We refer to the news item carried by the Malaysiakini news portal dated 10.6.2015. It was reported that the Minister in the Prime Minister’s Department, YB Nancy Shukri had in her parliamentary written reply, confirmed the retention of the exception under Section 375 of the Penal Code, relating to marital rape.
This effectively means that sexual intercourse between a husband and wife without her consent, is not considered rape in this country.
AWL is most disappointed by this regressive stance taken by the Government in refusing to criminalise marital rape. This is contrary to the recommendations of the CEDAW committee of 2006 on Malaysia, i.e: “The Committee requests the State party to enact legislation criminalizing marital rape, defining such rape on the basis of lack of consent of the wife.”
Malaysia’s position on marital rape is in stark contrast to 52 other nations, including Turkey, Australia, Canada, Denmark, Norway, Sweden and the United States of America which have legislated to make marital rape an offence (See UN Report Annexure 4: “The 2011 Progress of the World’s Women: In Pursuit of Justice Report”).
The said 2011 Report also made reference to the authority of Meera Dhungana on behalf of FWLD v HMG. In that case, the Nepalese Supreme Court had the occasion to hear a case brought by the Forum for Women, Law and Development (FWLD). It was ground-breaking for having invalidated the provision of the criminal code that exempted husbands from being charged with the rape of their wives. The court in rejecting the Government’s argument that outlawing marital rape would offend Hindu beliefs, also ended the conflict between the country’s Muluki Ain civil code, based on Hindu religious principles, and the 1990 Constitution, which pledges to end all forms of gender discrimination. The Nepalese Supreme Court stated most succinctly the essence of rape and why it should be criminalised:
“Sexual intercourse in conjugal life is a normal course of behaviour, which must be based on consent. No religion may ever take it [marital rape] as lawful because the aim of a good religion is not to hate or cause loss to anyone.”
The essence of rape stems from the issue of lack of consent in a relationship where parties are of unequal bargaining power, powerfully illustrated by the prevalence of child marriages in this country, coupled with the inter-sectionality of poverty and lack of education.
A marriage certificate cannot be a licence for forced sex. The assumption that a wife implicitly consents to all sexual activity is discriminatory of women. We urge the Honourable Minister to reconsider her stand.
Goh Siu Lin
Association of Women Lawyers