Aug 15, 2009

My Personal Memories of Rape

Today's Straits Times has an article about three young people on an important mission:
ST Aug 15, 2009
'Rape within marriage is still assault'
These twenty-somethings are determined to change what they see as a gross injustice - the 'marital exemption' in our Penal Code, which does not consider non-consensual sex within a marriage to be rape
By Cassandra Chew

THEY make an unlikely trio out to change the world - a bank officer, a charity fundraiser and a freelance designer - but they have the words of Margaret Mead to inspire them.

The famed American anthropologist once said: 'Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.'

That is as good a description as any of Ms Wong Pei Chi, Ms Jolene Tan and Mr Mark Wong, the force behind the anti-marital rape petition No To Rape.

They are determined to change what they see as a gross injustice - the 'marital exemption' in our Penal Code, Sections 375(4) and 376A(5), which does not consider non-consensual sex within a marriage to be rape.

Married women who wish to be protected from sexual abuse must apply for a court injunction or a personal protection order from the Family Court.

...... Although they did not personally know anyone who had been victimised, the stories alone were enough to move them to action.

They began their campaign last August by writing to their Members of Parliament and the Ministry of Community Development, Youth and Sports, but were dissatisfied with the responses, which basically indicated that the issue had been discussed during the Penal Code review in 2007.

They decided to take matters into their own hands and freelance designer Mr Wong, 28, who met Ms Tan through a blog, decided to join them.

...... they launched their own online petition at notorape.com last month.

No To Rape has collected more than 1,900 signatures so far, and they hope to garner at least 10,000 before submitting their petition to Prime Minister Lee Hsien Loong in October.

If the Government decides to change the law, it will have to review the Penal Code. If the Penal Code is to be changed, the Government has to table a Bill in Parliament and put it to the vote.

Their campaign coincides with the 10th anniversary of a key marital rape case, Public Prosecutor v N.

Even though the victim was slapped, tied up and raped, the charge of rape could not be held against her husband.
10 years already? How time flies.

The article brings back some personal memories for me. Because I was the DPP who argued the case of Public Prosecutor vs N in the High Court, before Yong Pung How (then the Chief Justice of Singapore).

PP v N was a very violent case. The offender was a Navy sergeant. At that time, divorce proceedings had already begun between him and his wife, and they were living apart.

Basically one day, he kidnapped her, forced her into his car and drove her to a relative's flat (no one else was there). He beat her; punched her; tied her to the bed using bath towels; stripped her naked; and raped her.

At that time, there was no way to prosecute him for rape. The Penal Code gave husbands complete immunity. The legal provisions were primitive, dating back to the 1800s when Singapore was a British Crown Colony. Amazingly, for more than 150 years, the government had failed to make a single change to the rape immunity provisions.

So the prosecution had to charge the Navy sergeant with a variety of other less-serious charges, including (if I recall correctly) "criminal intimidation" and "voluntarily causing hurt".

I did not handle the case at the district court level. Another DPP handled it at that stage. There the district judge imposed a ridiculously lenient sentence. If I recall correctly, it was just a fine of a few thousand dollars - there was no imprisonment at all (or maybe it was just a few days).

Bear in mind that the typical sentence for rapists is about 10 years' imprisonment and 8 strokes of the cane.

The prosecution appealed for a higher sentence. I took the case to the High Court. There I presented to the Chief Justice various arguments for a heavier sentence.

I still remember the first question that Yong Pung How had asked in court. He asked, "Why wasn't this man charged for rape?"

Yong didn't know that the prosecution couldn't do that. He looked slightly stunned, when I pointed him to the relevant immunity provision in the Penal Code. At first sight, Yong's ignorance of that point was very surprising (you would expect the Chief Justice to know better). However, on further reflection, Yong's ignorance was not that surprising.

Why? Well, as Chief Justice, Yong had heard hundreds, perhaps thousands of criminal cases. So he knew a lot about criminal law. But Yong had never heard a single case where a husband had been charged for raping his wife. And that, of course, was because the law did not even allow the prosecution to charge any husband for such an offence.

Anyway, the Chief Justice increased the sentence for N. He brought the overall sentence close to the maximum possible, for the charges of "criminal intimidation" and "voluntarily causing hurt". If I recall correctly, it added up to a few years' imprisonment. This was a big improvement over the original sentence, but it was still a lot lower than what it would have been, for a bona fide rape charge. Even the Chief Justice is constrained by the words in the Penal Code, you see.

Later, Yong gave a written judgment for this case, thereby immortalising my name in Singapore's legal history (lawyers and law students can look me up in the Singapore Law Reports, or in the Lawnet database). In general, appellate judges give written judgments only for cases that they consider to be legally significant. In his judgment, Yong referred to the marital rape exception in the Penal Code, made some criticism of it and said that unfortunately, nothing could be done except by Parliament.

It was his way of telling Parliament, "This rule is stupid - please fix it."

Parliament was very slow. Another seven years passed, before Parliament got around to amending this provision (together with other parts of the Penal Code). That was in 2007. Parliament amended the provision to say that a man could be charged for raping his wife, if she had already:

(1) obtained a decree of judicial separation;
(2) obtained a personal protection order; or
(3) obtained an injunction against her husband restraining him from having sex with her.

Personally I think that this is still not quite sufficient. Obviously, Pei Chi, Jolene and Mark (the three people mentioned in the ST article) agree with me.

The tough part is to convince Parliament. As you might have noticed, sometimes Parliament can be very stupid, and also very slow to act.

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Click to go to the "No To Rape" website and sign the petition.
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61 comments:

Agagooga said...

Yong had never heard a single case where a husband had been charged for raping his wife. And that, of course, was because the law did not even allow the prosecution to charge any husband for such an offence.

Isn't it more likely that it was because cases of husbands raping wives almost never come to light?

Given that wife-rapists are prosecuted for other charges (as for this case) it's not because the Prosecution is unwilling to bring these cases to trial, so it is a combination of rarity and under-reporting.

In any case, the other aspects of this particular case are more horrific than the rape, so the difference in the punishments of "criminal intimidation" and "voluntarily causing hurt" vs rape is puzzling.

Mr Wang Says So said...

It isn't merely filtered at the prosecution level.

Consider this - man rapes wife; wife goes to police, and tells her story.

Police says: "Oh, he's your husband? Sorry, it's not an offence then."

The woman is sent away. The case will never even be known to the prosecution.

---------

In PP v N, the district judge clearly went very wrong. There's a story behind that - but I can't really talk about that part.

Agagooga said...

Ah well, incompetent police officers.

Anonymous said...

I wonder what Solo Bear will say about the case?

He being a social argument expert and all....

K

Anonymous said...

Another angle to this article:

http://www.nowhere.per.sg/?p=1354

Anonymous said...

Not that I'm supporting the husbands raping wives, what if the Penal Code is amended and provisions are made to charge husbands for rape and it is being abused?

An example would be a woman unhappy with the husband for certain reasons and decides to claim 'rape'. How would that protect the man then?

Would men not be liable to the threats of raper-reporting by these women?

Mr Wang Says So said...

Cases don't go to court, just because someone makes a police report.

The police still needs to investigate. Thereafter the prosecution still needs to form its own view whether a crime was committed or not.

So one level of check is where the prosecution chooses not to proceed, simply because the prosecution itself is not convinced that an offence had been committed (eg the prosecution thinks that there's a good chance that the woman had made a false report).

Note also that the burden of proof in a criminal case is on the prosecution, and the standard of proof is beyond a reasonable doubt.

In other words, the prosecution needs to convince the judge, to a very high degree, that the husband did commit the offence (and wasn't, say, framed by a malicious wife)

In a PP v N scenario, for example, we can be very sure of rape because there were lots of signs of a very violent struggle; the woman suffered quite severe injuries; and the man himself didn't deny that he had forced himself on the woman etc.

In less-drastic scenarios, there is less evidence and the prosecution may drop the case because there wouldn't be enough evidence to get a conviction anyway.

Importantly, note also that it is possible to limit the marital immunity, without completely doing away with it (although this is not what the "No to Rape" trio are pushing for).

For example, the law currently says that the husband can be charged for rape, if she had already obtained a decree of judicial separation or obtained a personal protection order.

This could be amended to say that the husband can be charged for rape, if the woman had already
applied for the decree/order, and the man knew that the application had been made.

This is important because there can be a period of time between the application, and the actual granting of the decree/order.

Another possibility is to add another scenario where the husband can be charged for rape - eg where he has used force and caused some degree of injury to the woman to compel her to have sex with him.

Agagooga said...

Yet, it is hardly a secret that sex crimes are investigated differently from other sorts of crimes. "Better that ten guilty persons escape than that one innocent suffer" does not seem to hold in those cases.

PP v N was undoubtedly a case of rape, but in cases with less evidence men can still be screwed by false accusations.

Mr Wang: outside of marital rape, normal rape can itself be quite hard to prove. It might be interesting to talk about some of the issues involved when prosecuting rape (or other sex crimes).

AT said...

Well done, DPP Wang. That chap deserved jail. The district judge was an idiot.

RICHARD SEAH said...

Petition signed!

Thanks for highlighting this case. Yes Parliament can sometimes be slow and stupid.

But only sometimes :-?

Terence Goh said...

Will the malicious wife who framed his husband for rape be punished?

If not, I think the thought of being accused of rape will bring most men to their knees, enough to agree to his malicious wife's demands e.g. agree not to contest for kids' custody in their upcoming divorce.

Ape said...

Very delicate you know... especially for the prosecutor to decide to press chargers. Think of this -

"My husband rape me... see,bruises, wounds etc " Wife.

"But she says she like SM ?!?! and we've been doing it like this even before we got married?!?!" Husband

How?

No To Rape said...

Mr Wang, thank you for blogging about us. It is really interesting to hear that you were the prosecutor in this case. We would like to contact you to discuss this further in private if that is acceptable to you.

We are slightly confused about one aspect of your post/comments here. We understood from the judgment in PP v N and also from Assoc. Prof. Chan Wing Cheong of NUS Law Faculty that at the time of the incident, although the woman had expressed a desire for a divorce, legal proceedings had not been initiated. Consequently, the legal result would be the same today - 2007 Penal Code review notwithstanding. Do you agree with this assessment?

Best regards

Jolene
No To Rape team

Mr Wang Says So said...

Mmmm, 10 years on, my memory of the case could be wrong. The written judgment would be the most reliable reference now.

However, it's important to note that for divorce in Singapore, the most common route is for the couple to live separately for three or four years, then file for divorce. This is because the living apart is a pre-requisite for filing a writ of divorce under section 95(3)(d) and (e) of the Women's Charter.

Here are the relevant provisions:

========

95. —(1) Either party to a marriage may file a writ for divorce on the ground that the marriage has irretrievably broken down.

(2) The court hearing such proceedings shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, grant a judgment for its dissolution.

(3) The court hearing any proceedings for divorce shall not hold the marriage to have broken down irretrievably unless the plaintiff satisfies the court of one or more of the following facts:

....... (d) that the parties to the marriage have lived apart for a continuous period of at least 3 years immediately preceding the filing of the writ and the defendant consents to a judgment being granted;

(e) that the parties to the marriage have lived apart for a continuous period of at least 4 years immediately preceding the filing of the writ.

=========

I definitely recall that in PP v N, the woman and the man were no longer living together and that the woman's intention was to get divorced.

Most likey she was in the midst of fulfilling her 3-year or 4-year separation period, and during this time the man abducted and raped her.

If you see the presentment of the writ of divorce as the "initiation" of the divorce proceedings, then yes, I guess you would say that the woman had not yet initiated the divorce proceedings.

Mr Wang Says So said...

Ape:

Important point to grasp here is that taking away the immunity provision simply puts the husband in the same position as a boyfriend, as far as non-consensual sexual intercourse is concern.

After we take away the rape immunity, the husband would just be the same position as the boyfriend.

No one is complaining that boyfriends face a terrible risk of girlfriends framing them for rape.

Why should there be a reason to complain that husbands face a terrible risk of wives framing them for rape ...?

Mr Wang Says So said...

Jolene:

Yes, under the law today, N would still not have been guilty of rape.

Anonymous said...

I will support the NO To Rape on condition that the malicious wife who is proven beyond doubts to frame his husband for rape will also be severely punished as a Male Rapist.

Agagooga said...

No one is complaining that boyfriends face a terrible risk of girlfriends framing them for rape.

Actually, people do complain about this.

I have a friend who is so terrified by all the false rape accusations that he has said that he will obtain written consent from a woman in future before having sex with her.

Anonymous said...

Signed the petition.

Rape is a rape, marital or not. It's robbing people's liberty and right to do what they want and what they do not. I definitely despise these sorta things.

And to Anon 9:30 AM, framing HER (u wrote his) husband for rape cannot be considered as RAPE. You know exactly that it is not.

Anonymous said...

If you look at the figures, rape as a crime is already severely underreported (estimates can be as high as >90% unreported rate). Once rape is reported, the rapist has also to be convicted. The conviction rates for rape as a crime is known to be low because of difficulty in obtaining evidence.

Fears that a wife will falsely accuse a husband of rape is overblown and greatly exaggerated.

If the possibility of false accusation is a valid argument against the prosecuting marital rape, rape should not be a crime altogether because a woman can always falsely accuse a man of rape.

Sylvester Lim said...

Anon 9.30am, let's take it a step at a time. We don't want to confuse parliament as they do things super cautiously.

solo bear said...

Rape 375.
(1) Any man who penetrates the vagina of a woman with his penis —
(a) without her consent; or
(b) with or without her consent, when she is under 14 years of age, shall be guilty of an offence.

(2) Subject to subsection (3), a man who is guilty of an offence under this section shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning

(3) Whoever —
(a) in order to commit or to facilitate the commission of an offence under subsection (1) ––
(i) voluntarily causes hurt to the woman or to any other person; or
(ii) puts her in fear of death or hurt to herself or any other person; or
(b) commits an offence under subsection (1) with a woman under 14 years of age without her consent, shall be punished with imprisonment for a term of not less than 8 years and not more than 20 years and shall also be punished with caning with not less than 12 strokes.

(4) No man shall be guilty of an offence under subsection (1) against his wife, who is not under 13 years of age, except where at the time of the offence —
(a) his wife was living apart from him
––
(i) under an interim judgment of divorce not made final or a decree nisi for divorce not made absolute;
(ii) under an interim judgment of nullity not made final or a decree nisi for nullity not made absolute;
(iii) under a judgment or decree of judicial separation; or
(iv) under a written separation agreement
;
==============

Mr Wang, if another case like PP v N occurred today, and if Sect 375(4)(iv) is in force, could the man be charged for rape?

If yes, this is a new legal avenue for distressed wives, no?

If no, in your legal opinion, why?

Thanks in advance.

Anonymous said...

I don't think it makes sense for 'malicious wife" and the Male Rapist to receive the same severity of punishment. Rape is a far more sinister and emotionally/physically damaging violation- a crime that is markedly different from fabricating rape. It is undoubtedly a serious matter and she should be punished, but they absolutely do not fall into the same category of crime and therefore consequence.

Furthermore, I don't find that marital rape immunity should stand just because there is a possibility of a husband's liability be abused by his wife. Sure, there will be people who cry rape, but it does not therefore dictate that in case of abuse, marital rape should not be considered a crime. From some of the arguments above, you might as well be saying that rape should not be considered a crime at all because any malicious woman can cry foul.

Terence Goh said...

Mr Wang,
"After we take away the rape immunity, the husband would just be the same position as the boyfriend.

No one is complaining that boyfriends face a terrible risk of girlfriends framing them for rape. "

There is nothing important enough at stake in a casual relationship for the girlfriend to use rape as a tool.

For wives who want a divorce, it is different. Threatening to report the husband for rape can be used as a bargaining chip for custody of the kids, alimony, split of assets, etc. Even if the husband is not guilty, the thought of being involved in a police case, potential lawsuit, legal fees, possibility of being found guilty, social stigma, maybe losing his job is enough to make him agree to demands. I am not talking about clear cut cases like the one you were involved in but about those that are hard to disprove. The wife could tell the police that her husband raped her as punishment after telling him of her extramarital affair. Any way to disprove this? The police can't say the wife is lying either.

The malicious wife can also use entrapment - bluff her husband she wants to play rough.

I agree that the law needs to be changed to protect the innocent but this should include the husbands too.

Mr Wang Says So said...

A woman who makes a false accusation of rape can be prosecuted for a criminal offence under section 182 of the Penal Code.

There is no special protection for "wives".

Why should a man have any special protection, just because his victim is his wife?

Mr Wang Says So said...

"Any way to disprove this? The police can't say the wife is lying either."


That is the wrong question to ask. The question should be - "Any way to prove this?"

The accused is presumed innocent, you see. It is not his job to prove his innocence. It is the prosecution's job to prove his guilt.

Mr Wang Says So said...

Mr Wang, if another case like PP v N occurred today, and if Sect 375(4)(iv) is in force, could the man be charged for rape?


Well it depends on whether there is a written separation agreement or not.

There may not be.

Simple example. Suppose a man beats his wife frequently. He does not want a divorce, he just likes beating her. Therefore he will not agree to sign any separation agreement.

She runs away from him to live away from him. She manages to hide away for a year, or two years, or three.

One day, he discovers where she had been living. He goes there when no one else is around, and attacks her, and rapes her.

Errr, no, he cannot be charged for rape, whether under the old law or the new law.

Mr Wang Says So said...

Incidentally, in many different countries, it was common for the man to have immunity from a marital rape charge .... about 100 years ago.

At that time, you see, women were regarded as the property of their husbands. Women couldn't vote; were not entitled to own any assets of their own; and upon marriage, became a "chattel" (or a piece of property) belonging to her husband.

So that's why men could not be guilty of raping their wives.

Since then, marital immunity has been removed in most countries. Even Malaysia and India, which shared the same old Penal Code as Singapore (as they were all British crown colonies at that time) amended their immunity provisions long, long ago.

Singapore has just been backward. It's as simple as that.

solo bear said...

Mr Wang

Let me rephrase. Under the amended law, if husband and wife have written agreement that wife withdraws consent for sex, and she lives separated from him, and he then proceeds to force sex on her - can he now be charged for rape?

I am looking from the LEGAL aspect.

If he cannot be charged for rape, in your legal opinion, why?

Mr Wang Says So said...

Sorry, your question seems based on a number of mistaken assumptions .... Therefore it's hard to know what you're asking.

A written separation agreement is, firstly, not a written revocation of consent to sex.

Consent, or withdrawals of consent, for sex need not be written.

WLPT said...

As you might have noticed, sometimes Parliament can be very stupid, and also very slow to act.


As usual Mr Wang, you are so fast to pass judgment on our govt. If parliament is slow to act, is it becos the Prosecutor's Office and the Police were slow in pressing for this law to be passed in the first place? Have you and your former colleagues done anything to push for such a law to be passed? If you answer yes, then I fully agree your statement.

solo bear said...

Mr Wang

Let me re-rephrase. Suppose both husband and wife agree to separate on 16 Aug 2009 and have that written on the same day, as per Section 375(4)(iv), and wife proceeds to move out of house to live apart from husband.

Husband then proceeds to force sex on her on 17 Aug 09.

Can he now be charged for rape?

Anonymous said...

One can argue that Laws against Cheating can be abused when a person lends another person money willingly, and then frames the person by reporting it as Cheating.

It's up to the police to investigate and the prosecutor to prove. When there are no witnesses or writen agreements, it can be as difficult as proving rape between bf/gf or husband/wife.

But nobody is complaining about Laws against Cheating, or calling for it to be revoked.

So why the double standards when it comes to marital rape?

Anonymous said...

You said that N kidnapped his wife. Then why couldn't the procecutor charge him with kidnap?

Terence Goh said...

In reality, how many women who falsely accuse someone of rape is charged?

Terence Goh said...

Mr Wang,

Let's say a woman has a new lover and wants a divorce. For some reason, she wants to get her husband into trouble. She reports to the police that her husband raped her after learning of the bad news. There are no witnesses because it happened in their bedroom.

Are you saying that the police will not even investigate this case?

Agagooga said...

So why the double standards when it comes to marital rape?

Because rape is not treated the same as other crimes.

Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=611908

"Despite great theoretical potential for cultural variability, forced penile-vaginal intercourse is an inflammatory and serious offense in every known society. This is true, despite the fact that there are many acts of physical violence (say, cutting off a leg) that are, on average, more physically harmful than rape. All over the planet, rape makes women fearful and angry, and it makes nonraping males who are fathers, husbands, brothers, sons, and friends of the raped female livid to the point of the most extreme forms of violence and retribution-seeking. There is no research of which I am aware to suggest that it has not always been thus. (Even the Coker Court conceded that “[s]hort of homicide, [rape] is the ‘ultimate violation of self.”) Note too that the widest variety of legal systems, including our own, formally proscribe rape with harsh penalties. Although the complexities of the crime, the difficulties of proving lack of consent, and the vicissitudes of local attitudes have often made rape underreported, underprosecuted, and underpunished, convicted rapists still tend to be subject to unusually harsh penalties, including even death. The severity of these penalties is clear when compared to the physical harm typically inflicted, and to the less severe penalties that typically follow from even more physically severe nonsexual harms.

Footnote: "Tedeschi and Felson, supra note 116, at 334 (1994) "A cross-cultural survey of 100 societies from the Human Relations Area Files showed that rape is one of the three most heavily punished crimes""

Anonymous said...

This is a classic AWARE type feminist trying to seize for women to power against men, especially when this law has absolutely nothing to lose as far as the women are concerned.

The problem here is not so much that the man cannot be charged; he can be charged for a variety of crimes, but the problem really is the sentence is not sufficiently tough. (For a blogger advocating against the excessive vindictiveness of the death penalty, the irony is rich.)

How often do women get charged for falsely accusing rape?

If this stupid law is passed, if marital rape immunity is removed even for men who have no reason to believe that their wife should reject sex, this will be a WMD for women seeking divorce in the fastest and most vicious way. No man will want to be accused of rape. They will settle out of court and agree to anything the woman demands.

And there are men stupid enough to support this.

Anonymous said...

"How often do women get charged for falsely accusing rape?"

as often as other people get charged for falsely accusing others.

wait till your OWN DAUGHTER gets raped by her husband, then perhaps you as a man and a FATHER will wake up from your backwardness.

Anonymous said...

I know of a case where the wife intentionally fakes overseas travel to catch her husband cheating. The reason? She wanted a no fuss fast divorce and equal share of the property. That confrontation nearly turned into a stabbing fest, especially since the "henchman" she brought along was her lover.

In fact, from what the husband discovered, the wife could have been cheating from day 1 and married him for money.

If a million dollar is at stake, I fail to see how gold diggers will hold themselves back from abusing the law.

You cannot change the balance of the law without corresponding changes to divorce laws (WOMEN'S charter) that aims only to protect the woman.

Why must the man lower his standard of living in a divorce to preserve the woman's standard of living?

Furthermore, as far as I know, Singaporean courts give women the benefit of doubt as far as sex crimes are concerned. All she needs is a consistent bulletproof testimony. No need for witness or evidence. The burden is on the accused to poke holes in her testimony.

月下影子 said...

To those who think passing the law will open the floodgates to women abusing it for whatever reason, think again.

We might as well abolish the laws that can bring charges against a man for molestation, since a woman can also falsely accuse a man of molesting her.

"The problem here is not so much that the man cannot be charged; he can be charged for a variety of crimes, ... "

And why should he be charged for other crimes, when the rape IS the deciding devastating crime?

"... if marital rape immunity is removed even for men who have no reason to believe that their wife should reject sex,... "

Does that mean a wife has no reason whatsoever to reject her husband's DEMAND for sex?

"How often do women get charged for falsely accusing rape?"

So, do men even get charged for raping their wives? Unless you are saying there is really no such thing as a man raping his wife.

Anonymous said...

wait till your OWN SON gets accused of marital rape by his wife, then perhaps you as a man and a FATHER will wake up from your backwardness.

Next please?

Mr Wang Says So said...

I understand why some people are saying the things they say here. But really it stems from a misunderstanding of how the law works.

They are confused about the evidentiary aspects of the law.

One person can falsely accuse another person of rape. He or she can also falsely accuse the person of theft; robbery; assault; cheating; criminal intimidation and a few hundred other crimes.

Can he or she prove it? That is the question.

People who believe that they can just anyhow anyhow accuse somebody of an offence and thereby cause the person to be convicted for 10 years ....

.... have just been watching too many soap operas.

Mr Wang Says So said...

The history of the law is quite amusing sometimes.

The Penal Code was created by some white man called Stephen MacCaulay. He single-handedly created the law for Singapore, Malaysia and India (all of which were controlled by the British at that time).

Stephen was of the opinion that men who raped women should be severely punished (that's why rape actually carries one of the heaviest sentences in the Penal Code).

He made a complete exception for husbands and wives. Why?

Because he was a Christian. At that time in history, Christians were very much into the idea that if a man married a woman, then in the eyes of God, they became one person.

Well, you can't possibly rape yourself, can you? So if a man and woman are husband and wife, it can't be possible for husbands to be guilty of rape.

That was the rationale then. It might even have made sense then. After all, 180+ years ago, the world was really quite a different place.

Mr Wang Says So said...

"The problem here is not so much that the man cannot be charged; he can be charged for a variety of crimes, but the problem really is the sentence is not sufficiently tough."

-----


You're wrong.

I'll tell you a little more about PP v N.

Every rape offence, by definition, covers all the elements of another offence "outrage of modesty".

In other words, every rape is an OM, but not every OM is a rape.

(Similarly, every robbery is a theft, but not every theft is a robbery. Robbery is approximately equal to theft + violence).

Now, OM can attract quite a severe punishment as well. However, N was not charged for OM.

Why?

Because as a matter of legal principle, if the Penal Code grants husbands the right to forcibly penetrate their wives, it would not be right for the prosecution to prosecute husbands for OM, and thereby effectively find a backdoor around the marital immunity exception. The prosecution has got to respect the spirit of the law, as it stands.

Now, the above argument is debatable (I was quite unconvinced by it myself, 10 years ago) but it was the view taken by very senior DPPs back then.

N was therefore prosecuted for offences which can stand quite separately without any sexual element - voluntarily causing hurt etc.

Mr Wang Says So said...

"You said that N kidnapped his wife. Then why couldn't the procecutor charge him with kidnap?"

-----

I used the word "kidnap" more loosely than the actual technical legal definition of the word.

"Kidnap" would probably be an apt word for the layman's view of what happened that day.

If you had to prove it in the technical sense, though, the evidence in that case probably was not sufficient to meet the required standard (bear in mind that as prosecution, you need to establish your case beyond a reasonable doubt).

I think that there was a reasonable doubt that the man did not "kidnap" her ... eg that when he pulled her hair and hit her head, he wasn't forcing her into the car, but just feeling extremely angry that she wouldn't enter the car voluntarily ... and that the woman then changed her mind and decided to enter the car with him.

solo bear said...

Mr Wang

I have 2 very relevant and important issues to clear with you. The first is a question which I asked for you expert legal opinion, which you left unanswered. Here it is again.

Issue 1 - Suppose both husband and wife agree to separate on 16 Aug 2009 and have that written on the same day, as per Section 375(4,a,iv), and wife proceeds to move out of house to live apart from husband. Husband then proceeds to force sex on her on 17 Aug 09. Can he now be charged for rape?


Issue 2 - You said on August 17, 2009 12:26 PM:
Because as a matter of legal principle, if the Penal Code grants husbands the right to forcibly penetrate their wives, it would not be right for the prosecution to prosecute husbands for OM (Outrage of Modesty),...
>>

Me:
Is Pandora's Box now going to be opened? So if the marital rape immunity is lifted, technically, it would be possible to charge husband for OM too. Technically, wife can claim husband has outrage her modesty if the notorape has statute amended.

Am I correct in my intepretation, or have I misintepreted them?

Anonymous said...

1) If the Chief Justice was not aware of marital rape immunity, what deterrent effect do we expect removing this immunity? Reply this so I can use this against you when you argue the lack of deterrence against the death penalty.

2) If assault charges lack bite, the solution ought to increase it to at least match the outrage of modesty. Why is that the law cant care less when a man is beaten up silly ("Non-seizable offence"?) but unleashes it's full wrath when a man pinches the buttock of a woman?

Oh wait, is it because a woman can be charged for assault against a man, but only a man can be charged for rape against a woman?

Even for outrage of modesty, it is always used against men. A woman can point her middle finger at a man and walk away scot free. The man do the same, he becomes a sex offender.

Gimmicks like "No to rape" is just another way feminists wants to use political correctness to attack male rights. I pity the men who willingly become their tool.

Anonymous said...

I think the problem is this.

1) If there is no law preventing marital rape, wives would be at risk from abusive husbands.

2) If there is a law preventing marital rape, husbands would be at the mercy the of wives who are willing to lie.

I will focus on 2) as it seems to be the contentiou area.

As far as 2) is concerned, the issue is that the accusation of a marital rapist is enough to ruin a person, regardless of legal verdict. After all, a man accused of marital rape (even if disproved) would always carry a stigma.

Even if the woman was found to be lying and is actually jailed, there will always be ppl who think that maybe the man got a better lawyer, the woman was scared, the law unjust....... So the man will still suffer.

And since the man is innocent, he will worry about losing so many things even if he were to be proven innocent; hence he will give in to the woman to prevent all the problems from happening.

Philip

SM said...

Philip,

I understand that in incest crimes, the perpetrator is not named in public even if he is eventually found to be guilty. This is to protect the name of the victim. If the marital rape immunity gets lifted, I think it would stand to reason that both the wife and the husband would not be named.

As for the police investigation itself bringing stigma, i.e. police calling up your company main line to ask to speak to you, that is a question of police sensitivity. Supposedly, the police are already well-trained to handle the present domestic violence investigations which are equally sensitive and as potentially stigmatising. I cannot really comment on whether they do do that sensitively because I do not know. That might be best asked around to find out.

Anonymous said...

"wait till your OWN SON gets accused of marital rape by his wife, then perhaps you as a man and a FATHER will wake up from your backwardness.

Next please?"

LOLOLOL... i have two SONS actually, and no daughters. if my sons are accused of marital rape, i would ask them to own up if they have done it. otherwise, i'll tell them not to worry, because God knows they have not done that, and it's for the prosecutor to prove beyond doubt that they have done it.

next please.

Anonymous said...

Wang, agree with protecting women in marriage.

But what about protecting men in marriage?

To be very base, men get married to have exclusive sexual rights to a woman, as would the women to the men (actually man).

It is very difficult for a man to prove "denial of service" against his wife. Especially with ego and stigma thrown in. This distortion in empowering the women against the needs of men in a marriage, may probably be why the divorce rates are going up.

Now we stack it up with a marital rape law.

For men to give up his multiple mating instincts, then deny him rights to sex or restrict it to as and when the women feels like it, I think many men will choose to stay single. Or marry later.

Do you not think PM should be really worried about marriage and kids now?

Anonymous said...

Dear Mr Wang,

perhaps the police might be sensitive but what if the wife started spreading rumours?
Names might not be mentioned but if busybodies or friends of wife started hinting of marital rape and so on..........

As for not being named, as far as i know, newspapers will not name but there is the fear that something will leak or so on, and hey who can say it will not appear? With the advent of the net, anything can happen. Just my thoughts here. Like the wife can write a blog on the court proceedings.....

To those who say what if ur daughter gets involved in marital rape and what if your son gets involved in a false accusation, this is very ocntentious.

I am sure the daughter will get some kind of protection under the law, and the husband will not get away 100% free. As for the falsely accused son, well it depends on whether the son is willing to live on a clear conscience before God but "dirty before the world". Many people cannot handle that cos there is the desire to appear of clear conscience before the rest of society. Unless of course, there is the plan to migrate...

An example is that I might have been falsely accused of stealing but subsequently found it was a misunderstanding. Clear conscience but when all my friends look at me as a thief, I can go into depression. I can make new friends and try to start again nbut can still go ionto depression (though not suicide).

Juz my tots.

Philip

Anonymous said...

wah. mr wang, if you started collecting tuition fees from the beginning. your mortgage on your new house could have already been cleared. LOL!!

Ape said...

Hi Mr wang,

Thanks for responding to my err... question. Personally, ape do find the immunity provision archaic.

Putting everything in perspective, people seems to have an impression that just because some lady cry rape, some man is almost certainly going to jail. Thus, there was this fear that the mrs may be setting an entrapment for the mr to fall into.

However, ape guess the reality is not so. The prosecutor has to be thoroughly convinced that he has a case before he press charges which can also mean that real victims, due to lack of evidence, will not be able to their aggressors put to jail. With the immunity provision in place... it becomes impossible.

On the lighter side of things, ape imagines himself pulling out a consent form for mrs ape to sign should she want to erm... be a bit exciting and creative :p

Anonymous said...

Wow, I can't believe the anon @ August 17, 2009 12:41 AM who said this:

"If this stupid law is passed, if marital rape immunity is removed even for men who have no reason to believe that their wife should reject sex, this will be a WMD for women seeking divorce in the fastest and most vicious way. No man will want to be accused of rape. They will settle out of court and agree to anything the woman demands.

And there are men stupid enough to support this."


Maybe you consider that the men who support this petition are also stupid enough to get lousy vicious wives, are stupid enough to force said wives to have sex without consent, and are also stupid enough to leave evidence of rape upon which charges can be pressed.

Hmm... maybe, just maybe, the men who support this petition are smarter than that? Maybe they won't marry such lousy vicious wives, won't force said wives to have sex without consent, and - even if they do - won't leave evidence of rape upon which charges can be pressed?

Maybe all these men's marriages deserve to be preserved so they can pass their smart genes to the next generation, while the stupid men who don't support the petition will get divorced as a result and hopefully not spread their stupid seed around.

Satya said...

Dear Mr Wang

I'm an international student studying here in Singapore. I don't know if Singapore law works in quite the same way as it does in other ex-British colonies (like Malaysia where I'm from).

But if you brought this case all the way to the Supreme Court 10 years ago, then couldn't the Court strike down the relevant provisions in the Penal Code as unconstitutional?

Surely there's an argument to be made that the provision violates certain basic aspects of human dignity, which without having read Singapore's constitution, I'm sure it guarantees?

Anonymous said...

Later, Yong gave a written judgment for this case, thereby immortalising my name in Singapore's legal history (lawyers and law students can look me up in the Singapore Law Reports, or in the Lawnet database).

My god. So you are the Navy sergeant? You don't seem like the kind of person.

bluB said...

To Satya: Are you kidding? This is SINGAPORE. 'Human dignity' and 'Constitution' are never mentioned in the same breath.

If you're a practicing lawyer-to-be in Singapore, I sincerely hope to see you argue Art 12 successfully in our courts, against all odds.

Anonymous: LOL!!

Cheers.

Hsiao Chiek said...

Hi, I managed to find the case about the Navy Sgt. Citation of the case is PP v N [1999] 4 SLR 619. I supposed you are Mr Gilbert Koh and not Mr Wang? :)

joshua.loke.2007 said...

Actually, false rape accusations is more common than thought to be:http://www.familieslink.co.uk/download/jan07/False%20rape%20claims%20common.pdf

"A further investigation by independent reviewers found that 60% of the rape allegations are false"

And that victims of false rape accusations face just as much psychological trauma as victims of rape: http://www.freewebs.com/ferniesidethreecampaign/falseaccusations.htm

http://www.falserape.net/false-rape.htm

CNN's Tucker Carlson recently wrote a book, Politicians, Partisans and Parasites, which includes an account of Carlson being falsely accused of raping a woman. Carlson describes how a false rape accusation can potentially ruin a man's life. http://www.equityfeminism.com/archives/years/2003/000062.html · How the legal system allows women to physically abuse men http://www.batteredmen.com/index.htm

I believe that, after reading these sentences, just as rape victims should be sympathised with, victims of false rape accusations should be.

The unfortunate that is that while alot of rape cases may NOT be brought up to court, alot of false rape allegations have not been detected by our current legal system.

One of the biggest dichotomy that this no to rape petition does not address, is that while our current situation lets a potential criminal's off more leniently while abusing his wife, the proposed scenario allows a female criminal get away more leniently with falsely accusing her husband.

Classic hobson's dilema.

I would like to encourage the proponents to re-think their proposal lest they create more problems for society.