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.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *Click to go to the "No To Rape" website and sign the petition.
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