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Legal Blind Spots - Malaysia's Silent Epidemic On Marital Rape



“No one should ever be forced to endure sexual violence, not even within the confines of marriage. Marital rape is a crime, plain and simple."

- Ban Ki-moon, Former Secretary-General of the United Nations


 

For starters, what is marital rape?


Marital rape, also known as spousal rape, refers to the act of one spouse engaging in sexual intercourse with the other without their explicit and voluntary consent within the insitution of marriage. It is a form of sexual violence and domestic abuse where the perpetrator uses their marital relationship as a means to exert power and control over their partner, disregarding their autonomy, bodily integrity, and right to refuse sexual activity.


Marriage, universally revered as a sacred institution, is intended to symbolise love, trust, and mutual respect between partners. Yet, embedded within the perceived sanctity of marriage lies a grim truth - the pervasive yet often unacknowledged issue of marital rape. In Malaysia, as in many parts of the world, the issue of non-consensual sexual intercourse within marriage remains shrouded in taboo and stigma, intensifying the suffering of countless individuals and families. Despite growing recognition of gender-based violence and efforts to address it, the criminalisation of marital rape has been slow to materialise, leaving victims without recourse and maintaining a culture where wrongdoing goes unpunished. This article aims to provide a comprehensive examination of marital rape, the shortcomings of the Malaysian Penal Code in addressing the issue, and the urgent need for reform.


According to a study conducted by Universiti Sains Malaysia in 2014, it was discovered that about 9% of partnered women experienced domestic violence, with 11% reporting “forced sex” as a form of abuse. This implies that approximately 100,000 women in Malaysia have been raped by their romantic partners. Additionally, a recent article by TheSun-Malaysia highlighted a surge in cases since the onset of the pandemic in 2020. This significant increase is attributed to Malaysia implementing the Movement Control Order, which confined victims in close proximity to their abusers. In the article, it was revealed by a representative from The Women, Family, and Community Development Ministry that the Social Welfare Department reported 188 instances of domestic abuse from January to November 2023, while the Royal Malaysian Police, also known as PDRM, documented 1,406 cases. The pandemic-induced lockdowns have exacerbated the vulnerabilities of victims of marital rape, trapping them in environments where they are isolated from social support networks and face heightened risks of abuse. With limited avenues for escape and assistance, many survivors have been forced to endure prolonged periods of trauma and suffering behind closed doors.


The legal framework governing rape in Malaysia is outlined in Section 375 of the Penal Code which states:


“A man is said to commit ‘rape’ when he commits sexual intercourse against a woman under circumstances falling under any of the following descriptions from (a) to (g).”


At first glance, this statutory provision appears robust, offering a clear definition of rape and providing legal certainty to prosecutors and courts to convict the accused.


However, upon closer examination, Section 375 reveals a critical exemption which excludes husbands who rape their wives from the offence. The insertion of the exception states that


“Sexual intercourse by a man with his own wife by a marriage which is valid under any written law currently in force, or is recognised in Malaysia as valid, is not rape.”


It is worth noting that Explanation 1 under the statutory provision provides for three situations when a woman will be deemed to not be “his wife.” These include instances where she is living separately from her husband under a decree of judicial separation or a decree nisi not made absolute, or where she has obtained an injunction restraining her husband from having sexual intercourse with her. Additionally, if she is a Muslim woman living separately from her husband during the period of ‘iddah’, she is also not considered “his wife.”


What is a decree of judicial separation and the period of ‘iddah’?


Judicial separation according to Section 64(2) of the Law Reform (Marriage & Divorce) Act 1976, is a legal decree that relieves the petitioner from the obligation to cohabit with their spouse.


The ‘iddah’ period, applicable to women divorced by their husbands, specifically pertains to Muslims, as the Law Reform (Marriage & Divorce) Act 1976 does not apply to individuals married under Islamic law. As per the standard guideline, when a woman is divorced by her husband, her ‘iddah’ period extends to either three months or three menstrual cycles (‘quru’), as outlined in Surah al Baqarah: 228 (Abd Ghani Azmi, 1996 : 391). In simpler terms, during her ‘iddah’, a Muslim woman ceases to be a wife to any man, and consequently, her husband’s right to engage in sexual intercourse with her ends.


This statutory provision raises significant criticism as it effectively allows for marital rape to occur with impunity under certain circumstances. One major concern is that not all individuals may be aware of the legal process or possess the means to obtain judicial separation. It places a burden on the victims to navigate complex legal procedures, which can be daunting and inaccessible to many, particularly those from marginalised communities. Moreover, obtaining an injunction may require legal representation and financial resources that are not readily available to all, creating a barrier to accessing justice for survivors of marital rape and leaving them without adequate protection from abuse within their marriages.


Nevertheless, it should be acknowledged that Section 375A does offer protection against marital rape to a certain extent. Section 375A 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.”


A notable aspect of the protection offered by Section 375A is that it explicitly addresses situations where coercion or threats of harm are used to obtain sexual intercourse within marriage. Furthermore, the provision covers not only the wife but also any other person who may be harmed in connection with the sexual intercourse.


While Section 375A ostensibly provides some level of protection against marital rape, it is flawed, with shortcomings that undermine its effectiveness. A noticeable weakness of the provision is its reactive approach, as it only takes action after incidents of harm or coercion have occurred within a marriage. By focusing solely on post-incident legal action, the provision fails to proactively address the underlying issues of marital rape and domestic violence. This approach places the burden on survivors to endure harm before seeking justice, rather than implementing measures to prevent harm and intervene in abusive situations before they escalate. Hence, the lack of proactive measures encourages a culture of tolerance towards marital rape and compromises efforts to promote safety, equality, and respect within marital relationships.


Undoubtedly, it is high time for Malaysia to revisit its existing laws and undertake the necessary amendments to the Penal Code to align with contemporary societal values and promote gender equality and women’s rights. The exception under Section 375 of the Penal Code, a colonial relic from the British legal system, stands as an outdated impediment to justice. Numerous countries, including Hong Kong, Australia, and the United Kingdom itself, have repealed similar laws, recognising the need to address marital rape as a serious offence. Parliament must take decisive action to abolish this exception, which grants husbands immunity to rape their wives without consequences. While the law must provide certainty, it should not be rigid; amendments to Section 375 should reflect the modern reality where women are empowered and gender equality is paramount. Malaysia’s commitment to international standards, as a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), encourages the alignment of domestic laws with the convention’s articles. Therefore, Section 375A should be amended to require the explicit and voluntary consent for sexual intercourse within marriage.


Ultimately, the absence of specific legal provisions to combat marital rape reveals not just a gap in the legal framework, but a profound failure in the legal system to safeguard the basic rights and dignity of individuals within marriage. Confronting the issue of marital rape demands more than just legal reforms; it necessitates a multifaceted approach that challenges cultural norms, tackles legal barriers, and shifts societal attitudes towards gender-based violence. Recognising marital rape as a criminal offense is not only a matter of human rights but also a crucial step towards achieving gender equality and upholding the principles of social justice.


As we confront the shadows of silence, let our collective outcry resonate as a beacon of hope, signalling the dawn of a new era where every individual is empowered, every survivor is supported, and every instance of marital rape is met with unwavering condemnation and accountability.


Written by: See Yi Vonne

Edited by: Elaine Chee

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