Marital Rape Should be Recognized under the Law as a Crime
In this discourse, we would like to highlight the issue based on laws, facts, and wives’ lived realities. When it comes to addressing consent and marital rape, it should be differentiated from other existing legal provisions that also relate to consent. Those provisions were not drafted and implemented for the purpose to address consent related to marital rape. Conflating this with laws that address non-consummation of marriage, child marriage, mental capacity to consent in marriage, adultery and enticement of marriage only serves to undermine the issue of marital rape altogether. The poor interpretation of the current law and the incapability to understand the cause in pushing for removing the exception to marital rape is detrimental to many women who have experienced and still experiencing marital rape. It is time for us to recognize wives as human beings with dignity too, not just some sex servants to husbands with absolute access to their body, regardless of their consent or feelings.
What is marital rape?
Marital rape usually occurs when the solicitation of sex is done via intimidation, threat, force, or in any situations in which the element of consent cannot happen or take place. The main purpose in pushing for the removal of the exception to marital rape under the penal code is to simply, safeguard and provide legal redress for wives that have been used violence or/and force against them, for their husbands to pursue sexual intercourse or any sexual pleasures with their wives. Not acknowledging these incidents happening in our households is such a shame and shows how detached some people are from women’s lived realities.
If the husband uses force to push his wife onto the bed, and have sexual intercourse with her while she covers her face with a pillow, sobbing and crying, feeling violated and helpless, is that not rape? This is only one of many stories that successfully broke through those four walls, in search of help. This is the reality many wives are facing. The truth is, our fairytale stories do not fit in with their realities. If we listen carefully enough, it is not that difficult to hear these women’s voices echo through this suggested legislation. Why are we denying their experiences by pushing back efforts to protect these wives under the law?
An article titled Why Is Marital Rape Inconsistent With The Legal Provisions Of Marriage? written by WAFIQ states;
“Bearing in mind that in all criminal cases, where the burden of proof must be beyond reasonable doubt, it takes an acrobatic level of imagination to assume what the prosecuting teams would have to do to secure a conviction on a husband who has sex with his wife without her consent. It is worth remembering at this juncture that these are not cases of sexual assault which cause physical harm, but rather where the wife for whatever reason has to, as Lady Hillingdon once famously expressed, ‘lie back and think of England’.
Wives are not objects and should not be regarded as objects or sex servants. Ironically, when an organization that claims to uphold Islam uses such saying which sees wives no better than sex slaves to justify the act of forcing wives to have sexual intercourse on the basis of marriage. The presumption that a married woman is considered to have given her consent to marital intercourse by the contract of matrimony, and that consent cannot subsequently be revoked as marriage is for life, is dehumanizing, and an inhumane way to look at wives’ worth in a marriage. The lack of consent to the sexual act is the essence of rape, regardless of whether it is between a husband and wife. Therefore, there should not be such a concept as irrevocable consent, that strips a person’s bodily autonomy. Wives should not be told to just close their eyes and accept it. This suggested way of thinking does not carry or reflect the values of sakinah, mawaddah, and warahmah as Islam preached.
Malaysian Legal Position on Marital Rape
In addressing the above issue under the Malaysian legal context, sexual relationships are only exclusive between spouses but it is not absolute. What does this mean? It means the extent of the right and enjoyment of sexual relationships between spouses is determined by the law. Elements of violence or force in a marriage have long been known to be wrong and forbidden under our current law and under our Islamic principles in managing marriages or households. Development of laws has taken place in Malaysia, ensuring the limit of this right to sexual relationships between spouses does not reach the right to cause harm or hurt or use violence on wives; i.e Domestic Violence Act, Penal Code &, etc.
However, in regards to marital rape, the exception under Section 375 of the Penal Code states 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”. Meanwhile, Section 375A of the Penal Code states that: “Any man who during the subsistence of a valid marriage causes hurt or fear of death or hurt to his wife or any other person in order to have sexual intercourse with his wife shall be punished with imprisonment for a term which may extend to five years. So, what really happens when husbands force themselves on wives? All this means that it is not a crime for a husband to rape a wife unless the husband causes injury when intending to have sexual intercourse. But rape can happen without hurt or fear of hurt – for example through intoxication or other forms of coercion. This provision is inadequate in recognising marital rape and also fails to recognise that rape is fundamentally about the absence of consent and not the causing of hurt.
We would like to briefly mention that Section 70(a), 70(b), and Section 71 of the Law Reform (Marriage and Divorce) Act 1976, do not, in any way, illustrate that a wife owes a duty to offer sexual relationships in absolute to her husband. To interpret the law as such is absurd. The current law merely offers a way out for those who are incapable or out of their will, refuse to perform sexual intercourse. Thus, reaffirming that sexual relationships between spouses have always been exclusive but never been made absolute. Justly so, this law only goes to show there is nothing in our law that states, permits or may presumably offer force or violence as a solution to consummate a marriage nor to have sexual relations nor has this right been made an absolute obligation. Sadly, nor are the current laws protect those wives who have experienced violence, coercion, and force for their husbands’ sexual pleasures.
Marital Rape is hard to prove – a myth!
The claim that marital rape is hard to prove is hypothetical, not evidence-based. Marital rape should be investigated by the police and treated equally under the law with the same standard and procedural laws required for any rape cases. Every case should be tried based on evidence, witnesses, medical reports, and expert opinions. Scientifically, there should be no difference in the tear of hymen, the presence of semen, or the presence of abrasions on any raped women and any raped wives, the only difference is the other is married. In the case of Che Sufian v PP, the court has taken into consideration of the statement by the medical expert in the case. The Court notes that the medical expert had also talked about “abrasions”. He described an abrasion as “when the outer skin layer has been forcibly removed or due to trauma”. According to him, abrasion can come with bleeding. An abrasion is a wound or “luka” and can cause bleeding.
Usually, consensual intercourse would not cause abrasions. However, where intercourse is done forcibly, it can cause abrasions. The court can determine whether sexual intercourse happened with force or without consent guided by evidence and expert opinions. Scientific evidence will show that a woman has gone through undesired sex. This applies the same to raped wives. The prosecution team, in proving marital rape definitely does not require any acrobatic level of imagination, as our learned Public Prosecutors & Deputy Public Prosecutors should be well trained and well experienced in handling rape cases. Additionally, the ease or difficulty in proving a particular crime factually is not a condition in making the crime an offence in law. Rather, what matters is how wrong or harmful the crime is. Saying marital rape is hard to prove and impractical, is the same as saying rape cases are hard to prove and impractical too, but we still recognise rape as an offence under our law, don’t we? Are there not many successful proven raped cases? Marital rape is not hard to prove.
With that being said, if we continue to not recognise marital rape as an offence, we will continue to dismiss the violence and traumas that many women have faced. We are refusing to give them the redress and justice that they deserve. We have to stop denying their experiences by justifying sex as an obligation. It is not. Sisters in Islam support the amendment to remove the exception to marital rape under the Penal Code, urgently.
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