06 August 2009

Rape In Marriage -- Malaysia

Rape in marriage is perhaps one of the most under-reported crimes in almost all jurisdictions. Whether this is because the jurisdiction does not yet have laws in place to prosecute the crime or whether the stigma associated with rape prevents reporting or people just do not accept that a person can be raped by their spouse are all possibilities for the lack of reporting.

However, Malaysia has put into place a law that makes it a crime to commit rape in marriage. This law is in fact an amendment to the penal code, and has been in force since September 2007. The law is far from perfect, at least in my mind, as the maximum sentence for rape in marriage is five years. The maximum sentence for "ordinary" rape is thirty years.

In my mind, rape is rape, and the maximum sentence available, if found guilty must be the same. However, in a recent Australian case, a jury was seemingly convinced that rape could, in very limited and specific circumstances, be accidental.

Nevertheless, the prosecutors of eastern Pahang State in Malaysia have used the amended Penal Code to successful prosecute a Malaysian man who was alleged to have raped his wife and forced her to have anal sex as well. He was sentenced to the maximum of five years for the marital rape and a further 10 years and three lashes for the anal sex charge. This was the first successful prosecution for marital rape under the amended Penal Code.

This is an interesting development for a number of reasons. First, it seems that there are greater protections afforded, primarily, to women who are raped by their husbands. I am not sure that one decision is enough to inspire across the board confidence in the law, but it is a start and it is a step in the right direction.

Second, the Manohara case may benefit from this judgment. It would seem clear from the allegations being put forward by Mano that the prince was a bit of a sex addict, perhaps even a bit of a fiend, and that he was very demanding on the need for sex. Was this rape in marriage? If so, is Manohara, or her team, thinking about pursuing the prince in this manner?

Hopefully, though the decision will inspire more Malaysians to stand up for their marital rights, particularly women, and that rape at any time is not something that must be endured in silence and shame.

2 comments:

GJ said...

Rob

This could get interesting, do you know if there is a status of limitation for this. The reason I ask is what if the follow scenario played out.
Happily married couple with a healthy sex life continued on for several years, then finally the marriage broke down, and the rape card was played for an incident that happened back in the good ol' days, as an act of revenge.
This is not to dissimilar to the "child abuser" allegation that is sometime raised in nasty custody battles. I think the waters could turn very murky!!!
But rape is rape I agree, unless it was an accident. Please.

GJ

Rob Baiton said...

GJ...

I am guessing from Monday you will be too busy in your new job to read all the posts that I make so I might need to slow down some :D

Yes, it certainly would have the potential to get murky and just plain ugly.

I had thought about including some thoughts on the issue, but the post was getting longish anyways. So, I figured someone, probably you, would make the point.

In some ways, I figure one of the reasons so many jurisdictions are so reluctant to get laws like this on the statute books is that they are difficult to prove and that there are still plenty of people who would believe that it is not possible to prove a rape in marriage.

I am guessing that there is likely to be a statute of limitations type restriction on the allegations. Although, I would have to read the law to be sure.

Mate, the accident thing is now real. Although, I would agree, if the roles were reversed I wonder how much yardage you would get out of, "but Your Honour, it was just an accident!"