By Tang Li
In December the Today newspaper published a letter from AWARE titled, “The right to protection from marital rape,” (December 10, 2012). The letter argued that it was time to change the law which protects husbands from prosecution if they are accused of raping their wives.
Thiswas the first time I had seen the issue of marital rape discussed in the mainstream media and the second time I had seen the issue discussed in any media. For some reason, this is an issue that nobody seems to want to discuss. This is unfortunate, especially when you compare this law with some of the other laws governing sex. We need to ask ourselves, “What exactly are we basing our laws on?”
I am not a lawyer but I assume that most rational people understand that laws governing sexual behavior are based on the principle of ‘consent.’ Hence as long as an act is performed by two ‘consenting’ adults (usually anyone considered 18-years old and above) it is legal. However, if the law deems one of the parties unable to provide consent it is illegal, hence the prohibitions against sex with children and the mentally disabled.
However, this does not seem to be the case in Singapore. As Professor Thio Li-Ann so famously said in 2007, during the debate on the repeal of 377A, “We must reject the argument from consent.” She argued that the argument ‘from consent’ was ‘morally bankrupt’.
Say what you like about Professor Thio’s position on 377A, but it seems that the laws in Singapore agree with her. If you look at the difference between 377A (illegal for two consenting adults to have sex in the privacy of the bedroom) and the immunity from marital rape (legal for one adult to rape another as long as he’s the husband of the woman he’s raping), consent is clearly not applied as the founding principle of the law. We also need to ask if our laws governing sexual behavior are relevant to modern life.
The best place to answer these questions might be to look at a list of countries that have made marital or spousal rape a criminal offense and compare it with a list of countries that permit same-sex sexual activity.
The first thing that is clear is that the principle of ‘consent’ applies in the major economies of the world (US and Europe). In these countries, same-sex sexual activity is legal and marital rape is a criminal offense.
The argument that many so called “conservatives” have used is that Singapore is an “Asian” society and Western standards are not necessarily applicable. So, we look closer to home. Hong Kong, which is the closest rival to Singapore in terms of its economic development, permits same-sex sexual activity and outlaws spousal rape.
There are of course countries in the region that either don’t permit same-sex, sexual activity or make marital rape a crime. India’s Supreme Court famously declared same-sex sexual activity unconstitutional. However, the Indian Penal Code does not prosecute marital rape (though in light of the recent national outrage against rape, things may change).
Malaysia famously prosecuted a former deputy prime minister for ‘illegal’ homosexual activity.
In this case, Malaysia argues that it is predominantly an ‘Islamic’ society with strict prohibitions against homosexuality; hence same-sex sexual activity is illegal in Malaysia. This appears to be true in the majority of Islamic nations.
In the ASEAN Region, Singapore and Brunei stand out as the two countries that ban same-sex sexual activity and do not recognize marital rape as a crime. Once again, Brunei argues that it is an Islamic society and Sharia principles are the foundation of its legal code. Singapore by contrast is a secular state and does not have religion as its founding principles.
The key argument against the repeal of 377A has always been that Singapore is a conservative society and it is against public morality. However, the question of what or whose “public morality” our laws are based on has never been discussed. The situation with marital rape in Singapore is a curious one. In many ways, Singapore is like the major economies around the world. Like women in these regions, women in Singapore enjoy a high degree of legal rights, especially when it comes to the ownership of property. However, if you look at the laws governing marital rape, it seems that the one property a woman has to surrender is her body.
Singapore, as we’ve often heard, is no longer a third-world backwater. Surely it’s time we brought our legal code up to that fact?