UT MARA Debating Society

Marital Rape: Why the hesitant de jure recognition ?

written by Shaqib Shamsher, a law student of UiTM and an active member of the UiTM English Debating Society

In Malaysia, only the Penal Code deals with criminal offences which encompass rape. Hence the Sharia law has no jurisdiction to deal with rape as it has no jurisdiction in criminalized offences.  (Though Sharia law in some states like Selangor do ‘criminalize’ and penalize the offenders of marital rape)  Rape outside marriage in Malaysia have long been criminalized, however marital rape was never a codified offence. So Malaysia has yet to follow suit of the landmark decision in the English case of R v R [1992] 1 AC 599, that recognizes marital rape as a criminal offence.  In fact, there is an exception in section 375 of the Penal Code which stipulates the offence of rape to not include sexual intercourse between married spouses.

Section 375 of the Penal Code reads,

375. A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:

(a) against her will;

(b) without her consent;

(c) with her consent, when her consent has been obtained by putting her in fear of death or hurt to herself or any other man knows or has reason to believe that the consent was given in consequence of such misconception;

(d) with her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent;

(e) with her consent, when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent;

(f) with or without her consent, when she is under sixteen years of age.

Explanation—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception—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 recognized in Malaysia as valid, is not rape.

Explanation 1—A woman—

(a) living separately from her husband under a decree of judicial separation or a decree nisi not made absolute; or

(b) who has obtained an injunction restraining her husband from having

sexual intercourse with her, shall be deemed not to be his wife for the purposes of this section.

Explanation 2—A Muslim woman living separately from her husband during the period of ‘iddah, which shall be calculated in accordance with Hukum Syara’, shall be deemed not to be his wife for the purposes of this section.[1]

This provides an opportunity to husbands to exploit their wives into forced sexual intercourse under this exception. And it only constitutes a crime if it causes hurt to the wife, which is expressly stated in section 375A into the Penal code as follows:

Section 375A-Husbands Causing Hurt In Order To Have Sexual Intercourse

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.

According to the Parliamentary debate, dated 18^th July 2006[2],  Dato’ Seri Mohd. Radzi bin Sheikh Ahmad, then a Minister in the Prime Minister’s Department, quote that (upon translation form the BM transcript) :

“R v R is case decided in England. We are now talking about the work of the committee that has traveled across the nation, listening to views and opinions from the public including ulama, NGO’s, and other groups, and many have given different opinions. Some say that it should be abolished, as advised by Yang Berhormat of Bukit Gelugor just now. We do away with the provision of exception under section 375. Then a majority said that we cannot do so as we must – with permission, you must give in to the sensitivity of the Muslims…..Why don’t you find a middle way.

So we thought about it hard and long and therefore propose an idea that is quite in the middle, that is 375A. It is actually marital rape. 375A is marital rape but we do not call it “marital rape”. When a man hurts his wife in order to have sex, he has committed an offence under 375A. It is almost. It is marital rape but we do not call it marital rape. Here it is stressed the problem of injury. That is what I can argue because I am a representative of the committee proposing the view and opinion of the committee”.

The question is how is the scope of ‘causing hurt’ under 375A sufficient? It does not expressly stipulate how causing hurt is rape?  This is important because of the subjective nature of rape.

Rape is primarily an act against the will of the victim (even under circumstances of duress where the victim consents). What if the penetration of the penis into the victim in a marriage does not cause any form of hurt, but the victim never agreed to have sex to begin with? Wouldn’t this be considered rape too?  Marital rape must be given express recognition in the Penal Code.

Why not? The role of the government is to safeguard harms in the public sphere and not the private sphere. However if there is harms caused in the private sphere which affects the public sphere, then rape (which happens within the private sphere) which is beyond the circumstances of causing hurt, and which affects the role of women in the public sphere shall be expressly recognized in the Penal Code for their protection. The reluctance of this recognition might be due to the general idea that the government is regulating sex in a marriage and since sex is a given role in a marriage, the sanctity of marriage should not be tainted with such recognition.

Regardless of the general opinion of a marriage institution as a private sphere, the role of government is important in ensuring stable marriage institutions and the recognition of rape within the marriage can allow that especially when the life partners do not abuse each other in their sexual relationship.

Though one might argue that the government would be seen to be regulating sex within a marriage which is preposterous because engaging into a sexual act is a private right regardless of marital status. However, the underlying purpose of the government’s intervention should be seen as to facilitate this exercise of private right so long no harm is caused because all forms of rights are ultimately limited. And in the case of marital rape, forced sexual engagement by the husband upon the wife causes harm to the wife’s sense of security in the private sphere and her role and identity in the public sphere.

Religious adviser to the Prime Minister in 2004, Tan Sri Abdul Hamid Othman reported saying that Islamic Family laws already gave Muslim wives remedy i.e turning to Sharia courts to express dissatisfaction and demand for divorce[3]. For example Section 127 of the Islamic Family Law (Federal Territories) Act 1984 prescribes that any person that ill- treats his wife (which could possibly be defined as causing hurt or fear of injury or hurt to engage into a sexual intercourse) or cheats his wife of her property commits an offence and shall be punished with a fine not exceeding RM 1000 or with imprisonment not exceeding six months or with both such fines and imprisonment[4].

Furthermore, section 128 of the aforementioned Act[5] also stipulates that if the husband do not serve sufficient justice to the wives (which could be defined as not respecting the wife’s uneasiness or her right to refuse for sexual intercourse) according to Hukum Syarak, he is guilty of an offence and shall be punished with a fine not exceeding RM 1000 or with imprisonment not exceeding six months or both.

Similarly Islam has no clear recognition of marital rape within a marriage. This might be justified in the light of Islamic principles that do not recognize any form of rape within a marriage and assumes the role of the wife to give in to the husbands sexual needs.  This is clearly stated in verse 223 of the Al-Quran.

Accordingly, the verse is as follows;

‘Your wives are as a tilth unto you; so approach your tilth when or how ye will…but first provide something for your souls, and remain conscious of God, and know that you are destined to meet Him….

And also the husbands must respect the wife in engaging into a sexual intercourse, as prescribed in Al Nisa, verse 19:

“… And consort with your wives in a goodly manner, for if you dislike them, it may well be that you dislike something which God might yet make a source of abundant good.”

But Islam has yet to expressly recognize rape as sexual abuse within a marriage institution?

Sharia laws must be interpreted to adapt to the contemporary situation of a modern family institution because ultimately it is also an Islamic value to preserve the sanctity of human life. Hence, even if the recognition of marital rape as an offence reflects western ideals as claimed by Datuk Seri Harussani Zakaria[6], how does it not reflect Islam?

The closest interpretation of Sharia law that recognizes marital rape is the Islamic Family Law (State of Selangor) Enactment 2003. Section 53 of the Enactment stipulates various grounds for the wives to claim fasakh (divorce) from the husbands. Section 53(1)(h)(i) prescribes :

53 (1) A woman or man, as the case may be, married in accordance with Hukum Syarak   shall be entitled to obtain an order for the dissolution of marriage or fasakh on any one or more of the following grounds, namely ?

(h) that the husband or wife treats her or him with cruelty, that is to say, inter alia ?

(i) habitually assaults her or him or makes her or his life miserable by cruelty or conduct;

Section 53(1)(h)(i) is the closest to defining  marital rape , i.e. by including it into ‘habitually assaulting her by cruelty or conduct’.

When will the Sharia establishments draw this delineation? Since there is no clear delineation assaulting the wife and raping her, express recognition of marital rape would intrinsically  defeat the exception of rape within marriage  in section 375.

Until today, there is no local case that specifically deals with marital rape per se as a form of abuse probably due to the reluctant express recognition of marital rape in the Penal Code.

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[1] http://www.agc.gov.my/agc/oth/Akta/Vol.%2012/Act%20574.pdf

[2] Parliamentary Debates, 18^th July 2006 at <http://www.parlimen.gov.my/eng-op.php> on pg 83

[3] Ibid.

[4] Mohd Shahrizad Mohd Diah, ”Marital Rape And The Legal Response” The Legal &Social Issues of Wife Battering and Marital Rape In Malaysia (Dewan

Bahasa dan Pustaka Kuala Lumpur 1^st edn1996) p 92

[5] Islamic Family Law (Federal Territories) Act 1984

[6] http://www.aliran.com/oldsite/monthly/2004b/9m.html

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