Jurnal Akademik UiTM Cawangan Johor 70

MARITAL RAPE : A VIEW ON MALAYSIA LAW AND COMMON

LAW.

NORAZLINA BT ABDUL AZIZ

Pensyarah Undang-Undang, UiTM Cawangan Johor

ABSTRACT

Marital rape is an offence that can occur in any matrimonial home. It is a

combination of family matters and criminal offence. There are lack cases being
filed on marital rape in court. This happens due to the situation where the
women themselves are not aware that marital rape is an offence under the law.
Women as they are created to be full of emotion are willing to sacrifice their
right that covers protecting their family name, status of their husband and
their children. There are also women who have strength of loyalty thinking that
they are the reasons why the husband had acted that way and it is their duty to
obey to whatever conduct of their husband. This article does not tend to
provoke wives to take action against their husband, but it is just a share of
knowledge to those wives who have been under violent sexual abuse. Most
religion agreed to the facts that wives are not property or slave of their
husband, whereas they are partner who need tender care and guidance in life.
That duty is put on the so-called husband. The comparison on Malaysian view
and Common Law view will shed some lights as to what extends the law
protects wife under the claim of marital rape.

INTRODUCTION

Much of the scholarly attention that has been given to marital rape has
emerged from the legal community. This has occurred because throughout the
history of most societies, it has been acceptable for men to force their wives to
have sex against her will. According to the traditional ideas of patriarchal
control and rigid sex roles, woman had no legal status apart from their
husbands. Therefore once they are married the legal identity of wife merged
into that of the husband.
Researchers in United States estimate that between 10% and 14% of
married women experience rape in marriage. When researchers have examined
the prevalence of different types of rape, they have found that marital rape
accounts for approximately 25% of all rapes.(Randall.M.Haskings, 1995: 6).
Jurnal Akademik UiTM Cawangan Johor 71

I believe that this amounts is scattered all over the countries of the world. Out
there, there are wives who are involved in physically abusive relationship.
Where do they seek protection? Do they have any right to seek for protection
since they are legally bound by the marriage contract that they entered into?
This is going to be elaborated more in my discussion

DEFINITION OF WOMAN AND WIVES

Blackstone:
- “ By marriage the husband and wife are one person in law, that is the
very being or legal existence of women is expended during the marriage
or at the least is incorporated and consolidated into that of the husband;
under whose wing, protection and cover she performs everything, and is
therefore called in our law French a feme covert femine vivo.”

A wife, is said to be covert baron or under the protection and influence of her
husband, her baron or lord and her condition during marriage is called
coveture.(CH Tan, 1989: 121)

J.S Mill said: (CH Tan, 1989: 122)

‘A female slave has in Christian countries on admitted right and is considered

under a moral obligation to refuse to her master the last familiarity . Not so the wife;
however brutal a tyrant she may unfortunately be chained to though she may know
that he hates her and though may feel it impossible not to loath him, he claim from
her and enforces the lowest defrain of a human being made the instrument of an
animal function contrary to her inclination’

Women is considered property of her husband or her father. Therefore

for her husband forcing sex on his wife was merely making use of his own
property. In the marriage contract also involve legal obligation on part of the
wife to have intercourse with her husband. The women is deemed to have
consented to be his sexual partner when she marries him. This view has been
held by almost all religion and customs in this world.

DEFINITION OF RAPE AND MARITAL RAPE.

The traditional definition of rape in the United States most commonly was,
Marital Rape: A View On Malaysia Law And Common Law 72

“ sexual intercourse with a female not his wife without her consent”
(Barshis. V, 1983: 6)

This definition has been commented as it provides husbands with an

exemption from prosecution for raping their wives- a license to rape.
(Finkelhor. D & Yllo.K, 1985:5)
Rape means an act of committing the crime of forcing sexual
intercourse on a woman or a girl,( A S Hornby, 1992:1038) .Rape is also an
unlawful sexual intercourse of a man the wife without her consent.( Sexual
Offences( Amendment Act) 1976.

Next we will refer to Malaysian legal definition of rape

Under the legal sense there are two type of rapes, that is
i) Forcible rape( as defined above)
ii) Statutory rape(an act which force and violence are not used to effect
sexual intercourse but consent is not given in a legally binding sense
because the person is under age(Penal Code, 1995: section 375(5)) or
mentally in competent( Penal Code, 1995: section 376) and therefore
does not have the right or ability to give such consent.

This provision only provides for offences of rape against a woman and
no mentioned of a wife. To determine whether a woman includes a wife or not
we have to refer to section 375 of the Penal Code.

Section 375 under explanation 1, further said that—A woman:

(a) Living separately from her husband under a decree of judicial
separation or a decree of judicial separation or a decree nisi not made
absolute; or
(b) Who has obtained an injunction restraining her husband from having
sexual intercourse with her.

Women under this section shall be deemed not to be his wife for the purposes
of this section. Explanation 2 then states about a muslim woman, where a
muslim woman living separately from her husband during the period of ‘iddah’
which shall be calculated in accordance with Hukum Syara, shall be deemed
not to be his wife for the purpose of this section.
What can be said here is that, a wife who is under the situation
mentioned under the explanations can seek protection from the code. As for
those innocent wives who does not dare to seek judicial order or is not in a
process of getting a divorce are not protected here.
Jurnal Akademik UiTM Cawangan Johor 73

From the above mentioned statements, my understandings is that

marital raped can be defined as any unwanted intercourse or penetration
obtained by force or without the consent of the wives. This will include wives
who are raped by their current husband or previous husband.

THE ELEMENTS OF RAPE

It is important for us to know the elements of rape in order for us to see under
what circumstances that a husband is said to have commit rape towards his
wife. The husband might have battered or assaulted his wife but not necessarily
that he has raped her. The followings are the elements of rape:
Under the Malaysian context, (Penal Code: section 375) stated that a man
who has sexual intercourse:
 against the woman’s will
 without her consent
 due to her misconception or fright
 due to her mistaken believe
 Without her capability of understanding the act
 She is underage whether with her consent or not

He is said to commit the offence of rape. Meaning that the occurrence

of any one of the above conditions may constitute rape under this provision.
Explanation to section 375 further said that:

Penetration means: sufficient to constitutes the sexual intercourse necessary of

the offence of rape. If we refer to legal terms of penetration, it says that
“ penetration is when a man’s penis enters a woman’s vagina.( Chhabra S,
1991: 163) However neither full penetration, rupture of hymen no ejaculation
of seminal fluid is necessary to support the charge of rape.( David Selfe &
Vincent Burke, 1998: 52). If the penis enters somewhere else or the husband
uses his tongue, fingers or some other instrument he cannot be said to have
committed rape. However he still can be prosecuted under section 377A of the
Penal Code- attempt or assisting.
In other words, to prosecute a rapist we have to prove his intention of
doing so(elements of mens rea)which can be proved by the surrounding
circumstances and the act of penetration(element of actus reus). Therefore for
us to say that a husband has committed marital rape towards his wife the above
elements have to be proved.
Marital Rape: A View On Malaysia Law And Common Law 74

If the above elements have been fulfilled can a husband be charged

under the offence of rape? If we were to refer to the present statute, then the
answer is no unless the conditions as stated above are fulfilled.
For example, what if while drunk the husband commit violence
towards his wife? If he forced his wife to have sexual intercourse then he is
said not to commit any sin as he was only exercising his right.( Borton J.L,
1992: 260). Even though he did that without her consent which if applicable to
any other man he may be convicted of rape.

MARITAL RAPE UNDER MALAYSIA STATUTE

Refering to section 375 of the Penal Code, before the amendment in 1989 the
code was silent regarding the marital exemption in rape. The closest it went to
touching the matter was through its exception, which read:

“sexual intercourse by a man with own wife, the wife not being under 13 years
of age is not rape.”

However with the new amendment, the law regarding marital rape is now more
defined. By inserting a new exception in place of the one mentioned above, the
Malaysian Law has stated its stand. The exception provides:

“ sexual intercourse by man with his own wife by a marriage which is valid
under any written law for the time being enforce, or is recognized in the
federal as valid, is not rape.”

The amendment went further by inserting explanation (1) and (2) of the
section. Explanation (1) states: a woman:
(a) living separately from her husband under a decree of judicial
separation or a decree nisi not made absolute or
(b) who has obtained an injunction restraining her husband from having
sexual intercourse with her shall be deemed not to be his wife for the
purpose of this section

Under explanation (1), there are three important matters that should be
clearly understood:
First and foremost, decree of judicial separation and its effects on marriage.
According to section 64(2) of the Law reform( Marriage & Divorce) Act
1976, when a court grants a decree of judicial separation, the parties are not
bound to cohabit with one another. By filling for a judicial separation,
Jurnal Akademik UiTM Cawangan Johor 75

petitioner( would be able to stop her husband from forcing to have sexual
intercourse with him, even if divorce is not in contemplation of the petitioner.
A decree of judicial separation can be sought at anytime, instead of waiting for
two years from the date of marriage, as in the case with divorce.

MARITAL RAPE FOR MUSLIM WOMEN IN MALAYSIA

As we can see, there are provisions under section 375 above that explain the
status of a muslim women during her ‘iddah’ period, therefore we will explain
this according to Islamic view on marriage and period of iddah.
Marriage, according to the classical juristic definition, is a contract
prescribed by the legislation and it denotes the lawful entitlement of each of
the parties there to enjoy the other in the lawful manner .(Abd. Ghani Azmi,
1995: 237)

Some modern Arab laws are more logical for example defining marriage as:

“ a Legal part of association and solidarity between a man and a

woman , meant to last with the objective being to maintain chastity and lawful
wedlock, multiplying the nation through founding a family under a patronage
of the husband on solid grounds, to ensure for the contracting parties the
discharge of the responsibilities related there to in security peace, love and
respect”( Abd Ghani Azmi, 1995: 237).

Marriage by itself is a proclamation among the public to the effect that

two souls have united for procreation and legalizing of children and that others
have got no right to interfere in the conjugal relation of the married couple. In
Islam, marriage is not only regarded as a union between man and woman for
the gratification of sexual lust, but a social contract with wide varied
responsibilities.
In Islam rape with marriage does not exist. This is because Islam sees it
as the wife’s duty to provide sexual pleasure to her husband at all times. In
other Hadith of Abu Hurairah r.a reported Holy Prophet as saying:

“ by him in whose hand is my life, when a man calls his wife to his bed, and
she does not respond, the one who is in heaven is displeased with her until
he(her husband)is pleased with her”(Bukhari & Muslim)(Rozreen bt Wan
Ramli, 1994: 67)
Marital Rape: A View On Malaysia Law And Common Law 76

The conjugal act is the right of the husband and wife cannot deny him
this right without any valid reasons. Only if she is having menstrual period or
post natal bleeding, falls ill or fasting. Whereby if the husband on these
circumstances insist to have sexual intercourse with his wife he commits a sin.

Hadith Ibnu Abbas r.a

“ When a man intercourse with his wife while she is in menses, he shall give
half in dinnar in arms”(Tarmizi, Abu Daud, Nasa’I, Ibnu Majah)

However, despite of all these heavy responsibilities put on the women’s

shoulders Islam also place emphasis on sexual etiquette. The husband must
make sure that his wife is happy when engaged in sexual intercourse and she is
ready to receive him mentally physically and emotionally. As explain in Al
Quran

Surah Nisa : 19
“ consent with then(your wives) in kindness for if you hate them it may happen
that you….’

Abu Bakar as siddiq r.a

“ One who treats badly those under their authority shall not enter paradise”
(Tarmizi & Ibnu Majah)

Under the offence of zina there are no different between having sexual
intercourse with consent or without consent. Consent can be used as a defense
as to any party who commits ‘zina’ without her consent.

Sabda Rasulullah

“Di angkat kalam ke atas mereka yang tersilap, terlupa dan dipaksa”

The fact that one of the accomplices in the crime of fornication(zina)

does not satisfy all the conditions required for the punishment, constitute no
excuse for the others but still punished for rape.

Shafie: a woman who has lost her virginity, caused by an introduction of the
penis, either by mutual error or by violation, there is necessary payment of the
proportion dower which the women could claim after being deflowered, as
Jurnal Akademik UiTM Cawangan Johor 77

well as an indemnity for the offence. Other authorities woman can claim only
the proportional dower that she was worth before her deflowerment.
A muslim woman living separately from her husband during the period
of ‘iddah’ which shall be calculated in accordance with Hukum syara; shall be
deemed not to be his wife for the purpose of this section.
This provision is specifically for the muslims because Law Reform
( Marriage & Divorce ) Act 1976 neither apply to a muslim nor to any person
who is married under the muslim law.
The period of ‘iddah’ is imposed on the women who are being divorced
by their husbands. This period is to determine that the wife is not carrying her
husbands child. The ‘iddah’ period varies from one woman to another. For the
purpose of this discussion, I will only discuss two categories of woman.

First, the general rule is that, woman divorced by her husband, then
her “iddah” period will be 3 months or 3 menstrual cycles(quru’). This is an
accordance with surah al Baqarah: 228( Abd Ghani Azmi, 1996: 391)

“Dan isteri-isteri yang diceraikan hendaklah mereka beriddah selama

3 quru’”

Meanwhile the iddah period for pregnant wife is until the time she delivered
her baby. This is based on surah at Talak: 4

“Dan iddah bagi perempuan yang mengandung adalah sehingga

mereka bersalin”

In other word a muslim women, in her ‘iddah’ is no longer a wife to

any men. Therefore at this time, the husband’s right to copulation with her has
ceased. If he forces himself upon her, he could be guilty of of rape under
section 375 of the Penal Code.
As a conclusion, it could be said that the Malaysia Law does not
recognised rape within marriage as a whole. Rape could only occur, if and only
if the women is no longer his wife through a divorce, or the woman shall be
deemed not to be his wife through a judicial separation or an injunction
restraining the husband from molesting her. As long as they are still married to
one another, there is no way a man could be guilty of raping his own wife.
Marital Rape: A View On Malaysia Law And Common Law 78

MARITAL RAPE UNDER COMMON LAW

As we were once the colony of British and with the existing Civil Law Act
1956, we are bound to use the law as applicable in the England( Civil Law
Act, 1956: section 3) on the date specified in the act, on any occasions where
there exist a lacunae(No certainty in our law on specified issue). Before the
amendment we have no certain protection of law on marital rape. Therefore we
will use cases in Common Law to explain the situation in Malaysia.

In the case of Fender v St John Mildmay( 1938) AC 188

The judge say that, once a decree nisi granted even though it is not yet
been made absolute, if the husband forces sexual intercourse upon his wife he
is said to have commited rape under section 375 of the Penal Code.

R v O’ Brien( 1938) AC 189

It was said that a decree nisi effectively brings a marriage to an end.

Between the pronouncement of a decree nisi and the obtaining a decree
absolute, a marriage subsists as a mere technicality. There can be question that
by a decree nisi a wife, implied consent to marital intercourse is revoked.
Accordingly, a husband commits, the offence of rape if he has sexual
intercourse with her there after without her consent.
Sir Matthew Hale, Chief Justice in the 17th century England has make
a landmark stand for almost 260 years in England on the matter of a husband
ability to commit rape towards his wife. He wrote that:

“The husband cannot be guilty of a rape committed by himself upon his

lawful wife, for by their mutual matrimonial consent and contract, the wife has
given herself unto the husband which she cannot retract”( Russell D E H,
1998: 17)

On the strength of Lord Hale’s statement alone, the husband’s

immunity was judicially recognized in England and many other countries who
based their legal system on England Law.
Jurnal Akademik UiTM Cawangan Johor 79

This established the notion that once married, a woman does not have
the right to refuse sex with her husband. Consent deemed immunity given by
the wife to her husband.
Later the enactment of Domicile and Matrimonial Proceeding Act
1973, makes the wife’s domicile will no longer be the same as her husband’s
merely because she is married to him. ( Nor Aini Abdullah, 1995: Ivii) It will
be decided on the facts of her residence and intention in some way as in the
case of a men or an unmarried woman.
However that is not able to protect the wife’s right. This is because the
wife body is still the property of her husband. The notion that a women had the
right to deny her husband in sexual cases to her body would have been
inconsistent with the social expectations regarding married woman which were
embodied in legal institution covertures, the laws of inheritance, spousal
immunity for torts and others.
Under the Common Law, there is no laws protecting wives from sexual
attacks by their husband. To see this clearer we will look into a few cases.
The opinion of Lord Hale as stated above has been a stand for such a
long term. It is accepted without any hesitation. R v Clarence ( 1888) 22 QBD
23
In this case accused was convicted under section 2 of Offence Against
The Person Act 1861 of unlawfully and maliciously inflicting grievous bodily
harm upon his wife and under section 47 of the same Act of an assault against
her, occasioning actual bodily harm. The Accused had contacted gonorrhea and
subsequently infected the wife and whom he had not told his condition. He
argued that she knew his condition and she consented. Held (ct of crown cases
majority) to communicate an infectious disease to prosecutrix without violence
and therefore does not conflict grievous hurt upon her with the meaning of
section 20, that consent negative what would otherwise have been an assault.
The followings are the words of the judges deciding this case.

Pollock B said that husband intercourse with the wife

“ is done in pursuance of the marital contract and of the status which

was created by marriage and the wife as to the connection(intercourse) itself is
indifferent position from any other women for she has no right or power to
refuse her consent such a connection may be accompanied with conducts with
which amounts to cruelty as where the conduct of the wife is such that she will
suffer from such connection”
Marital Rape: A View On Malaysia Law And Common Law 80

Mills J said:
“ if intercourse under the circumstances now in question constitutes an
assault on the part of the women, it must constitute rape, unless indeed as
between married persons rape is impossible, a proposition to which I
Certainly am not prepared to assent, therefore which seems to me no sufficient
authority”

The above shows that both Pollock B and Mills J deny the fact that a husband
can be guilty of raping his wife and therefore agreed with what was said by
Lord Hale

R v Clarke ( 1949) 2 All ER 448

In this case the courts dare to deviate from Hale’s verdict. The issue that was
raised in this case was the extent of the exception rule whereby the wife’s
consent to the copulation could be revoked in certain situations
The facts of the case is as follows: the accused has been convicted for raping
his wife and forced to have intercourse while living apart. Under the separation
order that she obtained from the justices.

Bryne J : Husband immunity was lost where justices made an order that a
couple should no longer be bound to cohabit with the husband. This shows that
indirectly his lordship accepted Hale’s doctrine as generally correct. Only
when husband and wife are separated by legal means the husband can be guilty
of rape and not during the marriage is still going on.

R v Miller (1954) 2 QBD 282

Wife petitioned Divorce on husband’s adultery. Before the petition heard,
husband have intercourse with her against her will…It was alleged that he used
force and therefore charged with rape

Lynskey J:
Accepting Hale’s propotion to be corrected, held that there had been no
separation order, and no judicial separation and no agreement to separate.
Therefore he could not hold that the wife petition as an end to her obligations,
for it might be rejected and the men would still be subsisting. This means that
the consent to marital intercourse given in the marriage contract would still be
revoked.
Jurnal Akademik UiTM Cawangan Johor 81

R v O’Brien( 1979) 3 All ER 663

Court extends further to cover cases where a Decree Nisi had been granted.
Husband at the stage the marriage only existed technically. A Decree Nisi
revoke the wife’s implied consent to intercourse and a husband commits the
offence of rape if he has sexual intercourse with her or without her consent.

R v Steele( 1976) 65 Cr. App. Rep 22

Husband gives understanding not to molest his wife from whom she was living
apart. Court of Appeal husband that the understanding in lieu of an injunction
enforceanle as it relieves the wife of her marital obligations. The husband can
be convicted of rape if he has intercourse with her without her express consent.

Roberts( 1986) Crim. LR 188

Appellant was convicted raping his wife. Marriage broken down in 1984 he
was refrained from molesting or going near to his wife for to months, ouster
order made ordering him out of the matrimonial home. Some day formal dead
of separation entered into does not contain non cohabitation clause non
molestation clause.

Trial J rejected a submission that the wife implicit consent to intercourse with
her husband be revived when the injunction ran out in August 1984. The
appellant appeal.
Dismissing the appeal the court said that:
“ The court by an order made clear that the wife’s consent to sexual
intercourse with her husband implicit on the act of marriage no longer exist”:
Therefore a simple agreement may revoked consent of wives

After the long period of denial of the rights of wife to frame a charge of rape
towards her husband, there is a turning point and a light of hope for women on
this matter.

In R v R (1991) 4 All ER 481

Britians high court ruled that husband might be convicted of raping

wife. It therefore overtuned the almost 260 years “ woman sexual slavery”
The facts is that husband and wife parted, the wife complained that the
husband was forcing her to have sexual intercourse and left him and stayed
with her parents. She told her husband her intention of filing for divorce. There
was no legal proceedings taken place, after 22 days of failing the husband
Marital Rape: A View On Malaysia Law And Common Law 82

broke into her parents house and attempt to have sexual intercourse with the
wife against her will.
Owen J said:
“though generally speaking a husband could not in law rape his wife,
there is exception where the wife had withdrawn her consent to intercourse,
could be made informally and can be implied from her conduct”

The husband was later convicted on the charged of rape and sentenced
3 years imprisonment on the former and 18 months imprisonment on the latter.
Despite having a judicial stand recognizing husband’s rape against wife, there
still need to be protection outside the court. The wife may need an order
restraining her husband from the matrimonial home. Therefore in order to
tackle such situations a number of provisions were devised in England in form
of the Domestic Violence and Matrimonial Proceedings Act, 1976, the
Domestic Proceedings and Magistrate’s Courts Act 1976, the Matrimonial
Homes Act and the Supreme Court Act, 1981 to enable a spouse to apply for
injunctive relief from violence.
In addition to the injunctive relief, the last thing a battered woman can
do is to start the complication of a divorce, under the Matrimonial Causes
Act, 1973 by proving that marriage has irretrievably broken down.
Next an injunction restraining the husband from having sexual
intercourse with his wife. According to sec 103 Act 164, the court shall have
power during the pendency of any matrimonial proceedings or after the grant
of a decree of divorce, judicial separation or amendment, to order any person
to refrain from forcing his society on his spouse or former spouse and from
other acts of molestation( for the purpose of this paper, the injunction shall be
against the husband)
Any men who breaches such an order, can be found guilty under the
law which provides for it, but not under section 375 of the Penal Code.
( Shamsuddin Suhor, 1994: 110)

CONCLUSION

As the issue of marital rape worsens, many opinions have been given in trying
to solve the problem. The development in England may be ponder upon,
whereby after a long period of denying the liability of a husband to rape his
wife there is a change of the stand taken by the court. They recognizes the
possibility of a husband being guilty of raping his wife when there can be
proved that his wife has withdraw her consent. There is also protection that the
court may grant to the wives in order to avoid the continuous violence done
Jurnal Akademik UiTM Cawangan Johor 83

against them. The wives may either filed for divorce or apply for injunction
restraining the husband from interfering their lives.
In Malaysia there are no specific law governing marital rape. There is
also lack of cases reported on marital rape. The same dilemma haunting the
wives as stated above happens to the wives in Malaysia as well. On the
amendments of Penal Code, there is light given to this issue even though not
directly. Now the wife who is in a divorce or separation process, or those
muslims women in their iddah may seek protection under the Penal Code.
There is also injunction protection for them.
On one view, the protection from marital rape is given in Malaysia even
though not specifically stated under the statute. This is a positive reaction as
person who experience violence need to be protected. Another point to ponder,
with all the laws interfering into a sacred of live sharing between two couple,
can it be a factor that contributes to the increase of divorce couples nowadays?

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Marital Rape: A View On Malaysia Law And Common Law 84

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