LETTER | The Women’s Aid Organisation is disappointed by Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin’s comment that the government does not currently plan to criminalise marital rape and urges the government to reconsider this decision.

Current Malaysian laws explicitly permit husbands to rape their wives, through an 'exception' to the offence of rape. We must delete this exception, as it denies women their autonomy and right to say no, empowers abusive husbands, and is out of step with global norms.

Malaysia’s Penal Code – inherited from the British – defines rape in Section 375, but then explicitly exempts husbands (who rape their wives) from the offence. It reads:

“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: (a) against her will; (b) without her consent;

"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.”

The exception explicitly permits husbands to rape their wives.

Section 375A of the Penal Code (“Husband causing hurt in order to have sexual intercourse”) offers some protection, but is inadequate.

Firstly, the punishment in Section 375A (up to five years imprisonment) is more lenient compared to rape (up to 30 years). Secondly, the section does not recognise rape, but rather, a husband causing “hurt or fear of hurt or death to his wife in order to have sex with her”.

But rape can happen without hurt or fear of hurt – for example through intoxication or other forms of coercion. And thirdly, it sends the wrong message – that sexual assault within marriage is not serious.

We do not need to create a new offence to recognise the right of wives not to be raped by their husbands. We simply need to delete the exception.

Empowering abusive husbands

A 2014 Universiti Sains Malaysia study estimated that nine percent of ever-partnered women in Peninsular Malaysia have experienced domestic violence in their lifetime. Of this nine percent, 11 percent reported “forced sex” as a form of abuse.

This suggests around 100,000 women in Malaysia have been raped by their intimate partner during their lifetime.

If we do not change our laws, we will continue to enable abuse.

The exception to rape originates from British colonial law – not religion. Many countries that inherited British law have repealed this particular section. This includes the United Kingdom itself, and soon it will include Singapore.

Only 28 countries still have marital rape exemption laws, according to a 2016 World Bank review of 173 countries. This makes Malaysia one of just 16 percent of countries that still has not progressed.

When the Cedaw (Convention on the Elimination of All Forms of Discrimination Against Women) Committee reviewed Malaysia in 2006 and 2018, it recommended that Malaysia criminalise marital rape.

If we do not change our laws, Malaysia will continue to be out of step with international norms and standards.

Parliament must repeal the Exception to Section 375 of the Penal Code.

Marriage must not be a license to rape.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.