MARITAL rape sounds insane to conservative minds – intercourse between a husband and wife will not amount to rape in whatever circumstance, right? Still sounds rational? Even so, marital rape non-believers still exist and are administering our country, as well as the non-existence sanction concerning it.

Marital rape is a vital issue that needs to be addressed and taken seriously by our legislator and society in general.

Section 2 of the Domestic Violence Act 1994 provides an interpretation for domestic violence as emotional, physical, psychological abuse and includes financial, social and, most importantly, sexual abuse. Section 3 of the same act provides that this provision shall be read together with the provisions of the penal code (Act 574).

Now we shall refer to section 375 of the penal code, where the interpretation regarding rape is laid out. It should be emphasised that the exception in section 375 mentions that “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 recognised in Malaysia as valid, is not rape”.

Furthermore, section 375A provides for a husband who causes hurt to have intercourse with his wife may be punished with imprisonment for a term, which may extend to five years.

Even so, this section is insufficient as the punishment is less severe than rape, which can result in a 20-year prison sentence, according to the Women’s Aid Society (WAO) Malaysia. Furthermore, this section does not recognise the rape itself, but rather a husband who causes “hurt or fear of hurt or death”.

Rape can occur without any physical harm or fear of physical harm, for example, via intoxication or other forms of coercion. Moreover, the exception in section 375 may send the erroneous message that sexual assault within marriage is not serious.

The exception provided for in section 375 is rooted from the patriarchal doctrine that can be traced back to the English Common Law as explained by Chief Justice Matthew Hale in 1736, “a husband cannot be guilty of rape committed by himself against his lawful wife because there their marriage consent and binding the wife to surrender to her husband which cannot be revoked”. In this era of progress, this exception clearly discriminates a married woman and is patriarchal in nature.

For the past two centuries, feminist jurisprudence has arisen from the treatment women received over the past decades, but this may still be a revelation to our country. Numerous feminist theorists, such as Catherine Mackinnon, have contributed to the debate over the legal status of women and the need for reform.

Women believe that there is a lack of equality between them and men, and that they are undervalued by the law and men for no reason. The justifications for their discriminatory and demeaning treatment are as hollow as a conch shell.

Feminist theorists assert that law is male and masculine in nature. In the case of rape, Catherine Mackinnon (1989) demonstrates that if a court finds that an alleged rape is refuted, it decides that what occurred is an intercourse.

Furthermore, the law makes use of consent in relation to the male perspective. Many women may be economically dependent on men or may give consent out of fear of violence. The law does not distinguish between desire and passive acceptance.

As for marital rape, feminist jurist have been criticising the traditional law for the sake of achieving a safe household. Quoting Estrich (1987), rape by an acquaintance is not considered “real rape”, but rather likely consensual sex.

Mackinnon further voiced that “if rape laws exist to enforce women’s control over access to their sexuality, as the consent defence implies, no will mean no, marital rape will not be a widespread exception, and it will not be effectively legal to rape a prostitute”. Therefore, marriage does not entitle a husband to rape his own wife, and women should have control over her own body.

Marital rape is explicitly illegal in many countries, including Cambodia, Thailand, Tunisia and the Philippines. This means that Malaysia falls behind international standards on such ethical issues.

With the surge of feminist voices, the need to reform local law is eminent. As per Ingrid Fitzgerald, “Rape is rape – whether it occurs to a woman of a particular age, in marriage or a relationship – it is still rape”.

Despite feminists’ doctrinal or philosophical disagreements, one thing is certain; women will never be free until they are free of sexual aggression. – November 27, 2021.

* Nur Huda Diyanah Amir Hamzah and Nabeel Mahdi Althabhawi read The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.