MARITAL RAPE – REMOVING THE HUSBAND'S LEGAL IMMUNITY

Author(s): Tan Cheng Han

Source: Malaya Law Review, Vol. 31, No. 1 (July 1989), pp. 112-128
Published by: National University of Singapore (Faculty of Law)
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 112 (1989)

MARITAL RAPE - REMOVING THE HUSBAND'S LEGAL

IMMUNITY

This article attempts to set out the law relating to marital rape, a specific and
little discussed form of violence against women. The historic basis and the
contemporary arguments in favour of the spousal immunity will also be
examined. Ultimately, however, it will be suggested that the immunity, archaic
and inconsistent as it is with the status of women today, ought to be abolished
or at least substantially modified.

I. Introduction

THIS article deals with a specific form of marital violence which appears
to have been largely ignored by authors of literature on violence against
women. As the law stands, men who rape their wives appear to be immune
from prosecution under the Singapore Penal Code (the "Code").1 This is
also largely the case in England and many other countries. In this article,
the author will explore the historic basis of the spousal exclusion as well
as its development under the common law. In particular, the applicability
to Singapore of rules similar to those recognized at common law will be
discussed in the context of section 375 of the Code. The author will also
examine the contemporary arguments in support of the husband's immun
ity but will suggest that the marital rape exemption be removed or at least
substantially modified.

II. Origins of the Husband's Immunity

The origin of the marital rape exemption rule is generally attributed to Sir
Matthew Hale. Writing extra-judicially, it was stated by him that: "the
husband cannot be guilty of a rape committed by himself upon his lawful
wife, for by their mutual matrimonial consent and contract the wife hath
given herself in this kind unto her husband, which she cannot retract."2
No authority was cited for this proposition and indeed it is doubtful if any
existed. In fact, in R v. Audley, Earl of Castelhaven's Case,3 Lord Audley
was convicted of rape upon his wife for holding her by force while one of
his servants had carnal knowledge of her against her will. As Freeman
points out,4 what is remarkable about this case is that there was no argu

1 Cap. 224, 1985 (Rev. Ed.).

2 1 Hale, Pleas of the Crown, at p. 629.
3 (1631) 3 State Tr. 401 (H.L.), 123 E.R. 1140.
4 Freeman, "Doing his Best to Sustain the Sanctity of Marriage" in Marital Violence,
(Johnson ed. 1985), p. 130.

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31 Mal. L.R. Marital Rape 113

ment to the effect that if a husband him

be convicted, a fortiori it could not be
etrate her. Surely some such argument
true common law position was that a h
rape of his wife. Hale was certainly aw
"tho in marriage she hath given up her b
be by him prostituted to another." It is s
inadequate. Hale's statement does not e
ition of Lord Audley should be convict
of some other offence while the actual p
rape. Indeed this happened in the case of
to Audley, although in Cogan, the actual
ground that he mistakenly believed the w

III. The Husband's Immunity at Common Law

Despite the dearth of authority, it was not until 1888 that Hale's doctrine
was judicially considered in the English case of R v. Clarence J Still later
came the first recorded prosecution of a husband for the rape of his wife
in the 1949 decision of R v. Clarke.8

In Clarence, the accused was charged with unlawfully and maliciously

inflicting grievous bodily harm upon his wife and with an assault upon her
occasioning actual bodily harm. The accused had consensual sexual inter
course with his wife when he was suffering from gonorrhoea. He knew of
his condition but she did not and she would not have consented had she
known. Clarence was convicted but his conviction was overturned on
appeal. The majority of the judges were of the view that there was no
unlawful act occasioning grievous bodily harm and that consent negatived
what would otherwise have been an assault. Accordingly, all the state
ments made concerning the spousal exclusion must be regarded as obiter.
The six judges in Clarence's case who did pronounce on the marital rape
exemption rule were divided in their views. Wills J. who delivered the first
judgement said: "If intercourse under the circumstances now in question
constitute^] an assault on the part of the man, it must constitute rape,
unless, indeed, as between married persons rape is impossible, a propos
ition to which I certainly am not prepared to assent, and for which there
seems to me to be no sufficient authority."9

Field J. who was equally opposed to Sir Matthew Hale's proposition

had this to say:

The authority of Hale C.J. on such a matter is undoubtedly as high

as any can be, but no authority is cited by him for this proposition,
and I should hesitate before I adopted it. There may, I think, be many
cases in which a wife may lawfully refuse intercourse, and in which,

See above, note 2.

[1975] 2 All E.R. 1059.
(1888) 22 Q.B.D. 23.
[1949] 2 All E.R. 448.
See above, note 7, at p. 33.

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 1J4 Malaya Law Review (1989)

it tne nusDana imposes it oy violence, ne mignt oe neta guilty 01 a

crime. Suppose a wife for reasons of health refused to consent to
intercourse, and the husband induced a third person to assist him
while he forcibly perpetrated the act, would any one say that the
matrimonial consent would render this no crime? And there is the
great authority of Lord Stowell'°for saying that the husband has no
right to the person of his wife if her health is endangered

The judgements of Smith and Stephen JJ. were more ambivalent. The
former took the view that at marriage, the wife consents to the husband
exercising the marital right, and until such consent is revoked, a husband
exercising such a right cannot be said to have assaulted his wife.12 It
should immediately be noted that Smith J. does not state, nor can he be
taken to imply, that rape as between married persons is impossible. In fact,
the interesting thing about his judgement is the implication that a wife
might revoke her consent to the husband's exercise of the marital right
although he left open the circumstances by which this might be done.
Stephen J. on his part was content merely to make the observation that
while he had said in the first edition of his Digest of the Criminal Law that
a husband might in certain circumstances be indicted for rape on his wife,
that statement was withdrawn in the latest edition of the Dieest.13

Hawkins J. and Pollock B. were clearly on the side of Sir Matthew

Hale. Hawkins J. held that the sexual communion between husband and
wife "is by virtue of the irrevocable privilege conferred once for all on the
husband at the time of the marriage, and not at all by virtue of a consent
given upon each act of communion, as is the case between unmarried
persons."14 Pollock B. took the view that: "[t]he husband's connection
with his wife is not only lawful but it is in accordance with the ordinary
condition of married life. It is done in pursuance of the marital contract
and of the status which was created by marriage, and the wife as to the
connection itself is in a different position from any other woman, for she
has no right or power to refuse her consent."15

It is instructive to note that both judges were of the view that, at

marriage, the wife's consent to sexual relations was irrevocable. One thing,
accordingly, is clear from Clarence — the diversity of views among the
judges who pronounced on the marital rape exemption rule was a clear
reflection of the absence of judicial precedent for Hale's proposition.
While this does not prevent the rule from ultimately being accepted as
representing the common law, it does show that the legal basis for it is not
as substantial as is generally assumed to be.

In Clarke, Byrne J. accepted Hale's proposition of the law as generally

correct. No authority was cited but it is clear the judge relied on the dicta
of Hawkins J. in Clarence. In Clarke, the wife had obtained a separation
order containing the usual clause providing that she was no longer bound

Popkin v. Popkin (1794) 1 Hagg. Eccl., note to Durant v. Durant, at p. 765.

See above, note 7, at p. 58.
Ibid., at p. 37.
Ibid., at p. 46.
Ibid., at p. 53.
Ibid., at pp. 63-64.

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 31 Mal. L.R. Marital Rape 115

to cohabit with the accused. On an indictm

of his wife his counsel moved to quash t
disclosed no offence known to the law.
exclusion as a general principle, Byrne J
lie in that case as the separation order had
consent to marital intercourse.16

The only direct authority on the marital rape exemption rule is R v.

Miller.11 The wife had left the husband in 1952 but did not apply for a
separation order or an order for judicial separation. Neither was there any
separation agreement between the parties. In 1953, she presented a petition
for divorce on the ground of adultery. Later in the year, before the petition
was to be heard, the husband had intercourse with her against her will. He
was alleged to have used force and was accordingly charged with rape and
with assault occasioning actual bodily harm. Lynskey J., after an exami
nation of the authorities, came to the conclusion that Hale's proposition
of the law was correct. Accordingly, he held that the husband had no case
to answer on the charge of rape.

It is not until a decree nisi, or possibly, a decree absolute, has been pro
nounced that the marriage and its obligations can be said to have been
terminated ...[.] The petition might be rejected, and in that event
the marriage would still be subsisting and consent to marital inter
course, as given in the marriage contract, would still be unrevoked.
Therefore, I must apply the law as it stands, there being no evidence
which enables me to say that the wife's implied consent to marital
intercourse has been revoked by an act of the parties or by an act
of the courts. The result is that, as the law implies consent to what
took place so far as intercourse is concerned (but only so far as inter
course is concerned), the defendant cannot be guilty of the crime of
rape . . . [ . ]18

Lynskey J. indicated that his decision would have been different had
there been an agreement to separate, particularly if it contained a non
molestation clause as that, in his view, would also have revoked the wife's
consent.

Thus, despite the dearth of authority on the matter, Hale's statement

of the law appears to have prevailed and is generally accepted nowadays
to represent the common law.19 This, in the author's view, is regrettable
and indeed, according to Smith and Hogan,20 the basis for the general
rule stated by Hale is plainly fictitious — the wife may in fact have with
drawn her consent and the civil law recognizes that she may do this in
certain circumstances. She is not bound to submit to inordinate or unrea
sonable demands by her husband21 and may refuse intercourse because

16 See above, note 8, at p. 449.

17 [1954] 2 All E.R. 529.
18 Ibid., at p. 533. See, however, above, note 4, at p. 132.
19 See Smith and Hogan, Criminal Law (6th ed. 1988), p. 431; 15th Report of the Criminal
Law Revision Committee (Sexual Offences), Cmnd. 9213 (1984), paras. 2.55-2.58.
20 Ibid.
21 Bromley, Family Law (7th ed. 1987), p. 109.

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 116 Malaya Law Review (1989)

her husband has been guilty of a matrim

wish to condone, or because he is suff
Certainly most people today would un
nant and this is reflected in judicial at
common law rule. Therefore, while Cla
doctrine as a general proposition, both
R v. O'Brien24 it was held that a decre
sent to intercourse and a husband commit
he has sexual intercourse with her without her consent. Further decisions
limiting the scope of the common law rule are R v. Steele25 and R v.
Roberts.26 In Steele, the Court of Appeal stated:

A separation agreement with a non-cohabitation clause, a decree of

divorce, a decree of judicial separation, a separation order in the
justice's court containing a non-cohabitation clause and an injunction
restraining the husband from molesting the wife or having sexual
intercourse with her are all obvious cases in which the wife's consent
would be successfully revoked. On the other hand, the mere filing of
a petition for divorce would clearly not be enough, the mere issue of
proceedings leading to a magistrates' separation order or the mere
issue of proceedings as a preliminary to apply for an ex parte injunc
tion to restrain the husband would not be enough but the granting of
an injunction to restrain the husband would be enough because the
court is making an order wholly inconsistent with the wife's consent
and an order, breach of which would or might result in the husband
being punished by imprisonment.27

The Court of Appeal then went on to hold that an undertaking given

by the husband to the court not to molest the wife is in fact equivalent to
the granting of an injunction. The effect is to eliminate the wife's matri
monial consent to intercourse. Accordingly, a husband who is in breach of
such an undertaking could be found guilty of rape if the other ingredients
of the offence are established.

In Roberts, the appellant was convicted of raping his wife. The appel
lant and his wife had entered into a formal deed of separation; it did not,
however, contain a non-cohabitation clause or a non-molestation clause.
On appeal, the Court of Appeal stated that the question was whether the
parties had by agreement between themselves, or the Court, by an order
or something equivalent to an order, made clear that the wife's consent to
sexual intercourse with her husband, implicit in the marriage contract, no
longer existed. Examples were: separation agreement or order with a non

22 Foster v. Foster [1921] P. 438.

23 See the judgement of Lane L.J. in R v. Steele (1976) 65 Cr. App. Rep. 22, at pp.24-25.
The learned Lord Justice may, however, have stated the law far too widely when he said: "As
a general principle, there is no doubt that a husband cannot be guilty of the rape of his wife."
As the author has endeavoured to show, the position at common law is far from clear, Miller
being the only decision directly on point. In fact, in R v. Reid [1972] 2 All E.R. 1350, at
p. 1352, another Court of Appeal bench had left open the question whether Miller was a
decision that would be upheld today.
24 [1974] 3 All E.R. 663.
25 See above, note 23.
26 [1986] Crim L.R. 188.
27 See above, note 23, at p. 25.

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 31 Mal. L.R. Marital Rape 117

cohabitation clause; decree of divorce; de

junction restraining molestation. Accordin
clause in the deed of separation, on the fact
to revive the consent which had been termi
still cannot unilaterally revoke her consent
that consent may be effectively revoked by
husband and wife.28

Ultimately, therefore, the common law position is that a wife's consent

at marriage to sexual relations can be revoked under certain specified
circumstances. Although such a limitation to Hale's proposition is to be
welcomed, this does, unfortunately, leave the law in a somewhat anoma
lous and unsatisfactory state. Once it is recognized that a wife's consent
to intercourse is not irrevocable, instead of merely carving out exceptions
to the marital rape exemption rule, the judges ought to have addressed the
real question, which is whether the wife has, on the facts, withdrawn such
consent to marital relations. This would, of course, deprive the common
law rule of much significance. It is unfortunate, therefore, that the judges
have largely chosen to accept Hale's doctrine as a general proposition
rather than subject it to fresh examination.

At any rate, a husband would be guilty of assault if he uses force to

compel his wife to have intercourse with him. In Miller, Lynskey J. held
that a husband is not entitled to use force or violence for the purpose of
exercising his right to marital intercourse. If he does so, he may make
himself liable under the criminal law, not for the offence of rape, but for
whatever other offence the facts of the particular case may constitute.29
Again, although this is to be welcomed, it is logically insupportable. If the
wife has given an implied consent to intercourse which is treated as irrevo
cable except in certain limited circumstances, the consent should be a
defence to any charge of assault if the husband has only used reasonable
force to achieve his aims. Surely the consent must extend to acts reasonably
necessary to bring about what has been consented to. Indeed, in the sad
case of G v. G,30 Lord Dunedin had said, "it is . . . permissible to wish
that some gentle violence had been employed."31

While a husband cannot be guilty of the rape of his wife, he may be

convicted of abetting another to do so. In R v. Cogan,32 the Court of
Appeal held that a husband who abets another to have sexual intercourse
with his wife knowing that she does not consent, may be found guilty of
abetting rape, even though the other man is acquitted of rape on the
ground that he mistakenly believed that the woman was consenting.

The effect of the marital rape exemption rule may well be further
mitigated by developing Lord Stowell's view in Popkin v. Popkin33 that
'the husband has a right to the person of his wife but not if her health is
endangered." Although Popkin arises out of a divorce case where cruelty

See the commentary to the report, above, note 26, at p. 189.

See above, note 17, at pp. 533-534.
[1924] A.C. 349.
Ibid., at p. 357.
[1975] 2 AU E.R. 1059.
See above, note 10; cf. Foster v. Foster, above, note 22.

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 118 Malaya Law Review (1989)

was alleged under the old concept of the

mitted that Lord Stowell's view might
guilty of the rape of his wife if he, know
health, has intercourse with her agains
should be entitled to withdraw her implied
marriage in situations where her health
of it. As Hawkins J. put it: "I cannot c
doubt that a wife would be justified in res
nay, even to the death, if necessary, th
suffering from such contagious disorder."
no right to the person of his wife in these
would be justified in resisting her husband
by the husband to force himself upon his
constitute the offence of rape.

IV. The Sexual Offences (Amendment) Act 1976

Section I (1) of the Act of 1976 provides that for the purposes of the law
of rape in England and Wales, a man commits rape if he has unlawful
sexual intercourse with a woman who at the time of the intercourse does
not consent to it; and at the time he knows that she does not consent to
the intercourse or is reckless as to whether she consents to it. Because
"unlawful sexual intercourse" usually means outside the bond of mar
riage,36 Smith and Hogan have argued that not only has the statutory
formulation of the offence of rape in the Act of 1976 confirmed the
generally accepted view of the common law, it may also have had the effect
of reversing Clarke and Byrne by making it impossible for a husband to
rape his wife in any circumstances. Smith and Hogan, however, go on to
conclude that this "was certainly not Parliament's intention and the sec
tion should not be so interpreted."37 This, it is submitted, is the better
view. It is certainly unlikely that the English Parliament intended, without
using clear words to that effect, to abolish the limitations to a controversial
rule already long considered archaic by many. Roberts, in fact, proceeds
on the basis that the limitations to the marital rape exemption rule still
represent the law and so does the Criminal Law Revision Committee in its
report on Sexual Offences.38 Accordingly, a husband would be acting
unlawfully if he has intercourse with his wife against her will in the circum
stances mentioned above, e.g. where, as in Clarke, the wife had obtained
a separation order. In this respect the Act of 1976 has not instituted any
change in the law.

V. The Position under the Singapore Penal Code

The offence of rape is defined in section 375 of the Code which provides
that a man is said to commit rape who, except in the case hereinafter
Cf. Bromley, Family Law, above, note 21.
See above, note 7, at p. 51.
Cf. R v. Chapman [1958] 3 All E.R. 143.
See above, note 19, at p. 431; cf. Bromley, Family Law, above, note 21, at p. 111.
See above, note 19, at para. 2.57.

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 31 Mal. L.R. Marital Rape 119

excepted, has intercourse with a woman in

of five descriptions listed in the section,
will, or without her consent, or with her
been obtained by putting her in fear of
section 375 (the "exception") then states as
a man with his own wife, the wife not be
is not rape."

The generally accepted view is that the exception enshrines the marital
rape exemption rule. For example, the authors of a leading Indian text
book, commenting on the exception to section 375 of the Indian Penal
Code (which is in pari materia with section 375 of the Code), state: "A man
cannot be guilty of rape on his own wife... on account of the matrimonial
consent which she has given which she cannot retract. But he has no right
to enjoy her person without regard to the question of safety to her."39

In the Indian case of Queen-Empress v. Huree Mohun My thee,*"

Wilson J., in his summing up to the jury, took the view that:

... in the case of married females. . . the law of rape does not apply
as between husband and wife after the age of ten years. But it by no
means follows that because the law of rape does not apply as between
husband and wife .. . that the law regards a wife as a thing made over
to be the absolute property of her husband, or as a person outside the
protection of the criminal law ...[.] Thus you will see that the real
practical difference between the case of wives under ten years of age
and the case of wives over ten years of age is that, in the case of wives
under ten years of age, there is a . . . hard-and-fast rule as to what
constitutes criminality in the husband; if he has sexual intercourse he
is guilty of rape. But in cases of wives over ten years of age, you have
to consider, on the one hand, not only the question of age, but ques
tions of physical condition, and on the other, questions of motive,
questions of intention, questions of knowledge, questions of rashness,
questions of negligence, and questions of consequences ...[.] We
have simply... to say whether, having regard to the physical condition
of the particular girl with whom sexual intercourse was had, and to
the intention, the knowledge, the degree of rashness or of negligence,
with which the accused is shown to have acted on the occasion in ques
tion, he has brought himself within any of the provisions of the crimi
nal law.41

If the same reasoning is applied to the Code, a husband cannot be

guilty of rape if the wife is above the age-limit specified in the exception.
A husband would, of course, be guilty of any other offence which the facts
of the case may constitute. A husband would also be guilty of abetment
if he assists another in the rape of his wife as abetment under the Code
is a separate offence altogether. The offence of abetment would be made
out even if the person abetted is incapable of committing an offence, or
does not have any guilty intention or knowledge.42
39 Ratanlal and Dhirajlal, Law of Crimes (23rd ed. 1987), Vol. 2, at p. 1406; cf. Gour, Penal
Law of India (10th ed. 1982), Vol. 4, p. 3239.
« (1890) 18 Cal. 49.
41 Ibid., at pp. 62-63.
42 S. 108 of the Code.

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 120 Malaya Law Review (1989)

The question remains, however, whether

tations to the exception similar to tho
exemption rule at common law. In Can
by section 143 of the Criminal Code,43 th
of rape renders it automatically legal w
The section provided as follows:45

A male person commits rape when he

female person who is not his wife, (a) w
hér consent if the consent (i) is extorted
harm, (ii) is obtained by personating h
by false and fraudulent representations
the act. (Emphasis supplied).

Although section 143 is slightly more

section 375 of the Code, it is submitted t
exception also admits of no limitations sim
mon law. This is certainly the only reason
tion as a husband is expressly excluded fr
if he has intercourse with his wife under
in the section.

Indeed, over and above the question of construction, it might also be

said that some historical support for this interpretation exists. The Code
came into existence in 1871 and, like many of the other criminal codes
which exist in countries that were formerly part of the English empire, is
modelled on the Indian Penal Code. Although the Code is not a codifica
tion of English Law, the exception almost certainly had its roots in Elale
who saw the spousal immunity as an absolute one. Accordingly, the Code,
and more specifically the exception, came into existence at a time when no
qualification to Hale's statement of the law was recognized, and the ex
ception is probably a reflection of such an understanding of the law,
however flawed such an understanding might have been.46 In Singapore,
therefore, under no circumstances would a husband be guilty of the rape
of his wife so long as she is not under thirteen years of age. The only
possible exception might be where the court has granted a decree nisi of
divorce although even this is doubtful.

In Sivakolunthu Kumarasamy v. Shanmugam Nagaiah & A nor., the

appellant (the wife) filed a petition for divorce and was granted a decree
nisi in 1982. The appellant then sought a division of a piece of property
which she and her husband owned as joint tenants, as a result of which
the High Court made a settlement order for the sale of the said property

43 R.S.C. 1970, Chapter C-34.

44 See McFadyen, "Inter-Spousal Rape: The Need For Law Reform" in Family Violence,
(Eekelaar and Katz ed. 1978), p. 193. The author states that under s. 143, Canadian
jurisprudence did not admit the same qualifications to the marital rape exemption rule as
those recognized by the English courts and, accordingly, it would seem that a rape charge
between a husband and a wife would not lie until such time as a decree absolute of divorce
was obtained.
45 The section was repealed in 1980-81-82, c. 125, s. 6.
46 See the author's comments above, especially at note 23.
« [1986] 2 M.L.J. 181, [1988] 1 M.L.J. 341, C.A.

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 31 Mal. L.R. Marital Rape 121

and the division of the proceeds of the sa

Before the order could be implemented, how
on 15 October 1983. On 29 November 1984
brought an action claiming, inter alia, the
ment order. This was resisted by the appella
the order. Chua J. in the High Court gave
tors and the Court of Appeal, presided o
appellant's appeal. While the author agrees w
courts, it must, with respect, be said that m
ful. What is interesting about the judgem
article is that the Court of Appeal, after cit
St. John-Mildmay,4i went on to state that:
recognition by the court that the marriage is
is pronounced, there is, as Lord Wright sa
home, no consortium vitae and no right on e

If the grant ot a decree nisi puts an end t

either be that the decree has the effect of t
to marital intercourse or, that the Court ha
the wife's implied consent no longer exists.
guilty of rape if he has intercourse with his
certainly the position in England. Sectio
proceeds on the basis that the matrimonia
irrevocable by virtue only of the marriage re
marriage is dissolved, the wife's consent t
least for the purposes of section 375. Thus,
effect of the Court of Appeal's statement in
that it can have no effect whatsoever on

That a husband can under no circumstan

the rape of his wife is, in the author's view
table. Urgent reform is called for and it is to

VI. The Case for Criminalizing Marital Rape50

To be fair to Hale, while he might indeed have been a pious misogynist,51

it must be noted that he was writing at a time when marriage was regarded
as a lifelong institution. Until the passing of the Matrimonial Causes Act
of 1857, no court in England had the power to grant a decree of divorce
terminating a valid marriage. The common law also had the curious effect
of altering the wife's status at marriage. She became no longer a feme sole
but a feme covert and her legal personality was, for many purposes,
regarded as being fused with that of her husband. This doctrine of the
unity of husband and wife is clearly expressed by Blackstone, who said:

48 [1938] A.C. 1, at pp. 45-46.

« [1988] 1 M.L.J. 341, at p. 345.
50 A good summary of the arguments for and against criminalizing marital rape is con
tained in the 15th Report of the Criminal Law Revision Committee, above, note 19, at paras.
2.64-2.78.
51 See Geis, "Lord Hale, Witches, And Rape" (1978) 5 British Journal of Law and Society,
at p. 26.

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122 Malay a Law Review (1989)

By marriage, the husband and wife are on

very being or legal existence of the wom
marriage, or at least is incorporated and c
husband; under whose wing, protection
everything; and is therefore called in our
femina viro co-operta; is said to be covert
tion and influence of her husband, her
tion during marriage is called her covertu

The doctrine undoubtedly had its roots

based on what most likely was an impro
standing of Scripture,54 it had the effect o
dinate status in the marriage relationship
a survey of medieval commentators and
rather as if the strictly biblical notion of
and thus one person had by this time [i.e. 1
not overtaken by, the equally fictitious c
culine will."55

Linked to the doctrine of the unity of

concept of the wife as a mere chattel, as pa
with the resulting implication that force
little more than a man making use of his ow
might have been said for these ideas in Hale
place today where marriage is generally
According to Lord Denning M.R.:

Nowadays, both in law and in fact, husban

not one ...[.] The severance in all res
would say that the doctrine of unity an
discarded altogether, except in so far as it
sion or by Act of Parliament.56

In Singapore, the Women's Charter57 h

status to that of a feme sole. The Charter, a
the rule which made the wife's domicile dep
restored the wife's capacity to acquire, ho
restored her right to sue or be sued in h
32 Bl. Comm. Book 1, p. 442.
53 Genesis 2:24, 3:16; Matthew 19:5; Mark 10:7; 1 C
see Oliver J.'s judgement in Midland Bank Trust C
193, especially pp. 206-208.
34 The biblical references are probably best unders
The true implication of the unity of husband and w
for subordinating the wife, in reality expresses the
more, if the husband and wife are truly to be one f
love his wife as he loves his own flesh, i.e. himself; cf
Fitzmeyer, Murphy, ed. 1968).
55 See above, note 53, at p. 208.
56 Midland Bank TYust Co Ltd v. Green (No. 3) [19
see Sir George Baker's judgement (at p. 751) where h
wife in the eyes of the law and in fact are equal."
37 Cap. 353, 1985 (Rev. Ed.).

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 31 Mal. L.R. Marital Rape 123

however, is section 45, an important statemen

as follows:

(1) Upon the solemnization of marriage, the husband and the wife
shall be mutually bound to co-operate with each other in safe
guarding the interests of the union and in caring and providing for
the children.
(2) The husband and the wife shall have the right separately to engage
in any trade or profession or in social activities.
(3) The wife shall have the right to use her own surname and name
separately.
(4) The husband and the wife shall have equal rights in the running
of the matrimonial household.

It is clear, therefore, that the doctrine of the unity of husband and wife
and its consequences have been so eroded today that the marital rape
immunity exists as an anomaly in the law. The rule can no longer be justi
fied purely on historical grounds and other arguments must be considered.

A commonly raised argument stresses the inappropriateness of the

criminal law intervening in the marital relationship. According to the
American Law Institute:

The problem with abandoning the immunity in many such situations

is that the law of rape, if applied to spouses, would thrust the prospect
of criminal sanctions into the ongoing process of adjustment in the
marital relationship ...[.] [I]t is a risky business for the law to inter
vene by threatening criminal sanctions. Retaining the spousal exclu
sion avoids this unwarranted intrusion of the penal law into the life
of the family.58

Proponents of this view stress that the intrusion of the criminal law
in such circumstances would destroy the unity of the family, hamper any
attempts at reconciliation, promote marital disharmony, and ultimately
lead to divorce. Certainly it must be conceded that it is unpleasant for the
law to be involved in family disputes. On their part also, the police are
understandably reluctant to become involved. The short answer to this
argument, however, is that the criminal law is already involved in the life
of the family. Except for the offence of rape, a husband can be charged
with a whole host of other offences if he abuses his wife, e.g. assault,
causing hurt or grievous hurt, etc. This same argument against extending
the offence of rape to the husband can equally be applied to those offences
as well. Yet no one argues that the husband should be spared the conse
quences of the criminal law in these circumstances to save the marriage.
In this respect the criminal law ought to operate consistently. If we allow
the prosecution of a husband for the assault of his wife even though this
will have an adverse effect on the marriage, there is no reason why he
should not equally be prosecuted for rape. Furthermore, as Finkelhor and
Yllo point out,59 the criminal law is not in the business of saving marri
ages. The criminal law, for better or worse, takes to task people who

58 Model Penal Code and Commentaries, 1980, Part II, ss. 210.0 to 213.6, at p. 345.
59 License To Rape: Sexual Abuse of IVives (1985), p. 179.

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 124 Malaya Law Review (1989)

commit crimes, and the family chips fall

difficult to resist the inference drawn by bot
people have about prosecuting a wife rapist b
as a crime not worth breaking up a marria

Another argument against the abolition of

rule is that the wife already has sufficien
family and criminal law. Again, according to

Here the law already authorizes a penal

causes serious bodily injury, the punishmen
is whether the still more drastic sanctio
The gravity of the crime of forcible rape d
violent character but also from its achi
degrading kind of unwanted intimacy. Wh
ongoing relation of sexual intimacy, tha
force used to compel submission, may w
atively different.60

With respect, the fact that the wife has al

question. So too has every other female vi
native remedies in criminal law adequately pr
the wife has consented, but where her conse
on the part of her husband putting her in f
exists as a separate offence shows society's
ively different one from assault or causi
reflected in the extent of punishment that a
liable for. Such an offender may be punish
with imprisonment for a term which may ex
liable to a fine or caning.61 This compares w
which may extend to three months, or with a
hundred dollars, or with both, for the off
prisonment for a term which may extend to
may extend to one thousand dollars, or w
voluntarily causing hurt.63

Rape, in other words, is simply not the sam

causing hurt and this argument simply ignor
Such laws exist to protect a woman's sexu
freedom of choice. They also recognize tha
from consequences different from those a
violence. Apart from facing the prospect o
of rape may also suffer severe and long-term
scars. In addition, rape can also have adver
ability to enjoy sexual relations. Certainly
husband-wife relationship may be though
nature of harm involved in the sexual assault
be an adequate defence of the immunity. Mar

60 See above, note 58, at pp. 345-346.

61 S. 376 of the Code.
62 S. 352 of the Code.
63 S. 323 of the Code.

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 31 Mal. L.R. Marital Rape 125

ones who enjoy an ongoing relationship of

nity has no application outside marriage. T
who has a long-standing, permanent re
convicted of rape while a husband who sex
first night of marriage cannot. Certainly
immunity were removed, a convicted husb
as severe a sentence as other rapists. Be th
the other hand, be stating quite unequivoc
by a husband, is a serious offence, and thu
the criminal law. This would at least have some effect on deterrence.

A third argument in defence of the immunity is based on the difficul

ties of proving marital rape. There are unlikely to be any witnesses and the
parties are likely to have had consensual intercourse many times before. By
the same token, however, it must then be equally difficult to prove lack of
consent in all cases of rape where the victim and accused have had a long
standing sexual relationship. Yet, it has never been suggested that prose
cutions for rape should not take place in these circumstances. At any rate,
it is curious that questions of evidence should wholly dictate the substan
tive law. Difficulties of proof do not appear to be an adequate basis on
which to decide what behaviour should be condemned by society. Still
these observations are largely made in vacuo. In America, several states
have abolished the husband's immunity and statistics indicate that the
difficulty-of-proof argument is exaggerated. In Oregon, three out of the
four prosecutions brought before July 1982 resulted in conviction.64 In
California, out of 28 cases that went on for prosecution between January
1980 to December 1981, 25 resulted in conviction, mostly on the charge of
marital rane.65

A fourth justification for retaining the marital rape immunity is that

without it, husbands would be at the mercy of vindictive wives who might
raise false allegations of rape against them. The floodgates would be
opened and the courts would simply be inundated with a flood of such
cases. Again these fears appear exaggerated. Sweden abolished the marital
rape exemption many years ago. Geis, after an examination of the Swedish
system, concluded:

The Swedish experience provides a particularly persuasive response to

the dire forebodings about the consequences of marital rape laws. It
indicates that in the dozen years the Swedish law has been in force
there have been no serious problems with it . . . Swedish statistical
information indicates that the law has been used only very infre
quently for complaints of rape by wives against their husbands . . .
I would argue that the Swedish data support several different themes.
To begin with, it seems most unlikely that removal of the marital rape
exemption will place intolerable burdens on the police, the courts, or
marriage itself.66

64 See above, note 59, at p. 176.

65 Ibid., at pp. 226-228.
66 (1978) 6 Adelaide Law Review, at p. 302; cf. the 15th Report of the Criminal Law Revision
Committee, above, note 19, at para. 2.61, where the Report states that on the information
before the Committee, there have, so far, been very few prosecutions in three states in
Australia which have amended their laws on marital rape.

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 126 Malaya Law Review (1989)

The above argument is also untenable

false allegations were a valid reason for n
the existence of the entire criminal law would be in doubt. Indeed it must
also be said that if a wife really wished to blackmail her husband, there
already exist easier ways to do so. As mentioned earlier, there is a whole
host of offences a wife can allege against her husband. There is no evid
ence that wives are doing this on a large scale, much less vindictively. And
if a wife should intend to do so (i.e. to blackmail her husband), she would
be wise to allege some other offence. The inherent difficulties involved in
establishing rape, the stigma, and the trauma of being cross-examined on
intimate details, would surely make false allegations a most daunting
exercise.

A final argument against the abolition of the marital rape immunity

is that a wife might change her mind after accusing her husband of rape
and become reconciled with him. This would waste valuable time and
effort on the part of the police. Certainly if this were the case, sympathy
could be felt for the police who find after all their work that the wife
refuses to testify against her husband. However, this argument could apply
equally to other offences as well, but has never been held to do so. Fur
thermore, the criminal law does not exist solely to secure the maximum
number of convictions. The criminal law, proceeding as it does from the
society of which it is an integral part, is also an expression of that society's
values. At the same time, the criminal law in turn exercises a powerful and
positive function in educating people as to the standards of behaviour
which society expects of them, and the moral blameworthiness of certain
acts. Accordingly, the spousal exclusion should be abolished because in the
words of the minority of the Criminal Law Revision Committee: "[i]f the
extension of the law of rape to all married couples brought about a re
assessment of sexual rights and duties in marriage, the law would, in the
opinion of these Members, have performed an educative function."67

In Singapore, the Women's Charter has done much to bring about a

re-assessment of the reciprocal rights and duties inherent in the married
state. Removing the marital rape immunity would only be a logical step on
a path already long trodden. As McFadyen puts it,68 "criminalizing inter
spousal sexual assault will symbolically affirm the equality of women in
marriage." The point ultimately is a very simple one. The law either con
dones marital rape or it does not. There can be no middle ground.

VII. Law Reform

It is submitted that the case for criminalizing marital rape is unanswerable.

Many jurisdictions have done so and it is hoped that Singapore will even
tually follow suit. The position in Singapore, as has been pointed out, is
particularly unsatisfactory, precluding any possibility whatsoever of a
husband being charged for the rape of his wife. In this regard, Malaysia
is somewhat more progressive. By section 7 of the Penal Code (Amend

67 See above, note 19, at para. 2.72.

68 See above, note 44, at p. 197.

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 31 Mal. L.R. Marital Rape 127

ment) Act 1989 (Act Kill), section 375

(F.M.S. Cap. 45) has been replaced by a n
provides as follows: "Sexual intercourse by
marriage which is valid under any written
or is recognized in the Federation as valid,
of this article, what is significant is that
to state in Explanation 1 that: "A woman —
husband under a decree of judicial separ
absolute; or (b) who has obtained an inju
from having sexual intercourse with her, s
for the purposes of this section." This leav
similar to, although narrower than, the
as it is clear at least that Explanation 1
there is an agreement between husband
cates that such an agreement may effectiv
marital relations.

It is the author's submission that, going beyond the amendments in

Malaysia and the common law position, the Code should at least be
amended to extend the offence of rape to all cases where husband and wife
are no longer cohabiting, whether or not there is a court order or an
agreement between the parties. This was one proposition which united all
the members of the Criminal Law Revision Committee in its 15th Report.
The Committee, however, pointed out the difficulties of achieving a satis
factory definition but nevertheless recommended that an attempt be made
to find a workable formula.69

Some examples of law reform in the area of marital rape can also be
seen in Australia. The South Australian Criminal Law Consolidation Act
Amendment Act 1976 provides that a person will only be guilty of rape on
his spouse if the offence was accompanied by (a) assault occasioning
actual bodily harm, or threat of such an assault, upon the spouse, (b) an
act of gross indecency, or threat of such an act, against the spouse, (c) an
act calculated seriously and substantially to humiliate the spouse, or threat
of such an act, or (d) threat of the commission of a criminal act against
any person70. In Western Australia, the husband's immunity has been lifted
in cases where "he is separated from her and they are not residing in the
same residence."71 In Victoria, the Crimes (Sexual Offences) Act 1980,
amending section 62 (2) of the principal legislation, enacted that: "Where
a married person is living separately and apart from his spouse the exist
ence of the marriage shall not constitute, or raise any presumption of,
consent by one to an act of sexual penetration with the other ... by the
other."

Another alternative is to follow the approach adopted in Sweden and

distinguish between rape by a stranger and rape by a husband. Rape by a
stranger would carry a prison term of no less than two and no more than
ten years. Husbands, falling outside this category were vulnerable only to
prosecution for sexual assault which would carry a sentence of not more
than four years' imprisonment. Accordingly, the maximum punishment
69 See above, note 19, at para. 2.85.
70 S. 12, Criminal Law Consolidation Act Amendment Act 1976.
71 S. 2, Criminal Code Amendment Act (No. 3) 1976.

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 128 Malaya Law Review (1989)

for a husband who has raped his wife will be l

a stranger may be liable for.72 It is certainl
form at least is called for in Singapore73 and e
other jurisdictions. In view of the preceding
submitted that as a matter of principle, the en
rule would be the most satisfactory solution

Tan Cheng Han *

72 See Geis, above, note 66, at pp. 297-298.

73 Useful reference might also be made to the reports and proceedings of the Workshop
cum-Exhibition on Violence Against Women (1985; Kuala Lumpur) and the Forum on "Stop
Violence Against Women" (1987; Singapore).
74 It appears that the law in Scotland has moved in this direction. According to a report in
The Sunday Times (19 March, 1989), "British judges have ruled that a husband can stand
trial for the alleged rape of his wife, even though they are living together. In a historic
judgment, Scotland's Appeal Court upheld an earlier High Court judgment by Lord May
field that although in the past it was not a crime for a man to rape his wife, times had changed
and so had the status of women." Unfortunately, the author has thus far been unable to
obtain a copy of the judgment.
* LL.B. (Singapore); Advocate and Solicitor ot the Supreme Court ot Singapore; Senior
Hitor, Faculty of Law, National University of Singapore. The author is grateful to Mr. Tan
Hock Kim of the Malaysian Bar and his colleague Ms Leong Wai Kum for their helpful and
encouraging comments, to his colleague Ms Helena Chan for kindly editing the article, and
to Ms Carolyn Wee and Ms Foo Yan Chuin of the NUS Law Library for their assistance in
the research. Needless to say, responsibility for any shortcomings in the article is entirely the
author's.

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