Marital rape immunity in Singapore

Marital rape generally refers to non-consensual sexual intercourse between married spouses. In Singapore, there used to be a partial immunity for marital rape because it was not a criminal offence except when the wife is below 13 years of age or when any of the specific circumstances provided under section 375(4) of the Singapore Penal Code are satisfied.[1] Since 1 January 2020, the immunity was lifted, criminalising all forms of rape.

Marital rape has been identified by the United Nations General Assembly to be a form of violence against women in the Declaration on the Elimination of Violence Against Women (DEVAW).[2] The DEVAW is said to complement and strengthen the implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which Singapore ratified on 5 October 1995.[3]

There are no documented statistics on the prevalence of marital rape in Singapore.[4] There has only been one reported case of marital rape in the Singapore courts.[5] Nevertheless, it is believed that many victims of marital rape suffer in silence because of the knowledge of a lack of effective legal remedies as well as the social stigma attached to the issue.[6]

Marital rape immunity under Singapore law

Origins of the immunity

The marital rape immunity under Singapore law is believed to have originated from an extrajudicial remark by Sir Matthew Hale in “The History of the Pleas of the Crown”, where he stated that a husband cannot be guilty of marital rape against his wife because the latter had irrevocably consented to sexual relations during the marriage.[7] This principle of irrevocable consent was later cited in several English cases as justification for immunity against marital rape.[8] The immunity was eventually imported into Singapore law as part of the English common law by the application of English Law Act 1993.[9]

Legislative reform in 2007

The marital rape immunity was the subject of legislative amendments in the Penal Code (Amendment) Act 2007.[10] Prior to the amendments, section 375(e) provided blanket immunity to husbands who had non-consensual sexual intercourse with their wives as long as the latter was not below 13 years of age.[11] The proposed amendment to section 375(e) did not seek to abolish the immunity altogether but, instead, sought to introduce exceptions to the immunity such that it would be lifted when there is some evidence of breakdown in the marriage concerned,[12] such as when:

  • the wife, who was living apart from her husband, has obtained an interim judgment of divorce or nullity, a judgment or decree of judicial separation, or a written separation agreement;[13]
  • the wife, who was living apart from her husband, has commenced legal proceedings for divorce, nullity or judicial separation;[14]
  • there is a court injunction that restrains the husband from having sexual intercourse with his wife;[15]
  • the wife has obtained a Protection Order or Expedited Order against her husband;[16] or
  • the wife has commenced proceedings for a Protection Order or Expedited Order from her husband.[17]

Introducing the proposed amendments at the Second Reading debate of the Penal Code (Amendment) Bill 2007, then Senior Minister of State for Home Affairs Assoc. Prof Ho Peng Kee described the proposed section 375(4) as a “calibrated approach” that balances the “needs of women who require protection, general concerns about conjugal rights and the expression of intimacy in a marriage”.[18] To this end, total abolition of the immunity was precluded as the Ministry was concerned that such a radical step would “change the whole complexion of marriage” in the Singaporean society.[19]

Whilst the Members of Parliament (MPs) were unequivocal in their condemnation of marital rape in principle, reactions to the extent of the proposed amendments were mixed. On the one hand, MP Dr Teo Ho Pin supported the Ministry's calibrated approach, recognising the difficulties inherent in determining lack of consent in sexual relations between married spouses.[20] It was suggested that women in strained marriages should express their non-consent by taking out legal proceedings, as outlined in the proposed section 375(4), from which the intention of non-consent for sexual intercourse with their husbands may be more clearly inferred.[21]

On the other hand, several MPs spoke in support of the total abolition of the marital rape immunity.[22] MP Ellen Lee questioned the lack of safeguards in cases where the wife has not yet commenced the legal processes required to lift the immunity or is unable to do so because of financial or emotional reasons.[23] MP Ho Geok Choo criticised the proposed amendments as being insufficient to protect women who are “most dependent on their husbands as well as those who will have the least access to legal counsel”.[24] Several MPs also expressed concern at the presumption of the wife's consent to have sexual intercourse in the proposed section 375(4), suggesting that there should not be a difference drawn between rape occurring within the context of a marriage and outside of one.[25]

Eventually, the Bill was passed without modification and came into force on 1 January 2008.

Calls for total abolition

Since the 2007 legislative amendments, there have been ongoing calls for the total abolition of the marital rape immunity both domestically and internationally. In 2009, a Singapore-based online petition "No to Rape" [26] was set up to specifically campaign for the total abolition of the immunity. A total of 3,618 individuals signed the petition to the Prime Minister of Singapore for the repeal of section 375(4).[27]

In the international arena, the Canadian delegation recommended the introduction of legislation to criminalise marital rape in all circumstances during Singapore's Universal Periodic Review (UPR) in 2011. It was noted that this recommendation did not enjoy the support of the Singapore Government.[28] In the Stakeholder's Report to the Working Group on the Universal Periodic Review, a joint submission by several non-governmental organisations[29] also called for the partial immunity for marital rape to be repealed.[30]

At Singapore's UPR in 2016, the need for the abolition of the marital rape immunity was reiterated.[31] In response, Ambassador-at-Large Chan Heng Chee noted that Singapore “would actively review the need to repeal the marital rape immunity”.[32] While no definitive answer has been given to the question of whether or when the marital rape immunity will be repealed,[33] some believe that Singapore's response at the 2016 UPR indicates that the abolition of the marital rape immunity is forthcoming.[34] In April 2017, then Minister of Social and Family Development, Mr Tan Chuan-Jin confirmed in Parliament that review of the marital rape immunity is underway.[35] To this end, he expressed the view that “married women should have the same access to protection as unmarried women” and “although married persons have conjugal rights over each other, such rights should be exercised within reasonable behaviour”.[36]

Repeal

The Criminal Law Reform Act 2019 was passed on 6 May 2019, which includes repealing marital rape immunity.[37] The new laws came into force on 1 January 2020.[38]

Singapore’s obligations under CEDAW

Marital rape, and by extension legal immunities to marital rape, are contrary to human rights as a recognised form of violence against women in the DEVAW.[39] Article 2 of the CEDAW, which Singapore has ratified, ‘condemns discrimination against woman in all its forms’.[40] Further, Article 16 of the CEDAW requires state parties “to eliminate discrimination against woman in all matters relating to marriage and family relations” to ensure equality between men and women.[41] The Committee on the Elimination of Discrimination against Women (CEDAW Committee) in their General Recommendation 19 has also identified family violence, including marital rape, as a form of discrimination under Article 16.[42] It has also been suggested that the non-criminalisation of marital rape amounts to discriminatory treatment in two ways – first, by discriminating between violence directed at women specifically from other types of violence, and, second, by discriminating between violence inflicted in the private sphere and public sphere.[43]

Singapore has made reservations to a number of provisions in the CEDAW, including Article 2 paragraphs (a) to (f), and Article 16 paragraphs 1(a), (c), (h) and (2).[44] Noting this at Singapore's fourth periodic report to the CEDAW Committee in 2011, the Committee called for the State to withdraw these reservations which “are impermissible, since those articles are fundamental to the implementation” of the Convention.[45]

Furthermore, the Committee also highlighted the limited effectiveness of section 375(4) in safeguarding women against domestic and sexual violence given that the immunity is only lifted in specific circumstances – that the perpetrator and the victim are living apart and are in the midst of terminating their marriage or that the victim has applied for a protective order against the perpetrator.[46] Hence, the Committee urged for the criminalisation of marital rape and for the definition of rape to cover every non-consensual sexual act.[47]

Other human rights concerns

Freedom from torture

The right not to be subject to torture, which has been enshrined in the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT),[48] is said to encompass the right to be free from domestic violence and rape (including marital rape).[49] Singapore has not ratified the CAT [50] and thus is not legally bound to give effect to the Convention's prohibition against torture in its domestic laws.

Right to security of the person

It has been suggested that legal immunities to marital rape infringes the right to security of the person, which is protected by Article 3 of the Universal Declaration of Human Rights (UDHR) as well as Article 9 of the International Covenant on Civil and Political Rights (ICCPR).[51] The United Nations Human Rights Committee in its General Comment 35 on Article 9 recognised that, in order to safeguard the right of security of persons, State parties are obliged to “respond appropriately” to patterns of violence against woman, such as instances of domestic violence.[52] However, Singapore, not being a state party to the ICCPR, is not as such obliged.

Another aspect of safeguarding the right to security of persons concerns one's right to bodily security.[53] The CEDAW Committee has suggested that definitions of rape, including marital rape, that are based on the use of force rather than the lack of consent fails to satisfy the state's obligations to ensure the protection of a women's right to bodily security.[54] In the same vein, a presumption of the ongoing existence of consent in a marital relationship, such as the victim's implied consent under section 375(4),[55] also constitutes a violation.[56]

Right to health and well-being

Rape can lead to adverse psychological and health effects in victims – the World Health Organisation has identified the risk of pregnancy and gynaecological complications, the risk of contracting sexually-transmitted diseases, increased suicidal tendencies and social ostracisation as some of them.[57] Sexual assault by an intimate partner increases the likelihood of post-traumatic stress disorder in victims as compared to sexual assault by a non-intimate partner.[58] Thus, legal immunities against marital rape arguably amount to a violation of a woman's right to health and well-being,[59] which is a right protected by Article 25(1) of the UDHR.[60]

Although Singapore has yet to ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR),[61] it is noted that Article 12 of the ICESCR obliges state parties to "recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health".[62] The Committee on Economic, Social and Cultural Rights in its General Comment No. 22 (2016) clarified that Article 12 encompasses the right to sexual and reproductive health and that the fulfilment of which requires state parties to enact legal prohibitions against harmful practises and gender-based violence, including marital rape, to enable individuals to make autonomous decisions on matters regarding their sexual and reproductive health.[63]

References
  1. Penal Code (Cap 224, 2008 Rev Ed) (Singapore) s 375(4).
  2. Declaration on the Elimination of Violence against Women GA Res 48/104, A/Res/48/104 (1994) at Article 2(a).
  3. United Nations Treaty Collection website (accessed 26 August 2017).
  4. Melissa Zhu, “Behind closed doors: Rape and marriage in Singapore” (20 August 2016) (accessed 26 August 2017).
  5. Public Prosecutor v N [1999] 3 SLR(R) 499.
  6. Rachel Au-Yong, “Immunity for marital rape being reviewed",The Straits Times, (5 April 2017) (accessed 27 August 2017).
  7. 1 Hale, Pleas of the Crown, at p. 629.
  8. R v Clarence (1888) 22 QBD 23; R v Clarke [1949] 2 All ER 448
  9. Application of English Law Act (Cap 7A, 1994 Rev Ed) s 3.
  10. Penal Code (Amendment) Act 2007 (No. 51 of 2007) (Singapore).
  11. Penal Code (Cap 224, 1985 Rev Ed) (Singapore) s 375(e). See also Chan Wing Cheong, “Penal Code (Amendment) Act 2007: Rape within marriage” [2009] Sing JLS 257-271 at 257.
  12. UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Singapore, 11 July 2011, A/HRC/18/11 at [49]. See also Singapore Parliamentary Debates, Official Report (4 February 2013) vol 90 (S Iswaran, Second Minister for Home Affairs).
  13. Penal Code (Cap 224, 2008 Rev Ed) (Singapore) s 375(4)(a).
  14. Penal Code (Cap 224, 2008 Rev Ed) (Singapore) s 375(4)(b).
  15. Penal Code (Cap 224, 2008 Rev Ed) (Singapore) s 375(4)(c).
  16. Penal Code (Cap 224, 2008 Rev Ed) (Singapore) s 375(4)(d).
  17. Penal Code (Cap 224, 2008 Rev Ed) (Singapore) s 375(4)(e).
  18. Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (Ho Peng Kee, Senior Minister of State for Home Affairs).
  19. Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (Eunice Elizabeth Olsen, Nominated Member).
  20. Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (Teo Ho Pin, Bukit Panjang).
  21. Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (Teo Ho Pin, Bukit Panjang).
  22. See generally the speeches of Members of Parliament Eunice Elizabeth Olsen, Siew Kum Hong, Ho Geok Choo, Charles Chong.
  23. Singapore Parliamentary Debates, Official Report (23 October 2007) vol 83 (Ellen Lee, Sembawang).
  24. Singapore Parliamentary Debates, Official Report (23 October 2007) vol 83 (Ho Geok Choo, West Coast GRC).
  25. Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (Siew Kum Hong, Nominated Member); Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (Indranee Rajah, Tanjong Pagar).
  26. "NoToRape". Retrieved 2019-07-30.
  27. Petition submitted by No to Rape (accessed 26 August 2017).
  28. UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Singapore, 11 July 2011, A/HRC/18/11 at [97.13].
  29. The non-governmental organisations were the Association of Women for Action and Research, Challenged People's Alliance and Network (CAN!), Deaf and Hard of Hearing Federation, Humanitarian Organization for Migration Economics, MARUAH (Working Group for an ASEAN Human Rights Mechanism, Singapore), People Like Us; Singaporeans for Democracy, and Transient Workers Count Too.
  30. UN Human Rights Council, Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15(c) of the annex to Human Rights Council resolution 5/1: Singapore, 21 February 2011, A/HRC/WG.6/11/SGP/3 at [17].
  31. UN Human Rights Council, Compilation prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15(b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21: Singapore, 20 November 2015, A/HRC/WG.6/24/SGP/2 at [16]; UN Human Rights Council, Addendum to the Report of the Working Group on the Universal Periodic Review: Singapore, 13 June 2016, A/HRC/32/17/Add.1 at [17].
  32. UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Singapore, 15 April 2016, A/HRC/32/17 at [163].
  33. Singapore Parliamentary Debates, Official Report (15 August 2016) vol 94 (Louis Ng Kok Kwang, Nee Soon GRC).
  34. Melissa Zhu, “Behind closed doors: Rape and marriage in Singapore” (20 August 2016) (accessed 26 August 2017).
  35. Singapore Parliamentary Debates, Official Report (4 April 2017) vol 94 (Tan Chuan-Jin, Minister for Social and Family Development).
  36. Singapore Parliamentary Debates, Official Report (4 April 2017) vol 94 (Tan Chuan-Jin, Minister for Social and Family Development).
  37. "Criminal Law Reform Bill: A look at key changes in the Penal Code". Today. 6 May 2019. Retrieved 13 June 2019.
  38. Ng, Charmaine (27 December 2019). "Watch that cigarette butt and BBQ embers - firestarters to feel more heat from the law from Jan 1". The Straits Times. Retrieved 31 December 2019.
  39. Declaration on the Elimination of Violence against Women GA Res 48/104, A/Res/48/104 (1994) at Article 2(a).
  40. UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13 at Article 2.
  41. UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13 at Article 16.
  42. UN Committee on the Elimination of Discrimination Against Women, General Recommendations No. 19, adopted at the Eleventh Session, 1992 (contained in Document A/47/38), 1992, A/47/38 at [23].
  43. Melanie Randall & Vasanthi Venkatesh, “The right to no: the crime of marital rape, women’s human rights, and international law” [2015] 41:1 Brook J Int’l L 153 at 189.
  44. Singapore's reservations to CEDAW (accessed 26 August 2017).
  45. Committee on the Elimination of Discrimination Against Women, Concluding observations of the Committee on the Elimination of Discrimination against Women: Singapore, 16 January 2012, CEDAW/C/SGP/CO/4/Rev.1 at [13].
  46. Committee on the Elimination of Discrimination Against Women, Concluding observations of the Committee on the Elimination of Discrimination against Women: Singapore, 16 January 2012, CEDAW/C/SGP/CO/4/Rev.1 at [23].
  47. Committee on the Elimination of Discrimination Against Women, Concluding observations of the Committee on the Elimination of Discrimination against Women: Singapore, 16 January 2012, CEDAW/C/SGP/CO/4/Rev.1 at [24(a)].
  48. UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85.
  49. Melanie Randall & Vasanthi Venkatesh, “The right to no: the crime of marital rape, women’s human rights, and international law” [2015] 41:1 Brook J Int’l L 153 at 179.
  50. Ratification status for Singapore (accessed 26 August 2017).
  51. Melanie Randall & Vasanthi Venkatesh, “The right to no: the crime of marital rape, women’s human rights, and international law” [2015] 41:1 Brook J Int’l L 153 at 179.
  52. Human Rights Committee, General comment No. 35, 16 December 2014, CCPR/C/GC/35 at [9].
  53. Melanie Randall & Vasanthi Venkatesh, “The right to no: the crime of marital rape, women’s human rights, and international law” [2015] 41:1 Brook J Int’l L 153 at 186.
  54. Melanie Randall & Vasanthi Venkatesh, “The right to no: the crime of marital rape, women’s human rights, and international law” [2015] 41:1 Brook J Int’l L 153 at 196.
  55. Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (Siew Kum Hong, Nominated Member); Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (Indranee Rajah, Tanjong Pagar).
  56. Melanie Randall & Vasanthi Venkatesh, “The right to no: the crime of marital rape, women’s human rights, and international law” [2015] 41:1 Brook J Int’l L 153 at 197.
  57. World Health Organisation, "World Report on Health and Violence 2002”, at p 162 – 165.
  58. Jeff R. Temple, Rebecca Weston, Benjamin F. Rodrigeuz, Linda L. Marshall, “Differing Effects of Partner and Nonpartner Sexual Assault on Women’s Mental Health”, Violence Against Women 2007; 13(3): 285-297.
  59. Melanie Randall & Vasanthi Venkatesh, “The right to no: the crime of marital rape, women’s human rights, and international law” [2015] 41:1 Brook J Int’l L 153 at 194-195.
  60. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) at Article 25(1).
  61. Ratification status for Singapore (accessed 11 October 2017).
  62. UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3 at Article 12.
  63. Committee on Economic, Social and Cultural Rights, General comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), 2 May 2016, E/C.12/GC/22 at [29] and [49(d)].
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