By Neal Kok
Prior to 2020, the 2007 Penal Code (Amendment) Bill provided for the retainment of marital rape immunity under s375(4) of the Penal Code. Marital rape refers to the non-consensual penetration of the wife’s vagina with the husband’s penis without her consent. Under the 2007 Amendment, the immunity to husbands who had non-consensual penetration was only subject to evidence of a legal breakdown in the marriage. This was considered to be a partial immunity and was argued by then Senior Minister of State for Home Affairs Associate Professor Ho Peng Kee as a balance between the expression of intimacy in a marriage and the need to protect women even in a conjugal setting. However, the total abolition of the immunity was thought to be a radical step that would change the dynamics of marriage in Singapore’s society and was thus precluded by the ministry.
It was not until the Criminal Law Reform Act 2019 that marital rape immunity was repealed. Under the new law, a husband may be guilty of an offence against his wife under s375(1) of the Penal Code with no requirement for the prosecution to show a breakdown in the marriage.
The origins of the immunity were based on former Chief Justice of the Court of King’s Bench in England Sir Matthew Hale’s argument that a woman cannot retract her matrimonial consent. This was conceptualised as a principle in English common law and was made part of Singaporean law by s3(1) of the Application of English Law Act 1993.
Contemporary understanding has since shifted to the view that the fundamental wrong of rape is the violation of sexual autonomy. This has been articulated by Herring, where he argues that rape is the “sheer use of another person”. Under this view, there is no justification to grant immunity to husbands who penetrate their wives without their consent since it nevertheless violates the wife’s autonomy. This has been similarly expressed in Parliament by then Minister of Social and Family Development Mr Tan Chuan Jin in 2017. He reasoned that conjugal rights should be exercised within reasonable behaviour and that married women should have the same access to protection as all women. This led to the review of marital rape immunity, culminating in the repeal in the 2019 Act.
This is one of many instances that illustrate the need for Singapore to be aware of its legal foundation in the English law, and to be prepared to review their justifications. The amendment in the 2019 Act is welcomed.