Marital rape and conjugal rights…

I think that its very interesting how a number of topics which I studied in law school have been raised and come to life as of late with the amendments to Singapore’s Penal Code. The subject of this entry - Marital rape - was recognised in the UK in 1991 with the case of R v R.

Prior to that case, a husband was immune from prosecution for having sex with his wife without her consent or by force. Section 375 of the Singapore Penal Code follows this old English position. It may be important to note that, in the past, it was also legal for a husband to beat his wife, so long as he didn’t use any instrument that was larger than the diameter of his thumb – hence the phrase, the ‘rule of thumb’. This was predicated on the idea that women/wives/daughters were chattel or property of the man. This, of course, is completely unacceptable in today’s society.

In the amendment bill, it was proposed that a “calibrated approach” was necessary and would limit this defence to situations where divorce or separation proceedings have been commenced or completed, or where the wife has applied for or obtained an injunction or protection order against the husband. Critics were quick to point out that under these changes, the critical issue for rape in a marriage is not consent, but whether the wife has taken certain legal steps. To them, this situation is incoherent, inconsistent with the law on rape, and therefore, cannot be correct. They argue that sex without consent is rape, whether it takes place within or outside a marriage.

The MHA has taken the position that a total abolition of marital immunity would be “too radical” and would change “the whole complexion of marriage in our society”. They cite the “need to strike a balance between the needs of women who require protection and the general concerns about conjugal rights and the expression of intimacy in a marriage.” They also talk about the concept of “conjugal rights”, suggesting that a husband has some sort of right to sex from his wife.

I guess as a Christian, I can understand the concept of ‘conjugal rights’. The bible mentions it in 1 Corinthians 7:3-5: ‘The husband should give to his wife her conjugal rights, and likewise the wife to her husband. For the wife does not have authority over her own body, but the husband does. Likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another, except perhaps by agreement for a limited time, that you may devote yourselves to prayer; but then come together again, so that Satan may not tempt you because of your lack of self-control.’

I think that it was a good thing that the bible chose to angle it slightly differently than we would have expected, directing the husband to give his wife her ‘conjugal rights’ first. As for the equality argument raised by some opponents to the amendments to s375, I think that verse is rather consistent with that idea too – they are both to grant each other such rights over themselves. I think that the biblical concept of conjugal rights is predicated on 2 issues: (1) that when a man and woman come together in marriage, they become ‘one flesh’ (Genesis 2:24), and therefore, as one unit, they are both ‘equally’ entitled to rights to sex. As the MHA correctly opines, it is “the expression of intimacy in a marriage”; and (2) it seems clear that this ‘commandment’ or principle is an effort to prevent the ‘sin of lust’ or ‘sexual immorality’. One possibility is for the party who is deprived to ‘burn with lust’ or perhaps he/she may seek fulfillment from an alternative source – both propositions are, in the bible’s view, undesirable.

Of course, none of these would apply in the event that there is a break down in the marriage eg where one party has initiated divorce or separation proceedings against the other, or where the wife has applied for or obtained an injunction or protection order against the husband. This is because there is either irreparable damage to the unit, it is in the process of being dissolved or it has already ceased to be.

Now, although I can appreciate the rationale for the amendments, it does not necessarily mean that I cannot also appreciate the other side of the argument. As I mentioned in a previous entry, I do not agree that our secular laws should abide by biblical standards. It may not even be a good thing that it does.

Don’t get me wrong, I do agree with the biblical rationale for conjugal rights. I definitely also agree with the idea that when a couple joins in the union of marriage, that it is precisely that -0 a union (for life! Well… hopefully!). However, one cannot deny the risks involved here as well. There are men and women who abuse their spouses (although abolishing this provision would only protect wives and not husbands – perhaps something else to be considered, especially in the interest of ‘equality’!). Many of these people find themselves unable, for whatever reason, to leave their spouses. They need, but will not receive, such protection. What should we do about them? (While the biblical commandment carries with it a caveat that the husbands and wives are not to abuse or commit violence against their spouses, the law necessarily doesn’t!)

I guess the answer is already in the text above. Because even if the marital immunity is removed, it is useless unless and until the woman brings it into the realm of law. If she doesn’t make a police report, it would still be of no effect – the husband will not be prosecuted, it would not be stopped. As it is, she will still have to get a court order, a divorce or go through a separation, and if she is not prepared to do any of those, she would also not receive such protection. In this sense, the amendment can be viewed as a step forward.