PETALING JAYA: Marital rape is not recognised as rape in Malaysia, according to family law practitioner Honey Tan.
“There are child marriages happening in Malaysia. So if there are rapes happening within that marriage, it isn’t considered as rape,” said Tan.
“What the government needs to do is take away the exception in Section 375 of the Penal code,” she said.
The exception in Section 375 of the Penal code states: “Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognised in the Federation as valid, is not rape”.
“But what is considered rape is having sex with somebody without their consent or by force. So they don’t even recognise that in a marriage husbands do force their wife to have sex,” said Tan.
Tan said many still blamed the victim for getting raped.
“There are still people blaming the way you are dressed for example, but they’re not thinking about children and women wearing tudung who get raped,” she said.
“The reality is that rape is an act of violence and the weapon is a penis. It’s all about power and control and it is an assault that is sexual in nature,” said Tan.
Women’s groups such as Women’s Aid Organisation (WAO) have been lobbying for the recognition of marital rape under Malaysian laws.
“Being married to someone does not entitle you to have sex with that person whenever you want. Non-consensual sex is rape no matter what. A wife is not a husband's property,” said Yu Ren Chung, an Advocacy Officer at WAO.
“Marital rape is a form of domestic violence, and often occurs along with other forms of abuse,” he says.
“Domestic violence laws need to be enforced more effectively. Enforcement officers and the general public need to be aware that domestic violence includes rape.”
Yu said Malaysian rape laws had a very narrow definition of what rape is.
Marital rape was not recognized as rape and was only punishable based on the potential or actual physical harm inflicted on the victim, he said.
“We work with many women who shared their stories about their abusive husbands forcing them to have sex, sometimes even using objects. Many don't use the term "rape" as they don't know they can say no to their husbands.”
Yu also cites how in 2006 the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) committee requested that Malaysia "enact legislation criminalizing marital rape, defining such rape on the basis of lack of consent of the wife”.
Tan, the family law practitioner, said the recent change in criminal procedure code was good.
“If you look at Section 183A in the Criminal Procedure Code, there’s now a thing called a victim impact statement,” she said. “That will actually have an impact on the sentencing. So that’s a really excellent development.”
(Before the court imposes a term of sentence onto the accused, the victim has a choice on whether or not she wants to make a statement on how the crime had an impact on you and your family.)