The United Nations Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) Committee called for Putrajaya to criminalise marital rape from the year 2006 onwards. However, the Malaysian government has been reluctant and slow in recognising as well as codifying marital rape as a criminal offence.
On International Women’s Day last year, the Women’s Aid Organization (WAO) reiterated their stance on the criminality of rape and stressed that its international standards do not cease to exist even when rape happens within a marriage. In defiance to international pressure, Malaysia has yet to ratify the criminalisation of marital rape as recommended in the United Nations Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) despite being a signatory to the Convention.
Marital rape is recognised in the CEDAW Committee’s General Recommendation 19 (“the Recommendation”), which states that “[w]ithin family relationships, women of all ages are subjected to violence of all kinds, including battering, rape, [and] other forms of sexual assault.” In accordance with the Recommendation, the United Nations CEDAW Committee called for Putrajaya to criminalise marital rape from the year 2006 onwards. However, the Malaysian government has been reluctant and slow in recognising as well as codifying marital rape as a criminal offence. The Member of Parliament for Seputeh, Teresa Kok, stated in 2017 that the delay stemmed from the difficulty in establishing proof that constitutes to marital rape in court, and the predicament in describing such event to the public, especially to the mullahs. Since Malaysia does not recognise marital rape as a crime, the term does not exist in any Malaysian legislation. Thus, for the purpose of this article, the author shall turn to the definition given by US Legal, which defines marital rape as any unconsented sexual acts that are directed to the victim by a spouse or ex-spouse. Marital rape usually occurs when the solicitation of sex is done via intimidation, threat, force or in other situations in which the element of consent cannot accrue.
This article aims to provide readers with insights on the common law standing of marital rape, the problems with the Malaysian statutory provision that addresses this issue as well as the author’s comments on the need for marital rape to be criminalised in Malaysia.
II. DOES MALAYSIA HAVE ANY STATUTORY PROVISION ON MARITAL RAPE?
Although the term “marital rape” is not found in any legislation, S.375A of the Malaysian Penal Code does provide punishment for a husband who solicits sex via intimidation and causing hurt to his wife. The section states that:
“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.”
Since this section clearly indicates that the act of a husband harming his wife with the purpose of soliciting sex is an offence, why is there a need to criminalise marital rape?
WAO’s executive director Sumitra Visvanathan was of the opinion that the criminalisation of marital rape is needed as S.375A of the Penal Code neither explicitly makes consent a prerequisite to conjugal acts nor does it punish the perpetrator who forces intercourse when consent is not given.
II. MARITAL RAPE: THE COMMON LAW EVOLUTION
S.375A of the Penal Code has been in force since 2007. However, there are not many Malaysian cases that have dealt with the aforementioned section except for one to date. Therefore, the author shall have to look into the English cases in a chronological order to see how the English courts interpret the issue of marital rape over time, and the current common law standing on marital rape.
In 1736, Chief Justice Matthew Hale, in the History of the Pleas of the Crown  wrote: “But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”
For many years after the publication of Hale's work, there appears to have been no substantive challenge until R v Clarke. In this case, the wife had already obtained a separation order which stated that she was no longer bound to cohabit with her husband. Hence, she was living separately from the husband after the issuance of the order.
The counsel for the defendant submitted that rape occurring within a subsisting marriage is not an offence at law. It was held that although there was a general proposition of law that a husband cannot be guilty of raping his wife, the separation order issued by the court implied the withdrawal of the wife’s consent to marital intercourse. Hence, the husband was found guilty of marital rape.
The reasoning behind this decision was that a husband obtains rights over his wife’s body through a lawful marriage, but the consent of the wife to marital intercourse can be revoked via another process of law, such as a court order. An exception to the general principle by Hale CJ was created.
A problem arose in a later case of R v Miller. The wife had petitioned for a divorce, but the petition was not yet heard when her husband forced himself upon her. Sadly, as the petition had not been heard and granted by the court, it did not amount to a revocation of the consent to marital intercourse impliedly given by her at the time of the marriage Therefore, the husband could not be guilty of marital rape.
Another exception to Hale CJ’s principle was formed 20 years later in R v O'Brien. The court held that a decree nisi, which is a provisional decree of divorce that will be made absolute on motion unless cause is shown against it, amounted to the revocation of the wife’s consent to marital intercourse. The husband was charged with marital rape.
In R v Roberts, the marriage between both parties had broken down and the wife applied to the court for relief. The court placed an injunction prohibiting the husband from molesting or going anywhere near his wife. At the same time, the court also made an ouster order, ordering the husband to leave their matrimonial home. They also entered into a formal deed of separation.
However, the deed did not contain a non-molestation clause. The court held that the lack of such a clause did not imply that the consent of the wife regarding marital intercourse was revived after the injunction. As long as the parties had by agreement, or the court had by order or something equivalent to an order, made it clear that the wife's consent to intercourse no longer existed, her consent was considered revoked. The case suggested that a simple agreement between husband and wife can amount to revocation of consent to sexual intercourse.
In a more recent case of R v C  which was decided in the Sheffield Crown Courts, Justice Simon Brown took the bold approach of adopting the position of the law in Scotland and dismissed the long history of the marital exemption to rape.
In Scotland, the law regarding the issue of marital rape has developed through the landmark decision in HM Advocate v Duffy. The current standing is that a husband can be convicted of raping his wife even though there is no legally enforceable agreement or court order relieving them of the obligation to cohabit.
Lord Robertson in Duffy said:
“...I can see no logic in justifying such a law by making a differentiation between a man and woman who happen to have gone through a ceremony of marriage and ones who have not; and I do not understand why the mere fact that the marriage bond has never been formally broken should make a difference... To some extent, it might be a question of degree, but I do not think that it can be affirmed as a matter of principle that the law of Scotland today is that a husband in no circumstances can be guilty of the crime of rape upon his wife.”
In essence, the current standing of the common law on marital rape has evolved to dismiss the marital exemption to rape entirely.
III. MALAYSIAN POSITION: DOES SECTION 375A PROVIDE REASONABLE PROTECTION FOR MARRIED WOMEN?
A. Consensual Intercourse
According to S.375(b) of the Penal Code, a man is said to commit rape when he has sexual intercourse with a woman without her consent. The Penal Code further provides S.375A which includes the punishment for a husband who hurts his wife in order to have sexual intercourse with her.
Unfortunately, the issue of consent is not brought up at all in S.375A, which means that consent does not play any role in delegitimising intercourse — a worrying issue previously voiced out by Sumitra Visvanathan. Consent should play an even bigger part in instances of marital rape.
Malaysia remains constrained by the old English presumption that a married woman is considered to have given her consent to marital intercourse by the contract of matrimony, and that consent cannot subsequently be revoked as marriage is for life. However, it is the author’s opinion that there should not be such concept as irrevocable consent that strips a woman of her bodily autonomy.
The author does not deny that both spouses have conjugal rights towards each other. However, a wife is an individual who has her own will. She has the right to say “no” when she does not want to perform marital intercourse with her husband. When a husband still forces his wife to perform sexual intercourse, it is considered rape as he does so without her will and consent. Conjugal rights come with boundaries that neither husband or wife should attempt to cross, especially when no consent is present.
In essence, consent should be a vital part in S.375A of the Penal Code as it is the reasoning behind why marital rape should be criminalised.
B. The Absence of a Minimum Term for Imprisonment
S.375A of the Penal Code only states that the husband perpetrator shall be punished with imprisonment for a term which may extend to five years. The provision does not provide a minimum level of punishment, which is baffling as the convicted perpetrators may get away with light punishment.
Of course, it is still up for to the Malaysian courts to decide by looking at the circumstances and facts of each case involving marital rape. However, the fact still stands that the maximum punishment is only five years in prison.
This provision may be compared to S.375B of the Penal Code which sets out the punishment for committing gang rape. It states that “whoever commits gang rape shall be punished with imprisonment for a term of not less than ten years and not more than thirty years.” It is clearly laid out that the minimum punishment is ten years of imprisonment and the maximum punishment is thirty years of imprisonment, which will deter future offenders and ensure that justice is served. This proves the point that marital rape is deemed to be a relatively lighter crime as compared to other form of rape such as gang rape, and further begs the question on whether the threat of five-year imprisonment would act as an effective deterrence.
In short, since the element of consent is deemed as unimportant in S.375A, Malaysian women do not have any legislation to protect them from unconsented solicitations of sex from their husbands. Therefore, it cannot be said that S.375A provides reasonable protection for married women.
IV. WHY IT IS HIGH TIME FOR MALAYSIA TO CRIMINALISE MARITAL RAPE
Rape victims experience both short-term and long-term psychological effects. Common emotional and psychological effects of rape include post-traumatic stress disorder (PTSD), depression, sleep disorders, eating disorders, and dissociative identity disorder (DID).
However, marital rape has a longer-lasting and further-reaching impact on women compared to non-marital rape. They will feel that the husbands have betrayed their trust. They will be constantly terrified by the prospects of a repeated attack and feel that their homes are no longer their safe havens. As a result, women will lose faith in their marriages. If there are children involved, the children will be affected by the rocky relationship between their parents in the process of growing up.
Further, the impact of marital rape may be rather exponential since the victims have to face the perpetrators on a daily basis. They are also placed in a position where they have to forgo help in order to prevent the marriage from collapsing and thereby inviting stigma from the society. Hence, most victims are silenced by the dilemma, and their chances to recover will be crushed before they could even begin.
In Malaysia, there are no specific legislations governing marital rape. However, there has been an amendment to the Penal Code to include S.375A. Thus, a wife who is in the process of a divorce may seek protection under the Penal Code. She can also apply to the Malaysian courts for an injunction to stop her husband from making unwanted sexual advances towards her.
Despite the dim light shed upon the issue by the Malaysian government, the efforts are insufficient. The criminalisation of marital rape needs to be implemented and effected immediately.
As marriage is the cornerstone of the society in which we live, marital rape should be a worrying issue as it will contribute to the breakdown of marriage and family relationships which will lead to a barrage of societal issues in Malaysia.
Written by Hannah Tan Su Ki, a second year law student of the Faculty of Law, University of Malaya. Edited by Hanan Khaleeda and Zafirah Jaya.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 Augustin, Robin, “WAO repeats call to criminalise marital rape”, Free Malaysia Today, 1 May 2018 <http://www.freemalaysiatoday.com/category/nation/2017/03/08/wao-repeats-call-to-criminalise-marital-rape/>.
 UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women, 1992, 5 May 2018 <http://www.refworld.org/docid/52d920c54.html/>.
 Sheith Khidhir bin Abu Bakar, “Why it’s hard to make marital rape a crime”, Free Malaysia Today, 2 May 2018 <http://www.freemalaysiatoday.com/category/nation/2017/03/12/why-its-hard-to-make-marital-rape-a-crime/>.
4 US Legal, US Legal Inc, 1 May 2018 <https://definitions.uslegal.com/m/marital-rape/>.
 See footnote 4 above.
 Penal Code (Act 574).
 Sheith Khidhir bin Abu Bakar, “Why criminalising marital rape is important”, Free Malaysia Today, 2 May 2018 <http://www.freemalaysiatoday.com/category/nation/2017/03/23/wao-why-criminalising-marital-rape-is-important/>.
 Penal Code (Amendment) Act 2007 (Act A1303).
 PP v Mahathir Abu Bakar  10 CLJ 567.
 Hale, Matthew, Historia Placitorum Coronæ: The History of the Pleas of the Crown, 1, (London: Printed by E. Rider, for T. Payne, H. L. Gardner, W. Otridge, E. and R. Brooke and J. Rider [and seven others in London], 1800).
 R v Clarke [ 1949] 2 All ER 448.
 R v Miller  2 All ER 529.
 R v O'Brien  3 All ER 663.
 Black's Law Dictionary, 2nd Ed, 3 Nov 2018 <https://thelawdictionary.org/decree-nisi/>.
 R v Roberts  Crim. L.R. 188.
 R v C  1 All ER 755.
 S v HM Advocate  SLT 46.
 HM Advocate v Duffy  SLT 7.
 Gluck, Samantha, “Effects of Rape: Psychological and Physical Effects of Rape”, Healthy Place, 1 May 2018 <https://www.healthyplace.com/abuse/rape/effects-of-rape-psychological-and-physical-effects-of-rape/>.
 Nor Aini Abdullah, “Marital Rape- Domestic Violence?”, (1995) 2 Malayan Law Journal Articles lvii.