There are times when a law1 has been around for so long, no one remembers how it came about in the first place.
One example is the infamous “marital rape exception” contained in Section 375 of the Penal Code. Under this exception, a “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 recognized in the Federation as valid, is not rape”.
As a result of this exception, it is not rape even if a husband has sexual intercourse with his wife without her consent.
This is simply irrational. An unmarried woman is able to withhold consent against sexual intercourse but not a married woman. A married woman has less rights and protection than an unmarried woman.
In this debate of criminalising marital rape, it is worth reminding the history behind the marital rape exception.
The marital rape exception has its roots in a legal doctrine known as coverture.
Coverture simply means that when a woman gets married, her legal personality is covered up by her husband. Hence, coverture. The married woman effectively loses her legal personality and is invisible under the law.
Interestingly, coverture can be traced back to the French. Which is ironic given that French is known for romance.
Following the Normandy conquest in the 11th century, the British inherited many of their laws from the French including coverture.2 It remained in the British legal system for centuries until slowly eroded and ultimately eradicated by statute.
Malaysia is a commonwealth country and we are part of a common law system which we inherited from the British. Along with the common law system, we have inherited many existing laws from them. Coverture could be found in many of the laws which we inherited from them, including the marital rape exception.
Coverture is a terrible thing. Under coverture, a married woman has no right under the law. She is not able to own property and all of her property would become her husband’s. She was not able to enter into a contract. If she had been committed a wrong, she was not able to sue her perpetrators on her own.
Coverture allows violence against women. If a woman kills her husband, it was considered as petty treason. The reason being, the attack by the woman against her husband is viewed as an attack on her lord which was similar to challenge on the King. The punishment for petty treason for women is to be burnt to death at the stake.3 Another example is husbands were allowed to discipline their wife by beating them. However, the husbands were not allowed to use a rod thicker than the width of his thumb. Hence, the popular phrase “the rule of thumb”.
Coverture also perpetuates the religious notion that the wife is to obey and serve the husband. In the Books of Common Prayer solemnisation of matrimony ceremony, it is asked to the husband:
Wilt thou have this woman to thy wedded wife, to live together after God’s ordinance in the holy estate of Matrimony? Wilt thou love her, comfort her, honour, and keep her, in sickness and in health; and, forsaking all other, keep thee only unto her, so long as ye both shall live?
And to the wife:
Wilt thou have this man to thy wedded husband, to live together after God’s ordinance in the holy estate of Matrimony? Wilt thou obey him, and serve him, love, honour, and keep him, in sickness and in health; and, forsaking all other, keep thee only unto him, so long as ye both shall live?
Compared to medieval times, society has since came a long way in recognising equality of gender. The doctrine of coverture has mostly been abolished across the commonwealth. In Malaysia, by virtue of the Married Women Act 1957, a married woman can now own property, enter into contracts, and sue in her own name.4 Under the Penal Code, physical violence by husbands against their wife is now a criminal offence.5 There is no longer a death sentence for adultery.
However, one of the last relics of coverture that remains the law today in Malaysia is the marital rape exception. When a woman marries a man, she gives an irrevocable consent to have sexual intercourse with him at his pleasure. The rationale is that man and wife are one and a married man could not commit rape against his own wife. This arose out of the biblical notion that “a man shall leave his father and his mother, and shall cleave to his wife, and they shall be one flesh”6. Thus, the wife could not refuse sex.
Today, the marital rape exception is simply incompatible with Article 8(1) of the Federal Constitution which provides that all persons are equal before the law and entitled to equal protection under the law. This ancient rule of matrimonial female bondage is now swept away by the principles of equality between men and women in marriage.
Given the origins and the chequered history of marital rape, those who supports the “marital rape exception” should realise that they are only perpetuating the millennia long cycle of violence perpetrated against women. It is time to put an end to marital rape and banish one of the last barbarous relics of a wife’s servitude.7
1 Advocate and Solicitor
2 “Out of his shadow: The long struggle of wives under English Law”, The High Sheriff of Oxfordshire’s Annual Law Lecture given by Lord Wilson on 9 October 2012.
3 Statute of Treason 1352
4 Section 4 Married Women Act 1957
5 Section 319 – 326 Penal Code
6 Genesis 2:24
7 From Lord Denning in Gray v. Formosa , p. 259, 267