Full consent, always

Marital rape

Last week, the government confirmed that it has no plans to criminalise non-violent marital rape.

In simple terms, this means that in Malaysia, a man can force his wife into sexual intercourse against her will and fear no punishment for the same. Apparently, therefore, a marriage certificate legitimises a husband’s “right” to sex as and when he pleases, even if his wife is unwell, busy or just not in the mood.

While this article is not intended to be legal scholarship on the law of marital rape, I’m sure all decent and rational citizens can agree that nothing less than full consent is acceptable in sexual relations, irrespective of whether the man has put a ring on a woman’s finger. The current state of affairs, however, effectively authorises a severe imbalance of power within marriage, and fails to recognise the respect due to women as equal citizens before the law.

This is disappointing, coming from a new administration which swept to power on promises of extensive reform and better justice in Malaysia Baru, and which has, for the first time in history, appointed a woman to the position of Deputy Prime Minister, who also happens to be the Women, Community and Family Development Minister.

Perhaps even more concerning, however, were the reasons given by the government for its refusal to afford married women protection from non-consensual sex.

One was that it is difficult to secure convictions for marital rape.  Another was that in 2006, a parliamentary select committee had rejected proposals to criminalise marital rape on religious grounds, and that in any event, attempts to widen the scope of the Penal Code to give women the legal right to press charges against an intimate partner where consent was lacking in a domestic context would now be undermined by a Senate dominated by Barisan Nasional lawmakers.

It’s easy to see why this reasoning is fatally flawed.

Firstly, it is only when the law properly empowers victims to follow through with a report against their attackers that justice can truly be done, and be seen to be done. There is no logic in arguing that convictions for marital rape are hard to secure while no specific provisions for such a crime currently exist.  Surely we need to give victims the confidence of knowing that their complaints will not go unheard in respect of an issue that is often (wrongly) tainted by stigma and fear.

Secondly, I’m sure I’m not wrong in saying that most, if not all, who voted for Pakatan Harapan on May 9 did so trusting in their guarantees of bringing comprehensive change from the BN policies of the past 61 years.

Relying on recommendations supposedly made by a parliamentary select committee more than a decade ago to justify a failure to adequately protect women in a domestic environment in 2018 amounts to nothing less than a dereliction of those promises.

Moreover, we have not seen any real hesitation in the government proposing numerous other Bills in the past six months – such as the Sales Tax Bill and the Goods and Services Tax (Repeal) Bill – which cruised through the Dewan Negara sans drama.

The fact of the matter is that criminalising non-violent marital rape is not a priority on this administration’s agenda, despite its repeated and explicit commitment to governing for the people, and in their best interests.

I very much doubt that the people feel their interests are best protected when the Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin defends the decision to allow non-consensual sex in the marital context by commenting that “a criminal case involving a husband also sometimes means losing a breadwinner”.

By that logic, husbands who are rapists, murderers or thieves should never be prosecuted as long as they put food on the table.

Sadly, it seems that we still have a long way to go – simply to ensure that logic and common decency prevail in policymaking, and that each and every citizen feels sufficiently and equally protected by and before the law.

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