We are compelled to address the polemics on the legal position surrounding the criminality of sexual assault within a marital relationship as well as on the calls for the removal of the exception under Section 375 of the Penal Code, which excludes sexual intercourse by a man with his own wife by a valid marriage from the application of the provision on rape.
To preface, we firmly declare that we do not support any form of violence, more so within a familial relationship. We further denounce any call or move to permit the use of violence in any kind of relationships.
A paradoxical term
The usage of the term ‘marital rape’ to describe sexual intercourse between a husband and wife where there is supposedly ‘absence of the wife’s consent’ is a paradox that propounds many issues. ‘Rape’ is sexual intercourse without consent or against one’s will. ‘Marriage’ on the other hand is a sacred union between consenting adults. Embedded in the general comprehension of these two terms, lies the paradox: How can sexual intercourse within a sacred union, entered into by consenting adults, be seen as rape due to the purported absence of the wife’s consent during the act?
Marriage can only be contracted when both parties agree to the union. The union is witnessed, documented, publicized and registered as required by law. Despite the formality, contracting marriage is not merely the pronouncement of a legal, social, economic or financial relationship. Over and above these aspects, the most significant and distinct nature of marriage is that it allows parties within it to contract a sexual relationship. When a woman consents to marriage, she is consenting to sex because the marriage itself legalises men and women to have a sexual relationship, which is otherwise prohibited to them prior to the solemnization of their union.
On 30 October 2018, the then-Deputy Minister in the Prime Minister’s Office (Law) was queried on the position of the government vis-à-vis the demands from certain women’s organizations to abolish the exception to Section 375 of the Penal Code. In his reply, Hanipa Maidin quoted Sir Matthew Hale’s writing in The British Criminal Law, who clarified that “The husband cannot be guilty of a rape committed by himself upon his lawful wife for their mutual matrimonial consent, and contract the wife has given herself up to her husband, consent which she cannot retract.”
Sexual obligations in marriage within a legal context
Marriage stresses heavily on the sexual relationship of its parties. With this scheme in mind, it is easy to comprehend the reasoning behind the following provisions:
Firstly, non-consummation of marriage is grounds on which a marriage can be nullified, under Section 70(b) of the Law Reform Act (Marriage and Divorce) 1976 [Act 164]. A similar provision is also codified under the Syariah enactment Section 52(1)(i) of the Islamic Family Law (Federal Territory) Act 1984 [Act 303].
Secondly, a child below the age of majority (18 years for male and 16 years for female) cannot contract a marriage as per Section 69(b) of Act 164; the rationale being that a child has no legal standing to give sexual consent. From this rationale, it is also understood why we retain laws to penalize any sexual acts involving minors even when it is ‘consensual’ as per Section 375(g) of the Penal Code.
Thirdly, any person who does not have the mental capacity to consent to sexual intercourse, cannot consent to marry. This is stated in Section 70(c) and (d) of Act 164 which allows for annulment of marriage when either party is unable to understand the nature and consequences of such consent. Likewise, a similar provision is enacted under the Syariah Section 52(1)(j) of Act 303.
Fourthly, the sexual health of either party must be given due consideration in determining the status of a marriage. Under Section 70(a) and (e) of Act 164, an impotent husband, who cannot consummate the marriage or a spouse suffering from venereal disease in a communicable form, are grounds to annul the marriage. Again, a similar provision is also reflected under Syariah Section 52(1)(e) of Act 303.
Fifthly, sexual activities of the spouses are relevant to the subsistence of the marriage. Under Section 54(1)(a) of Act 164, adultery can serve as a proof that a marriage has irretrievably broken down and serves as a basis for divorce. Also, under Section 70(f) of Act 164, a wife who becomes pregnant by a person other than her husband is grounds to annul the marriage. Under Section 52(1)(h) of Act 303, a woman is entitled to obtain an order for the dissolution of marriage if her husband treats her with cruelty by associating himself with women of evil repute or attempting to force her to lead an immoral life.
We find it worthwhile to also note some of the other legal provisions that stress on the importance of marital relations within a valid marriage. Section 498 of the Penal Code criminalizes the act of enticing or taking away or detaining a married woman. While Section 493 makes it a crime for any man, who by deceit, causes any woman who is not lawfully married to him, to believe that she is lawfully married to him and thereon to cohabit or have sexual intercourse with him by said deceit. Section 37 of the Syariah Criminal Offences (Federal Territories) Act 1997 [Act 559] makes it an offence for any person to prevent a married couple from cohabiting as a legally married couple.
Taking the above points into consideration, we pose this question: can there be denial of sexual consent in a marriage, when prolonged denial of consummation could result in annulment of marriage and refusal to have sexual intercourse in a marriage is a valid reason for a divorce?
To further clarify this situation, ‘consent’ is as defined under Section 375 of the Penal Code (and mostly adopted from Section 90) which states that consent cannot be given if the person is under fear of injury, or under a misconception of fact, or when the person consenting is unable to understand the nature and consequence of that consent.
Syariah perspectives on sexual obligation in marriage
The Syariah is a body of regulations and principles that govern the daily lives of a Muslim in every aspect, including marriage. Muslims must abide not merely by the hard laws in legal provisions but also the soft laws of morality which are shaped primarily by our religious and social norms.
For Muslim married couples, the position on the issue is clear. We highlight the following selected Quranic verses and hadith in order for us to better comprehend the sources of legislation pertaining to this issue.
Firstly, the Quran mentions the intimate aspect of a marriage in Surah al-Baqarah (2:187) which translates as, “It has been made permissible for you to be intimate with your wives during the nights preceding the fast. Your spouses are a garment for you as you are for them.”
Secondly, in Surah al-Rum (30:21), the Quran speaks of the consortium provided by a wife as a sign of the Lord’s kindness towards His creation. The verse translates as, “And one of His signs is that He created for you spouses from among yourselves so that you may find comfort in them. And He has placed between you compassion and mercy. Surely in this are signs for people who reflect.”
Thirdly, in many hadith (saying, conducts and approvals of the Prophet (pbuh)), the Prophet (pbuh) emphasizes on respect and rights owed by husbands to their wives. Including in Jami` at-Tirmidhi 1162, where Abu Hurairah narrated that the Prophet (pbuh) said: “The most complete of the believers in faith, is the one with the best character among them. And the best of you are those who are best to your women.”
In another hadith recorded in Sunan Abi Dawud 2144, it is narrated by Mu’awiyah al-Qushayri, ‘I went to the Prophet (pbuh) and asked him: What do you say (command) about our wives? He replied: Give them food what you have for yourself, and clothe them by which you clothe yourself, and do not beat them, and do not revile them.’
A hadith recorded in Sahih al-Bukhari 5199 as narrated by `Abdullah bin `Amr bin Al-`As clearly exemplifies a wife’s sexual rights over her husband, where the narration states that ‘the Prophet (pbuh) said, “`Abdullah! Have I not been informed that you fast all the day and stand in prayer all night?” I said, “Yes, Prophet (pbuh)!” He said, “Do not do that! Observe the fast sometimes and also leave the fast at other times; stand up for the prayer at night and also sleep at night. Your body has a right over you, your eyes have a right over you and your wife has a right over you.”
These verses and compilation of hadith serve as a reminder that in the Syariah, a wife has rights (including sexual gratification) over her husband just as a husband holds rights over his wife. To only highlight the verses and hadith that speak of the husbands’ rights over their wives is doing a disservice to the beauty of the Islamic family institution.
The most prominent hadith that is often highlighted on this topic is as narrated by Abu Huraira and recorded in Sahih al-Bukhari 3237 that the Prophet (pbuh) said, “If a husband calls his wife to his bed (i.e. to have sexual relation) and she refuses and causes him to sleep in anger, the angels will curse her till morning.”
Many Muslim preachers speak of this hadith to stress on sexual rights of husbands over their wives, while silent on reminders for the husbands to firstly, fulfill their duties such as financial obligations or waking up in the early morning and to stand as imam to their wives for subuh prayers.
It must be highlighted that this hadith has exceptions. Among which, in Sahih al-Bukhari 5204, a hadith recorded the respect of a husband must give to his wife’s physical safety, even if she is to be chastised for a wrongdoing (such as denial of sexual intercourse when the husband invites one). In the narration by `Abdullah bin Zam`a, the Prophet (pbuh) prohibits sexual intercourse for a husband who has physically assaulted his wife: ‘The Prophet (pbuh) said, “None of you should flog his wife as he flogs a slave and then have sexual intercourse with her in the last part of the day.”
We further wish to highlight that a Muslim woman is given the authority to seek divorce by way of fasakh if she can prove to the court that her husband treats her with cruelty, that is to say, habitually assaults her or makes her life miserable by cruelty of conduct. In Syariah, no woman is allowed to be oppressed or cruelly treated by any man, simply because of his status as her husband. This right is reminded to every wife during the marriage ceremony when the qadi, solemnizing the marriage asks the wife to read her ta’liq (conditions of marriage, breach of which will invite dissolution of marriage).
Marriage is a sacred social contract that a man enters with a woman, one that is solemnized in the name of God. Muslims believe that any willful breach of this contract by either party, invites not merely social consequences but also religious ones. In view of this, we are perplexed and deeply concerned at the skyrocketing number of reported divorce cases of late.
What happens when husbands force themselves on wives?
In the Malaysian Penal Code, the sections which deal with rape are in the Subpart entitled ‘Rape’ comprising of Sections 375 – 376, whereas the laws on various classifications of hurt can be found in the Subpart entitled ‘Hurt’ comprising of Sections 319 – 338.
On 7 September 2007, women’s advocates all over Malaysia celebrated a major victory when the Malaysian Penal Code was amended to include Section 375A, an amendment which states the following: “Any man who during the subsistence of a valid marriage causes hurt or fear of death or hurt 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”. Prior to this, there was no provision under the law to charge a husband for sexually assaulting his wife. Even the Indian Penal Code, the precursor of the Malaysian Penal Code, has yet to undergo such an amendment.
One may argue that there is still a level of imbalance in the legal treatment of a husband who commits sexual assault against his wife under Section 375A compared to men who commit rape, as provided for under Sections 375 and 376 of the Penal Code.
Section 376 of the Penal Code provides that whoever commits rape shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. This punishment may vary according to the facts of the case, as specifically provided for under its subsections. Whereas, under Section 375A of the Penal Code, a man who caused hurt in order to have sexual intercourse with his wife is only punishable with imprisonment for a maximum term of five years.
To understand this difference, we must take note that Section 375 of the Penal Code outlines two general circumstances when sexual intercourse is regarded as rape: one is when there is no consent and the other is when the act is against the woman’s will. Section 375A specifically addresses sexual intercourse against the wife’s will and therefore, one that causes her hurt. Causing hurt to another person can also be charged under Sections 319 & 323. However, the punishment for this is an imprisonment term that may extend to one year or a fine that may extend to two thousand ringgit or both. The Penal Code under Section 326A doubles the punishment of causing hurt when the same is done by a spouse, that is to say if a husband causes hurt to his wife, the imprisonment term may extend to two years. Looking at these provisions, it is clear that the punishment for causing hurt is much more lenient than the punishment outlined in Section 375A.
We opine that the argument of leniency in sentencing for sexual assaults on wives must be read in light of Sections 319, 323, 326A, 375, 375A and 376 of the Penal Code. Having taken these provisions in their entirety, it can be understood that the law has not been unnecessarily lenient on a crime committed by a man, solely by his status as a husband. Rather, it is after having taken into account the intimacy of the relationship between the two parties.
The crime envisioned under Section 375A of the Penal Code is one that is intertwined with much complexity which these legal provisions take cognizance of. The provision is to punish the crime, while also giving room to protect the criminal. Bear in mind that the criminal is not a stranger off the street. In fact, the criminal here is the husband that enters the complainant’s bed every night, one who may have fathered children and built a life together with her. The legal provisions take cognizance of the possibility that Section 375A of the Penal Code may be applicable to the husband of a non-working wife, who may be deterred from reporting her husband’s sexual assault if she considers the punishment entailing her complaint to be too heavy on her husband, the sole breadwinner of the family. Section 375A was drafted to encourage wives to stand for their rights and to not be deterred from reporting sexual assaults.
Furthermore, a penal punishment imposed under any criminal provision serves not merely as incapacitation by removal of the convicted husbands from the household. The wisdom behind this punishment is also to serve as rehabilitation on the convicted persons. A maximum of 5 years imprisonment is aimed at teaching the husbands the consequences of his actions, but at the same time, not to turn him into a hardened criminal by a longer prison term. Over and above all other considerations, this should be the primary spirit of the law that we should hold when discussing this provision.
Removal of Exception to Section 375 of the Penal Code
Many argued that the exception allows married men to sexually oppress their wives and submit their wives to sexual relationships that the wives do not wish to engage in.
In this discourse, we seek latitude to argue based on a hypothetical scenario. Say for example that Parliament agrees to abolish this exception of Section 375 of the Penal Code. Thereafter, sexual intercourse between a married man and his wife can now be considered as a rape if the intercourse occurs without the wife’s consent. The wife lodges a police report because she did not consent to a particular act of sexual intercourse with her husband. How then will the police investigate this?
In rape cases where men raped women who were not their wives, the police investigation often relies on circumstantial evidence to corroborate the testimony of the victims. At trial of rape cases, behavior and conduct of the accused persons and the victims before, during and after the rape are taken into account. How do police investigate to distinguish the particular sexual intercourse that the wife is complaining of, is the very one that she did not consent to when there would have been intercourses before, or even after, that are all consented to by her? In the absence of clear evidence of injury, the investigation may be inconclusive and the prosecution will be challenging to say the least.
Bearing in mind that in all criminal cases, where the burden of proof must be beyond reasonable doubt, it takes an acrobatic level of imagination to assume what the prosecuting teams would have to do to secure a conviction on a husband who has sex with his wife without her consent. It is worth remembering at this juncture that these are not cases of sexual assault which cause physical harm, but rather where the wife for whatever reason has to, as Lady Hillingdon once famously expressed, ‘lie back and think of England’.
Such a scenario creates mistrust in the law. Are husbands then required to obtain consent from their wives for each and every intercourse they have? Must the consent be in written or expressed verbal forms or is implied consent sufficient?
This hypothetical scenario is not one that is exclusive to our legal system. Argentina has criminalized spousal rape by enacting Section 5(3) of Law on Protection of Women of 2009 [Law 26485]. Yet the complaints on the difficulty to prosecute this crime are abundant. What is the use of writing a legal provision and codifying it if it will only accumulate dust as it is practically unusable?
Love, kindness and mercy
In discussing the sexual responsibility of husbands towards their wives in a valid marriage, one must approach the discussion from the perspective of love, kindness and mercy that is institutionalized within a family. Any wrongs that may occur in a family, must be resolved with these sentiments in mind for the wellbeing of the parties within it.
When did we as a society start to look at husbands simply as possible boogeymen who are oppressive, unkind and cruel towards wives? If a husband has erred in his conduct, shouldn’t we reprimand him in the kindest way possible to ensure that in the future, he may remember to apply kindness in his conduct?
Or has our society at large been so far stripped from love, kindness and mercy that a familial tie can no longer stand on its own thus begging legal interference in every aspect, including the most intimate and private of them all, the sexual relations between a man and his wife?
* The authors namely Fatihah Jamhari, Muhammad Syafiq Mukhtar and Nur Farihah Meor Mazli are legal practitioners and activists of The International Women’s Alliance for Family Institution and Quality Education (WAFIQ), a member of the Malaysian Alliance of Civil Society Organisations in the UPR Process (MACSA).