Furore over marital rape

Marital rape should be seen as a criminal offence

By Prema Devaraj
January 21, 2005

Given the marked increase in violent crimes including sexual abuse and domestic violence, Suhakam (the Human Rights Commission of Malaysia) recently submitted a report to the Parliamentary Select Committee proposing amendments to the Penal Code and Criminal Procedure Code. Although not specifically mentioned as such, the issue of marital rape was subsequently highlighted in the press, stirring up a hornet’s nest.

Religious intellectuals and others described Suhakam’s suggestions as going against Islam and ruining the marriage institution. In response, Suhakam commissioner Prof Hamdan Adnan stood firm and defended Suhakam’s recommendations. “Rape is violent and cruel and indeed should not happen between a husband and wife."

The call for the recognition of marital rape is not new. The Anti-Rape Task Force representing Women’s Centre for Change, Sisters in Islam, Women’s Aid Organisation, All Women Action Society and Protect and Save the Children submitted a memorandum in September 2003 to the Attorney General’s chambers, the Ministry of Women and Family Development and members of Parliament which, among other things, called for marital rape to be recognized as an offence. Their frequent dealings with women who had been abused sexually by their husbands have spurred women’s groups to push for legislation against marital rape.

Discussions in the press show that there is some acknowledgement that sexual abuse of a wife by her husband does indeed occur; however, the phrase ‘marital rape’ and the suggestion that it should be made an offence under the Penal Code has evoked a strong negative response from some quarters. Some of the arguments used by individuals who oppose not only the criminalization of marital rape, but the concept itself, are discussed below.

The rights of a husband in a marriage
It is often believed that once a woman is married, she is her husband’s property and the marriage contract is an entitlement to sex. Sir Matthew Hale, Chief Justice in 17th Century England wrote:

“The husband cannot be guilty of 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.”

Perak Mufti Dr Harussani Zakaria would seem to support this same thinking when he was recently quoted as saying that the act of a husband forcing his wife to have sex with him cannot be construed as rape and as a wrongdoing in Islam:

“A husband has the right to be intimate with his wife and the wife must obey. If the wife refuses, the rule of nusyus (recalcitrant) can be applied and the husband will no longer be responsible for his wife" (23 Aug 2004, The Star).

Comment: There is a huge difference between having consensual sexual intercourse with a spouse and raping a spouse. Sexual intercourse between consenting spouses does not entail abuse, violence and force. Rape on the other hand occurs where consent is absent and often, coercion (both physical and mental) prevails. One must consider to what extent a spouse can claim conjugal rights. In terms of conjugal rights, while some may argue that sexual intercourse between husband and wife jima’ is a religious duty and that the wife must submit, others have argued that the husband should perform jima’ with adab (courtesy). All religions value human dignity and life. None of them condone the use of force or cruelty in a marriage; however narrow interpretations of religious texts have often been used to justify the oppression of women. This has to stop.

Existing laws
Malaysian Syariah Lawyers Association deputy president Zainul Rijal Abu Bakar felt that existing laws were sufficient to tackle the issue. Religious Adviser to the Prime Minister Tan Sri Abdul Hamid Othman was reported as saying that Islamic Family laws already gave Muslim wives an appropriate remedy (NST 23Aug 2004). He said that a Muslim wife could turn to the Syariah Court if she is dissatisfied or treated with cruelty and demand a divorce.

There is no specific provision on marital rape in either the Islamic Family Law Enactments or the Penal Code. Although a woman may lodge a complaint of ill treatment against her husband in the Syariah Court, how likely would a complaint of ‘forced sex with one’s husband’ be interpreted as ill treatment or sufficient grounds for divorce? Furthermore, suggesting that a woman should demand a divorce implies that the offence is a merely a marital offence and not a criminal one.

As for the Penal Code, Section 375 states clearly, the circumstances that define rape. However if the act of sexual intercourse between a man and his wife falls under any of these circumstances set out in S.375, the man is protected from being charged with raping his wife due to the exception clause in S.375. Women’s groups have called for the removal of this exception clause so that the marriage institution will no longer protect husbands who sexually abuse or rape their wives. One might argue that marital rape could come under the purview of the Domestic Violence Act (DVA) 1994 which also includes in the definitions of domestic violence “ (c) compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain”. The problem with the DVA is that in order to prosecute a person, it has to be a crime under one of the provisions of the Penal Code. Because marital rape is not recognized in the Penal code, forced sexual relations with a husband becomes an act from which a wife has no right to abstain. And so, there is no legal protection for women on this matter, be they Muslim or non-Muslim wives.

The relationship between a man and his wife is a family issue
Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil reportedly said, “Marital rape is a family issue and as Muslims we have to look at the matter this, way, studying it from all aspects and not pointing fingers.". A letter in NST entitled “Do not meddle with the family” suggests that “some things are beyond legislation and best left to the conscience of man himself”.

When a person is assaulted or abused, it is no less a crime when the perpetrator is a family member. Violence within the family cannot be considered a family matter. The DVA is an example of a legislation that deals with violence/abuse in a domestic situation. Domestic violence (or child abuse for that matter) is no longer considered a private family issue. It is an act of violence that society does not tolerate. Marital rape should also be seen in the same light.

Legislation would lead to extra-marital affairs
A August 2004 letter to the press suggested, if wives have the right to say “no” to their husbands, then the husbands would be “faced with the dilemma of either committing marital rape or the matrimonial offence of adultery in seeking sexual release with another woman”.

Once again women are held responsible for men’s actions. Marital rape is often trivialized as an issue of a man wanting sex and the woman being difficult and forcing the poor sex-starved husband to compel his wife to have sex. Marital rape is not about sexual release. It is a violent act. It is to do with the abuse of power and the domination of a wife. It has been said that one marriage partner can make the other miserable, but can’t make the other unfaithful. Adultery is about choice and the adulterer must take full responsibility for his/her actions.

Marital rape is a Western idea
There are those who argue that marital rape is a western concept and designed to disrupt the family unit. Perak Mufti Datuk Seri Dr Harussani Zakaria was reported to have said that Suhakam’s proposal came about as a result of Western influences, adding that Western society felt guilty over the way its men had treated women in the past and that was why it strove to give women additional rights now.

It makes no difference what the origins of the phrase ‘marital rape’ are. The point is that this form of abuse occurs throughout the world irrespective of culture, religion or ethnic background. That we learn from and share our experiences with women from different parts of the world, does not negate the issue. It is also high time we stop blaming the West for everything we disagree with.

Resistance to recognizing marital rape (let alone criminalizing it) is not unexpected. Proponents of the DVA know only too well that it took them more than 10 years to get the Act passed. Recognition is just the first step towards accessing justice for marital rape victims. From the experience with the DVA, we know that legislation alone will not make the problem disappear; however it will send a very strong message to society that violence in the home (including the sexual abuse of a wife) is a crime and a public matter. It cannot be tolerated or condoned. In addition to legislation, greater public awareness on this issue and support systems for women in these circumstances are urgently needed.

As a signatory to the Convention of the Elimination of Discrimination Against Women (CEDAW), albeit with some reservations, Malaysia is morally obliged to take appropriate measures to eliminate discrimination against women, whether Muslim or non Muslim. The existing legislation on rape discriminates against women who are raped by their husbands. They have no legal protection. An AFP article Asia divided over the issue of marital rape lists Australia, Japan, Taiwan, New Zealand, Philippines and South Korea in a growing list of Asian countries that recognize rape in a marriage. More recently, Indonesia has joined this list. Perhaps one day soon, Malaysia will have the courage to do the same.

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