A Question of Law
The issue with the debate on the legality of marital rape in Singapore, is that many parties seem to forget that this topic is ultimately a matter of law, not morality. No party, serious enough to have its opinion considered, has, to my knowledge, purported the moral righteousness of marital rape, or denied its wrongness. The question we are facing, ultimately, is a matter of legality.
Some groups have launched vicious attacks against opponents of criminalization, labelling them as subscribers to immoral ideas and making sweeping accusations that do little to advance the debate. These attacks, carried out with strong moral undertones, are so adversarial they seem to suggest a “you are either with us or against us” attitude and only serve to alienate the masses.
They have to stop.
Perhaps there are some out there who have, while hiding behind the cloak of internet anonymity, denied that rape is wrong.* But these individuals are in the minority, and do not constitute the formal opposition against criminalization. Yes, they should be addressed and condemned.
However, using the same moralistic tones used to address these tiny group of individuals against the wider masses is offensive and alienating as the larger majority does not subscribe to their beliefs, and in fact oppose them.Serious opponents of the criminalization of marital rape do not believe rape is moral, and do not condone the act of marital rape. They do not deny the duty of the law to prosecute rapist spouses, but instead derive most of their opposition from legal grounds and are concerned about our judges’ ability to prosecute without the fear of wrongful convictions hanging over their heads. This is the main issue that supporters for criminalization should address, and not the “immorality” of their opponent’s arguments, subscribed to by only a tiny minority.
Thus, for the sake of furthering the cause for criminalization, we should focus instead on discussing the issue with matters of law and legality in mind (“legalizing the issue”). Any other type of behaviour would only alienate the masses and harm the campign for criminalization.
Putting a Stop to Marital Rape
I believe marital rape should be criminalized and I think there is a very strong case for it. The main issue though, is not a matter of whether rape is wrong or whether it is immoral (it is), but rather whether it is possible to gather enough evidence during cases of marital rape to weed out perjurers and convict only the guilty. I will attempt to argue this case by addressing the main legal issue at hand, which is the higher possibility for perjury to take place and the increased propensity for wrongful convictions that may result.
Contrary to what some may allege, the argument that “sexual relations are to be expected in a marriage” is not an argument to justify non-consensual sex. Rather, it is an explanation of the higher difficulty of ascertaining the occurrence of rape in such circumstances. This is because, it is more likely that evidence of intercourse between two strangers indicates a higher probability that rape has taken place as compared to evidence of intercourse between two regular sex partners. Of course this alone is not enough to end the debate. Once this fact has been established, we must then proceed to ask if this is enough to warrant a retention of the de-criminalized status of rape between spouses who are living together.
As such, I would argue that firstly, we can extend the current methods to determine the occurrence of rape in terms of witness examination, forensics etc. to gather sufficient evidence to warrant a conviction for marital rape, provided there exists a different standard for the burden of proof. Secondly, the current measures used to combat perjury in other cases can be extended to marital rape to guard against perjury and avoid wrongful convictions.
Gathering of Evidence
The most difficult part about proving that rape has taken place is to prove that the intercourse was non-consensual. As mentioned earlier, it is more difficult, though not impossible, to prove if both the victim and the accused are having sexual relations.
Hence, we must turn our attention to the other factors other than the personal relationship between the victim and the accused.One example, would be searching for evidence of struggle. This can include bruising, abrasions or any other type of wound on body of the victim, or the accused, likely to take have taken place during non-consensual intercourse.
In addition, the courts can also consider placing greater scrutiny and weight on the testimony of the witnesses, the accused and the victim in determining the facts of the case and in order to improve the quality of such evidence, allow for certain provisions including:
- Allowing the witness to provide in-court testimony via pre-recorded video so that they need not provide ‘live’ evidence of what happened to them
- Allowing the giving of evidence from behind a screen in a courtroom to prevent the victim (or other witness) and the defendant seeing each other
- Allowing the giving evidence away from the courtroom through a live television link to prevent the victim or witness having to go into court
- The protection of the identities of the victim, the accused, all witnesses and any individual who may contribute to the identification of the aforementioned people..
- The provision of pre-trial therapy to mentally prepare victims and witnesses for trial such as to maintain the quality of victim and witness testimony
- Requiring a written explanation from the victim and an investigation by the police if the victim decides to withdraws support from the case and refuses to give further evidence
Such measures must be accompanied by the presence of quality legal professionals to sort out the facts of the case and construct a positive relationship with victims and witnesses in order to obtain the trust and confidence required for quality testimony. The police must also deal with victims in a sensitive and professional manner as their emotional state can heavily affect their account of the rape.
Without proper guidance and frame of mind, the victim may experience confusion andaccidentally make false statements, thereby affecting the reliability of her entire testimony.
However, it may be necessary to concede that because of the less definitive nature of these methods, the burden of proof may have to be higher than that of rape for successful conviction to take place.
Next, the probability of wrongful conviction can be mitigated by importing the various mechanisms used to combat perjury in other situations, most prominently that of domestic violence cases. By reducing the cases of perjury, the courts will have greater confidence in hearing cases of rape, both within and outside marriage.
The first step is to step up the prosecution of perjurers for the purposes of deterrence, as well as to initiate a greater investment in the investigative process. Individuals are less likely to perjure if they are aware of the increased likelihood of getting caught, and the severe consequences in the case that they do.
The integrity of legal professionals plays an important role in combating perjury. Pursuant to Part IV of the Legal Profession Act, if a lawyer discovers that his client has committed perjury, he may choose to discharge himself from acting further in the case of if he chooses to continue, he must conduct the case in a manner that does not perpetuate the perjury or fraud. If these laws are abided by, perjured statements will be neutralized and the perjurer can be separately prosecuted afterwards.
Ultimately, whether or not we are ready to criminalize marital rape depends on the confidence and the ability of our criminal justice system, not whether the small minority who think rape is not immoral exists or not. I do not profess to have all the answers, but I do believe that if we are to make any progress, we must be aware of the main legal issues at hand and shape our arguments around them. In other words, let us “legalize” the campaign to make marital rape illegal.
Only then can we convince those who do not feel that we are ready to criminalize marital rape that not just have the duty, but also the ability to do so.
*For example, they assume that those who possess reservations about criminalizing marital rape necessarily assume that:
1. “by getting married, a woman loses her right to say ‘no’ to any sexual demand imposed by her husband, including violent rape”
2. “because men are supposed to have stronger sex drives than women, wives are supposed to be the compliant receptacles of their husbands’ drives, with no right to agree or disagree”
3. (there exists) “ the sexual subordination of wives to husbands.”