CRITICAL THINKING GROUP ASSIGNMENT

Should marital rape be considered as a crime?

Introduction

Marital rape is the sexual acts committed without the wife’s consent by her husband
or ex-husband. This topic is controversial as many countries still struggle to
criminalize marital rape. Based on the research done by the United Nations in 2019,
only four in ten countries have criminalized marital rape. In more than 50 countries,
including the US, Nepal, Britain and South Africa, it is still a crime for a husband to
rape his wife but that it is legal in most Asian countries. In Malaysia, according to
Deputy Minister in the Prime Minister Department Mohamed Hanipa Maidin, the
government has no plans to amend the law to criminalize marital rape. Until today,
Malaysia’s rape law is still excluded the married couples. Malaysia’s rape law which
is Section 375 of the penal code states that sexual intercourse by a man with his wife
is valid under any written law as long as the husband do not make any hurt to wife
when carrying out sexual intercourse. To make it simple,it is not a crime to rape your
partner as long as you do not hurt your partner when having sex in Malaysia’s rape
law.

Law’s perspective

In 21st century,there are still different voices arguing to criminalize marital rape. For
example, our neighbour country, Singapore had criminalized marital rape from 1
January 2020. Singapore government has considered spousal rape as a criminal
offense and repealed marital immunity for rape (Koay, 2019). According to the
International Centre for Women (ICRW) and the United Nations Population Fund’s
(UNPFA), one-third of husbands committed the sexual act without the consent of
their wives (Samuri, 2018). This is absolutely a good news for victims in Singapore
which marriage is not considered as a license for sex and they had been protected
under the law (Ram, 2019). As a result, it can reduce the amount of victims in
Singapore because their human rights are being offered by government.

On the other hand, Malaysia and India are not criminalizing marital rape and both of
them have an exemption on rape law. Indian Penal Code stated that forced sex in
marriage as a crime only if a man raped his wife which below the age of 15 (Libby,
2019). For them, marriage is sacred and marital rape is not suitable to be considered a
crime because it may cause the relationship between married couples broken.
(Keerthana, 2019). In fact, married women should submit themselves to their husband
if he requests for sexual intercourse (Chatterjee, 2016). Based on the rape law in
Malaysia, the husband who causing hurt to have sexual intercourse will face a
maximum of 5 years of imprisonment. The Sharia law stated that the combination
words of ‘marital rape’ is a new term and is not used in Islamic traditional books
(Mukhlis & Awang, 2017).
Victim’s perspective

From a victim perspective, we strongly support that marital rape should be considered
a crime. It is a betrayal of trust and intimacy in marriage. As a victim, it is difficult for
us to accept our victimization. It is emotionally painful to acknowledge that one is
being betrayed by the person one depends upon for love and support (Williams,
Prevalence and incidence of sexual assault in marriage, 2007). This is one of the
reasons why marital rape is underreporting compared to other types of rape. In
addition, the public may think that this is the responsibility of women’s role in
marriage. According to family law practitioner, Honey Tan said that a wife isn’t
husband property. Being married does not mean it is the license to rape your partner.
By setting marital rape as a crime, victims understand about their rights to refuse
unreasonable requirements from the rapist in marriage, included sex.

Furthermore, marital rape is considered as another form of physical abuse to them.

Based on research who interviewed 115 victims, there is 72% of them experienced
painful intercourse, 63% have vaginal pain, 18% got unwanted pregnancies and more.
There are also some psychological consequences of marital rape include anxiety, fear
of men, lack of sleep and more (Williams, The consequences of wife rape, 2007). A
victim who got depression after experienced marital rape said that she is still trying to
overcome her mental illness that comes with the shame and disgust even after the
rapist have got sentenced by the court. As a result, marital rape should be considered
as a crime due to its dark consequences and to raise awareness among the public.

Marriage couple’s perspective

Government should not criminalized Marital Rape because it would destroy the
sacrosanct institution of marriage and disturb the balance of conjugal rights and
obligations in a marriage.(Vigneswar, V., & Kannappan, M. ,2018) It is because the
law would deny husband’s right to have sex with his wife and would encourage
husband to carry out offense of adultery as wife can not fulfil his sexual needs.
Criminalization of marital rape also provide opportunity for the other half partner to
misuse the power of law when there is argument happen among them. It would
probably turn out to give chance to another marriage partner to threaten the other half.
Therefore, criminalization of marital rape would not be a protection between a
marriage couple, instead it becomes a way to threaten each other when there is any
quarrel happen in a marriage.

Furthermore, there is a consistent finding shown men are motivated to rape their
partners under conditions of carrying out sperm competition. (McKibbin, W. F.,
Shackelford, T. K., Goetz, A. T., & Starratt, V. G. (2008) According to research, men
who spend a greater proportion of time apart from their partners since the couple’s
last copulation and therefore face a higher risk of sperm competition report that they
find their partner more attractive, are more interested in copulating with their partner,
and believe that their partner is more interested in copulating with them (Shackelford,
Goetz, McKibbin, & Starratt, 2007; Shackelford et al., 2002). Moreover, men who
have partners who committed infidelities, or suspected to commit infidelities have a
higher chances to perform sexually coercive behaviors such as rape due to risk of
sperm competition.(Shackelford, Goetz, McKibbin, & Starratt, 2007; Shackelford et
al., 2002) According to psychology, men have genetic component which may cause
them unable to control their behaviors as long as their sexual desires. Thence,
physiological needs should also be considered as an exception for marriage couple
before criminalizing marital rape.

Our Stand

From our stand, we think that marital rape should be criminalized after looking from
different perspectives that has been stated above. Marital rape has threatened human
rights especially for woman. In order to reduce the amounts of victims suffered from
marital rape, it is good for government to consider criminalization of marital rape by
offering people chances to reject unwanted sexual intercourse requested by partner.

Human as an asset has been a conservative thinking in 21st century. Everyone deserve
to have their own right to protect for themselves instead of being an asset in a family
or a society. We thinks that government should be more open-minded to consider the
consequences and benefits of criminalizing marital rape. The psychological and
physical hurt to the marital rape victims should also be giving a concern by
government.

At the same time, the rights of marriage couples should also be considered when
criminalizing marital rape in order to avoid people misuse the power of law to
threaten their partners in an argument.

Proposed Solution

Government should criminalized marital rape in order to protect one’s rights.The

government should create a sentence to punish those who misuse the power of
marriage to threaten their partners. However, there should be some rules to
criminalized the marital rape. For instance, victims should provide clear and sufficient
evidence as a proof before the case being successfully in charged. This action is to
avoid people misuse the power of law when they faces argument or quarrel with their
marriage partner. By criminalizing marital rape, it is like killing two birds with a
single stone. It is not only protecting one’s rights, but also balancing the gender
discrimination at the same time.