An End to Marital Immunity for Rape in Singapore?

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After years of campaigning, marital immunity for rape is on its way out in Singapore. Almost. Sort of. In the very hour appointed for its death, it’s now due to reanimate in new forms. The idea that marriage legitimises sexual violence seems an unkillable zombie hydra.

On 11 February, the Criminal Law Reform Bill was introduced in Parliament, accompanied by media headlines announcing the imminent end of marital immunity. Once the Bill is passed, a man facing charges of rape will no longer be able to use the fact that the act took place within a marriage as a complete defence.

Marital immunity was initially introduced into the Penal Code during the colonial-era, and persisted in Singapore even when England abolished it in 1991. In 2007, during the last major Penal Code review, the Singapore Parliament declined to abolish it altogether. Instead, limited exceptions were introduced that made the defence inapplicable only where formal steps had already been taken—prior to the assault—to dissolve the marriage or obtain legal protection against domestic violence. Essentially, wives had to file the right paperwork in advance for their “no” to be respected by our rape law.

The new Bill comes after years of growing public disagreement with the law, including from us—a small group of friends who in 2009 started No To Rape, a campaign against marital immunity. Our motivations were simple: the law should protect all people from all forms of sexual violence. Sexual activity should be governed by respect for bodily autonomy and should only happen if all parties consent freely and voluntarily, without coercion or exploitation. We, and many others, object strongly to the idea that a marriage license can turn a “no” into a “yes”, or make violence legitimate.

Over the years we’ve watched change creep nearer at a glacial pace. In the unyielding Singapore policy environment, tiny shifts in content assume a seismic scale. In 2016, when the state responded to concerns expressed by other nations at the Universal Periodic Review, it finally stated that it was “actively working towards” the repeal of marital immunity. We cheered this bread crumb on the long path to reform with cautious optimism.

Almost three years later, with draft legislation in the works, we’d hoped to straightforwardly celebrate. We expected the law to vindicate the primacy of consent and bodily autonomy, rather than allow a patriarchal moral code to legitimise abuse. But, on reading the Bill, we had a shock.

Marital immunity will indeed be removed for non-consensual penetration and all other sexual violence perpetrated against an adult. But a new form of it has been retained—and indeed extended—for a range of sexual offences against minors, where those minors are found to “consent” to sexual conduct. Uniquely within a marital relationship, once a child turns 12, they are treated as able to meaningfully “consent” to a whole range of sexual activity with their spouses, who can plead this “consent” as a defence to criminal charges.

Sexual offences against minors

To understand why this is significant, we must look at the general landscape of sexual offences against minors. At the moment, in non-marital contexts, the Penal Code rightly prohibits adults from any sexual penetration with minors under the age of 16, regardless of the seeming cooperation of the minor. It is irrelevant whether the minor appears to have agreed to the act; the contact itself is criminalised.

The new Bill builds on this. It introduces new offences criminalising sexual communications with minors, engaging in sexual activity in the presence of a minor, or causing a minor to look at a sexual image, as well as offences concerning “child abuse material”. Once again, with all these offences, the prosecution does not generally need to establish non-consent.

These laws begin from the understanding that, relative to adults, minors are vulnerable due to their stage of physical and psychological development, and their social disempowerment. Minors may well have sexual feelings, but they cannot give adults full voluntary agreement to sexual activity amounting to consent. An adult who has sex with a minor is inherently exploiting them.

The Bill even protects young people between the ages of 16 and 18 from these forms of sexualised adult conduct, in the context of what it describes as exploitative relationships. These relationships are identified based on factors like age difference, the nature of the relationship, and the degree of control and influence of the older person. The Bill identifies specific relationships which are presumed to be exploitative, such as teacher/student or coach/trainee. This recognises that a young person’s ability to freely give or withhold consent can be undermined by the presence of a power dynamic exploited by an authority figure.

Minor “consent” within marriage

Yet, according to the Criminal Law Reform Bill, this understanding of minors’ vulnerability doesn’t apply within marriage. The Bill sets up “consent” within marriage as a defence, allowing an adult to sexually penetrate a minor spouse aged 12 or above, or to create “child abuse material” such as sexual images of that minor spouse. For the regime governing exploitative relationships with 16-17 year olds, relationships falling within the special list will no longer be treated as presumptively exploitative if the parties are also married.

What this Bill has done is to carve out child marriage as a scenario in which a form of marital immunity will continue to apply, allowing adult offenders to present children’s agreement as “consent”, even as it repeals marital immunity in situations involving adults. This is extraordinary given that child marriage is in itself a major human rights violation under the Convention on the Rights of the Child, to which Singapore is party. Far from negating the presumption of exploitation, we contend, it is itself exploitative. Children are likely to be incomparably more dependent on a spouse—in multiple ways, physical, economic, social and psychological—than on a stranger or other, non-familial figures. If someone tries to groom you online, you might be able to log off; if your coach makes advances, you might be able to go home; if a teacher abuses you, you could perhaps tell your parents. How much harder is it to freely say no to the person to whom you are legally bound, and who is likely your primary source of material and social support?

Few marriages involving minors are solemnised in Singapore (there were 11 successful license applications for marriages involving under-18s in 2018). Yet it reflects disturbingly on our approach to bodily autonomy when our laws ensure sexual access to minors in marriage, but for instance staunchly refuse to recognise same-sex unions registered elsewhere between adult equals.

The bizarreness of this situation is further highlighted by the Bill’s new offences pertaining to child sex dolls. Sexual interest in minors is so unacceptable that it’ll be illegal to possess inanimate sex toys that look like minors, even for acts of private gratification involving no other human beings—yet sexual access to vulnerable, flesh-and-blood minors can be protected by a marriage certificate.

Protecting and promoting consent

These developments underline the urgency of better developing our societal understanding of consent and how it is affected by social power. It is important that beliefs about consent are rooted in informed and respectful understanding, not myth or stereotype. And it becomes even more important as the Bill codifies the defence of “good faith” belief in consent “by reason of mistake in fact”—what kinds of mistaken belief will be treated as exculpatory?

Nuanced understandings of consent are hardly new to Singapore law. Court rulings have held, for instance, that past instances of sexual intimacy do not constitute consent in subsequent encounters, and that a lack of struggle or a state of submission due to fear do not amount to consent. Given this, it is disappointing that the Bill did not take up recommendations to put the rich case law on consent on a statutory footing.

That said, we have never believed that changing the law is the end of the story. Much more is needed to improve support for survivors of violence and promote general understanding of consent. Indeed, in 2017, UN Experts on the Convention on the Elimination of All Forms of Discrimination Against Women highlighted gender-sensitivity training at all levels of the criminal justice system as one of two key priorities for Singapore. The retention of marital immunity for sexual offences against minors shows that the work on this has some way to go.

Notes

Currently, S376A penalises acts of sexual penetration against minors under the age of 16 (regardless of considerations of “consent”), except where marital immunity applies. Under the Bill, under-16 spouses are deemed able to “consent”.

S375(1)(b) provides that penile-vaginal penetration of a girl under the age of 14 is rape (regardless of considerations of “consent”), except where marital immunity applies. Under the Bill, under-14 spouses are deemed able to “consent”.

The proposed new 376EB provides that sexual communication with a minor is an offence, except where marital immunity applies. Under the bill, under-16 spouses are deemed able to “consent”.

The proposed new 376ED provides that sexual activity or image in presence of minor is an offence, except where marital immunity applies. Under the bill, under-16 spouses are deemed able to “consent”.

The proposed new s377BN provides for defences to some new offences concerning the production, distribution, possession or transactions in “child abuse material”, where the material in question depicts only one or both parties in a married couple, and the under-16 spouse is found to “consent” to the relevant conduct, which likewise is only between the spouses.