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Future Forum's Heng Molika was published in South East Asia Globe on November 9th. Check out the original article here, and read it below!
Sexual assault within marriages remains an overshadowed and overlooked issue in the region, due to cultural taboos and vague legal definitions
A third of of Southeast Asian partnered women aged 15-49 will experience physical and/or sexual violence from a current or former male partner at least once in their lifetime, according to data from the World Health Organization But some types of assault are given more attention than others.
Marital rape, has been particularly overlooked throughout the region. This violence against women – and it is mostly women who experience marital rape – is often overlooked because traditionally this act is not actually considered a crime. Social norms throughout the Southeast Asia region do not view marital rape either an offence or as a violation of women’s rights. In many Southeast Asian nations, including Cambodia, marital rape has remained under a shadow of legal and normative ambiguity.
But to truly protect women’s rights, marital rape must not be tolerated. It must be considered a crime that is subject to criminal punishment. ASEAN must take this issue head-on as a priority topic for both dialogue and concrete action.
Laws, perceptions and beliefs on marital rape
When it comes to legal codes, and the ways in which these documents deal with marital rape, there is a wide spectrum across ASEAN.
Some countries in Southeast Asia such as Laos, Philippines, Vietnam, and Thailand explicitly label marital rape as a crime in their legal codes. As recently as April 2022, Indonesia joined their ranks in criminalising marital rape in a landmark sexual violence law which took 10 years to pass.
On the other end of the spectrum, the legal codes of Malaysia, Brunei, and Myanmar explicitly reject the labeling of the act of non-consensual intercourse between a husband and a wife as rape. In Myanmar and Brunei, the only circumstance in which rape within a marriage is a crime is if the wife is under the age of 13 and 14 respectively.
In Malaysia, the Prime Minister’s Department defended the decision not to recognise marital rape in 2013 by explaining the ways this concept contradicts with Syariah law and religious beliefs.
And as recently as 2018, a deputy minister in Malaysia’s Prime Minister’s Department, Mohamed Hanipa Maidin, told parliament that the government had no plans to make marital rape a crime as it was hard to prove in court.
In other ASEAN countries, the act of marital rape falls into a grey area within the legal code.
In Singapore, a long-standing immunity for rape within marriage was only removed within the last two years, but the legal code still does not explicitly criminalise this kind of rape. This stigma has been responsible for keeping victims silent. While Singapore has been able to push through a bill criminalising marital rape, experts say the true hurdle is reporting.
“The bigger problem is whether they will be able to get spouses to come forward,” said Pratap Kishan, a director at Kishan Law Chambers LLC in Singapore.
Similarly, in Cambodia, the legal code does not specifically describe marital rape. Cambodia’s Law on the Prevention of Domestic Violence and the Protection of Victims contains ambiguous wording related to concepts such as the definition of domestic violence and marital rape.
In Article 3 and 7 of the Kingdom’s Law on the Prevention of Domestic Violence and the Protection of Victims recognises marital rape as an act committed through “sexual aggression” as a form of domestic violence. The law incorporates “violent sex” as an element of “sexual aggression”. Unfortunately, there is no definition given to “violent sex”. The law is also silent on the “matter of consent” which is a key point of marital rape.
Law enforcers and society think it is the women’s role to fulfil the sexual needs of her husband” Reni Herdiyani, vice chair of Kalyanamitra. Because of these unclear definitions of what constitutes marital rape, perpetrators mostly go unpunished or are only charged with domestic violence, because it is more culturally acceptable as a crime committed by husband to wife.
“For example, if a sexual violence case is happening within a home, it will be a domestic violence case most of the time,” said Inala Fathimath, a consultant for UN Women.
Across the region, even in countries where this act is explicitly listed as a crime in the legal code, social norms which still view rape within a marriage as an impossibility serve as a barrier to practical enforcement.
“Law enforcers and society think it is the women’s role to fulfil the sexual needs of her husband,” said lawyer Rena Herdiyani, vice chair of Kalyanamitra, an Indonesian women’s rights organisation in the WEAVE network, a regional group of women’s organisations and advocates.
A recent study on sexual experiences within heterosexual marriage in a district in Kampong Speu, Cambodia interviewed 11 married women. All of the participants reported experiencing some form of unwanted sex within their marriages.
These experiences ranged from forced sex, to sexual experiences that involved coercion, compliance—”willingness to consent to unwanted sex despite a lack of sexual desire”—and internalised pressure—described as “going along with sex to fulfill wifely duties, in the absence of sexual desire, as bounded by social and cultural gendered norms.”
In Malaysia, these cultural norms are well known where women keep silent about these types of experiences out of a sense of shame if their community were to find out.
But, regardless of traditional norms, perspectives or religious beliefs, “non-consensual sex” in any form must not be tolerated.
Why all ASEAN countries must criminalise marital rape
The consistent criminalisation of marital rape would help to protect and promote women’s rights across the ASEAN region particularly womens’ rights to individual autonomy over their own bodies, and their own well-being.
Treating marital rape as a clear criminal offense would help ASEAN countries to uphold their goals and fulfill their responsibilities as stated in the Declaration on the Elimination of Violence against Women and Children in ASEAN, which was adopted in June of 2004 and holds member countries accountable to efforts which “strengthen and, where necessary, enact or amend national legislations for the elimination of violence against women…”
A recent study in 2022 on marital rape and its impact across India and Southeast Asia indicated that women who are victims of this type of rape have suffered serious psychological consequences. The study reported statistically significant associations between marital rape and mental health outcomes, including clinical depression in seven out of eight victims; and post-traumatic stress disorder in one in three victims. Other physical consequences such as miscarriages, poor newborn health, HIV infection, and increased suicide rates were also reported as a result of marital rape.
Discussion of this pressing matter is too often dismissed as being taboo or inappropriate. The violence and the consequences of marital rape have been ignored by the public and overlooked by the law and policymakers for too long.
“Women are reluctant to report such matters because they feel it is something that is within the family and they should maintain that,” Pratap Kishan, a director at Kishan Law Chambers LLC in Singapore.
We need unanimous action from across the ASEAN membership on this issue. If all ASEAN member states laws explicitly define the criminality of marital rape, then advocates in the region can move on to the real work ahead, which will require the region to tackle societal norms which hamper the full enforcement of these laws.
This lack of open, candid discussion also means that the data around this issue has also been limited. The World Health Organization indicated that in general statistics on marital rape are hard to come by because of the sensitivity of the issue. Data is even harder to collect in Southeast Asia nations not only because it is not a crime, but also because most of the countries still hold a patriarchal mindset and norms.
What ASEAN could do
To empower women and strengthen their ability to claim their rights, the issue of marital rape, criminalisation and the implementation of the law should be included in the agenda of the ASEAN Ministers Meeting on 10 – 14 November. The ASEAN community should exert its combined power in ensuring that each country’s government fulfills its obligations under the Declaration on the Elimination of Violence against Women in ASEAN, including by having explicit laws prohibiting marital rape. The law should define the element of “consent” as a crucial term required to critically and objectively assess the crime of marital rape.
Regarding implementation of laws concerning marital rape punishment should be shared among ASEAN countries as a model for the countries who do not yet take necessary action in responding to this matter. Sharing these examples and best practice will also serve as an encouragement for victims of marital rape to report and claim themselves justice.
To boost support for criminalisation, there also needs to be a change in public perception of marital rape, using government public awareness campaigns to challenge traditional gender roles, norms, and victim-blaming myths, as well as, to create a more empathic response for women who experience this trauma.
It is not only the duty of women to protect themselves, but it is also the collective responsibility of a society and of the governments across this region to provide all women with a safe environment, regardless of their age, their nationality, their religion, regardless of marital status.
This article is produced with the financial assistance of Embassy of Sweden Section Office in Phnom Penh, European Union in Cambodia through Transparency International Cambodia. The views expressed herein can in no way be taken to reflect the official opinion of the European Union, Sweden Embassy, TI Cambodia, or Future Forum.