Marriage not licence to rape, Putrajaya told

De facto law minister Nancy Shukri says Putrajaya has no plans to criminalise marital rape, a remark that drew flak from leading female leaders from both sides of the divide. – The Malaysian Insider file pic, June 11, 2015.

Putrajaya’s refusal to criminalise marital rape has drawn fire from politicians and lawyers, who maintain that sex without consent is rape, even within the confines of marriage.

Gerakan Wanita chief Datuk Tan Lian Hoe said the decision was unfair and regressive towards woman, and that marriage should not be a licence for a man to rape his wife.

She said Putrajaya must serve to protect women’s right and personal dignity, especially as the Penal Code “narrowly defines rape”.

“I believe non-consensual sex is rape no matter what. It is imperative for the government to acknowledge the existence of marital rape and its collateral implications on domestic violence and child marriage.

“The decision was a let-down and we call on government to review it and ensure better protection for women,” said Tan in a statement.

Yesterday, de facto law minister Nancy Shukri said Section 375A of the Penal Code was suffice to handle cases where husbands hurt their wives for sex.

Section 375 A states that “any man who during the subsistence of a valid marriage causes hurt or fear of death 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”.

But, DAP assistant national publicity secretary Teo Nie Ching said that since it came into force on September 7, 2007, no one had been charged under the section.

She said this proved authorities were reluctant to charge husbands and that many wives did not know or understand their rights.

“If a husband takes his wife's money or belongings without her consent, it is theft. If a husband beats his wife, we call it assault and battery.

“So, why when a husband has sexual intercourse with his wife against her will, we don't call it ‘rape’? Even a sex worker has the right to say ‘No’. Marriage is not a licence to rape,” she said in a statement.

Kasthuri Patto, the vice-chairperson of DAP’s women wing, said countries such as Zimbabwe, Turkey, Cambodia, Nepal, Mauritius, Ghana, Thailand, Rwanda, Sierra Leone, Bosnia Herzegovina, and South Korea have already taken measures to criminalise marital rape.

She added that Islam could not be used as an excuse for the government not to recognise marital rape, as all faiths abhorred such conduct between husband and wife.

“In a parliamentary reply in August 2013, the Prime Minister's Department stated that the decision not to acknowledge marital rape was that it is against shariah laws and other religious beliefs.

“Perhaps Nancy Shukri is not aware that marital rape is un-Islamic,” said Kasthuri, and quoted Surah Al Ruum, verse 21, which describes marriages as being built on love and mutual respect.

Kasthuri added that criminalising marital rape would send out a strong signal that any form of rape, whether within a marriage or not, was “fundamentally wrong and unacceptable”.

Association of Women Lawyers (AWL) president Goh Siu Lin said the assumption that a wife implicitly consents to all sexual activity was discriminatory, and urged Nancy to reconsider her stand.

“AWL is most disappointed by this regressive stance taken by the government in refusing to criminalise marital rape,” Goh said in a statement.

“This is contrary to the recommendations of the Cedaw (Convention on the Elimination of All Forms of Discrimination Against Women) committee of 2006 on Malaysia, i.e. the committee requests the state party to enact legislation criminalising marital rape, defining such rape on the basis of lack of consent of the wife.”

She said even the Nepalese Supreme Court, in a landmark case, had stated: “Sexual intercourse in conjugal life is a normal course of behaviour, which must be based on consent. No religion may ever take it [marital rape] as lawful because the aim of a good religion is not to hate or cause loss to anyone.”

“The essence of rape stems from the issue of lack of consent in a relationship where parties are of unequal bargaining power, powerfully illustrated by the prevalence of child marriages in this country, coupled with the intersectionality of poverty and lack of education.

“A marriage certificate cannot be a licence for forced sex,” said Goh.

- TMI