Marital Rape in Malaysia

This has been a hot topic of discussion for the last couple of weeks, ever since this AWAM campaign video on rape became a sensation online. If you have not seen it yet, I would recommend that you watch it now.

The video depicts several scenarios of rape – underaged, drunk, marital, conventional. However, the only issue that became a contention in the Malaysian public sphere is the issue of marital rape. Many have weighed in on the issue on both sides with some defending marital rape as it is apparently condoned under Islam.

I was honestly taken aback when I read about the camel scenario, an opinion given by the Perak Mufti.

Even the Prophet says even when they’re riding on the back of the camel, when the husband asks her, she must give.

I was trying to wrap my mind around the fact that they were able to do it on camel back. I wonder what position that took and whether that camel was moving or stationary.

But anyway, I’m not trying to rehash the discussion on marital rape from the Islamic standpoint. Seeing that this is a quasi-legal blog, I intend to point out that under S.375 of the Penal Code, which covers rape, all the above scenarios are addressed. However, marital rape is addressed as an exception under S.375:

Exception—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 Malaysia as valid, is not rape.

Now, say what you want about it but marital rape is not recognised under Malaysian Law. Therefore, husbands are legally allowed to rape their wives as much as they want and there is no legal recourse for the wife. However, if the husband does cause any other form of bodily harm towards her in the process, she may still find redress under the Law, just not as rape.

I think that it’s a good idea to start discussing this issue because it is high time that we reformed our Law to reflect the realities of the day and that wives are no longer chattel owned by their husbands, as in the past. However, what I think a lot of the activists types are missing is that this is not a gender issue.

If the activists choose to champion it as a gender issue, they will lose. As one of my law lecturers once mentioned, nobody cares about womens’ issues in this country. I wouldn’t support their cause if they were to treat it as a gender issue simply because it would be hypocritical to do so.

Rape is not a gender issue. Rape is a human rights violation.

Since it is a human rights issue, then let’s not stop with marital rape. If you look at the wording of S.375 of the Penal Code, you will find that it also does not cover male rape either. Apparently, in Malaysia, only men are capable of committing rape and no woman is capable of doing so.

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:

So, it would seem that our laws on rape are severely behind the times and we need to amend it to reflect the realities of the day. Rape is a crime like any other crime. It is capable of being committed by members of any gender on members of any gender. It is also capable of being committed within the confines of a home as easily as it is outside.

Therefore, it is high time that we amend our laws to recognise all kinds of rape, not just the narrow definition of  marital rape in the context of a husband raping his wife.

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Shawn Tan

Chip Doctor, Chartered/Professional Engineer, Entrepreneur, Law Graduate.

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