their wives, activists and founders of the No To Rape Campaign have raised questions regarding the law's seemingly slow progress in reflecting the values of society today.

In a joint commentary, Wong Pei Chi, Jolene Tan, and Mark Wong dubbed the recommendations in the Penal Code review a "long-awaited reform" which was "presaged by more than a decade of efforts by many Singaporeans".

Previously, the issue was brought up in the 2007 Penal Code review, in which it was concluded that marital rape would be clear-cut in exceptional circumstances such as a separation between husband and wife, or if the wife has obtained a personal protection order.

The activists prefaced the issue of consent with the reply made by the Minister for Home Affairs K Shanmugam to one of the recommendations made by the committee: 

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.

In their statement, they emphasised that the codification of marital immunity for rape based on the problematic -- but "commonly held" -- belief that "sexual relations in marriage are distinct from other forms of sexual relations" 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".

It was further highlighted by the three activists that the "archaic" laws that grant marital immunity against spousal rape were "inherited" from "the colonial British codification of common law," and that such laws do not reflect the true values of Singapore society with regards to marriage.

Citing a study by Nanyang Technological University researchers Jeffrey Edleson and Alfred Choi which was published in 1993, it was found that, from their interviews with "a nationally representative sample of over 500 Singapore residents," most of the respondents "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)," which is in line with the prevailing view that "marriage and intimate partnerships as being built on mutually respectful and loving bonds".

It was also found by the two researchers that "only a tiny number (11.7 per cent) believed that judges should treat wife assault cases less seriously than other personal assault cases".

The three No To Rape Campaign founders have also rebutted the most frequently raised objections against removing marital immunity against rape, debunking such arguments as "illogical":

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.

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?

The activists have also stressed the role of policymakers and law enforcement in doing away with marital immunity against spousal rape, and to dispel outmoded previously held beliefs surrounding the original justification for marital immunity:

[...] 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. [...]

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.

The three activists concluded that the removal of marital immunity against spousal rape, and subsequently, the "formal recognition of marital rape as an offence" will empower "victims and survivors to initiate the due process of seeking legal accountability from perpetrators," adding that "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" from the authorities and organisations, who they hope will be able to "respond more effectively to survivors' needs" from now onwards.