Rape is an instinctively appalling word. However, add a “marital” in front of it and the phrase instantly becomes less so and may even appear self-contradictory at first sight. The reason behind this lack of chemistry between the two words is simply that most people will not expect the latter to happen in the context of the former.

The foundation of a marriage is consensual love and it is counter-intuitive when this does not translate into consensual sex between spouses. It is the assumption of the current law that the long arms of the law should not reach into the closed doors of the bedroom.

Under Section 375 of the Penal Code, a man cannot be penalised for forcing himself onto his wife although the same act by a stranger would have made him a criminal. The immunity to marital rape originated from eighteenth century England but was subsequently abolished in 1991. Now Singapore has played catch-up but only after more than a decade and making only a partial attempt in removing the legal immunity for marital rape.

The amendment to Section 375 of the Penal Code states that no man shall be guilty of an offence against his wife, who is not under 13 years of age, except where there was an injunction, a court order or the spouses were living apart.

The stark fact of the partial abolishment is that it would only protect the women who have filed for a divorce or applied for a protection order from the court. In this way the law effectively protects those who need the protection least as most of the victims who suffer from sexual abuse by their husbands are either weak, financially dependent, worried about their children or simply do not have the means to apply for an injunction.

Further, the proposed change does not address the root problem of immunity against rape but rather renders it masked in a narrower sense. The main argument against the presumed conjugal rights of the husband is that marital rape is no different from rape that is normally criminalised. Victims of martial rape can be equally or even more traumatised due to the daily fear and a greater sense of betrayal. By instituting that women take a proactive stance in order for them to be protected by the law would be as good as saying that one needs to pay before he can prevent himself from being slapped.

Our Asian values may define our traditional notions of marriage but should not be an immunity shield for abusive husbands. A fear of floodgates opening once the exemption for the husband is totally removed is unfounded since charges of martial rape is rare given the difficulties for the wife. When violence and coercion set in and the aggressor becomes no more than a stranger, presumed consent is as meaningless as it can get.

Tan An Qi is a first year law student and the Deputy Juris Editor. –Juris Illuminae Vol. 3 Issue 3 (January 2007)