Bryan Dennis G. Tiojanco (Bo) is a postdoctoral fellow at the National University of Singapore Faculty of Law Centre for Asian Legal Studies. He has a J.S.D. and LL.M. from Yale Law School and a J.D. (cum laude) from the University of the Philippines College of Law. Bo is grateful to Daryl Yang for his invaluable help in his research for this essay, and to Jack Lee and Jaclyn Neo for their comments. You can follow him on Twitter @botiojanco.
Singapore’s recent repeal of the marital rape exemption had long been called for and is worth celebrating. Up until last December in Singapore a man could force sex on his wife, although estranged, without risking punishment for rape; only if the wife had been prescient enough to secure, in advance, a formal document showing her sexual non-consent could her husband be punished for rape. Starting this January, husbands in Singapore will at last be criminally guilty of rape for having nonconsensual sex with their wife.
The repeal is a clear break from an almost 300-year-old English precedent dating back to the 18th century. Unfortunately, as with most longstanding rules, the sheer age of the repealed exemption gives it a gravity which will stubbornly tug many legal minds back to it. Judicial thought has had a long habit of thwarting precedent-breaking statutes. It does so sometimes by carrying over the reasons given for the old rule into the application of the new statute. A progressive parliament can guard against this by limiting the discretion of conservative courts. And it can do so more effectively by studying key precedents a judge would likely consult in applying the new statute.
No precedent will shape the success of the marital rape exemption’s repeal more than the Singapore Court of Appeal’s 2007 decision in Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik. The Singapore High Court had found Mohammed Liton guilty of rape, sodomy, and insult of a woman’s modesty, and sentenced him to a total of two years and three months’ imprisonment. The Court of Appeal decided that the trial judge had been too lenient, and sentenced Mohammed Liton to six years imprisonment and four strokes of the cane for the rape alone. In arriving at this sentence the court took the rapist’s previous sexual relationship with the woman as a mitigating factor, serving to lessen his punishment by four years and two cane strokes.
The Court asserted that “the effect of any prior relationship between the parties will depend on all the circumstances of the case”; it would be equally wrong to treat it as either “always being a mitigating factor” or “always being an aggravating one.” It did, however, elaborate that “four differences worthy of note where the rape was committed by a husband compared to a stranger” were, “subject to the appropriate modifications,” “equally” applicable to the case before it: first, the rape “could not be as horrible as rape by a stranger”; second, “the stranger-rapist was a greater menace to society”; third, “the husband-rapist deserved some sympathetic consideration”; and fourth, “the victim herself might want a lesser fate to befall her husband.” These four differences, said the Court, explain why “a husband who raped his wife should be treated differently from a stranger who did the same.”
Although Mohammed Liton was not married to the woman, the Court of Appeal pointed out that, just like a married couple, they, too, had had “an intimate relationship which was also sexual in nature”. “The significance of these sexual activities,” said the Court, was that the woman “was not as traumatized as she might have been after the incident of rape”. In addition, their past relationship also indicated that the rape simply resulted from Mohammed Liton “losing control of himself in the midst of” what the Court described as a “lovers’ quarrel”. The Court supported this conclusion with Mohammed Liton’s explanation that “he had lost control of his mind […] as he was deeply in love with her”.
The twin significance which the Court gave to the parties’ sexual relationship are both based on long disproven rape myths. The Oxford Journal article which the Court cited, though without discussion, provides valuable lessons. In addition, a well reviewed book by two psychologists had found that marital rape survivors invariably suffer from “special trauma” of “betrayal, entrapment, and isolation” in addition to “many of the same traumas as victims of other rape”. It is thus a myth that a sexual relationship with her rapist makes rape less traumatic to a woman; to the contrary, it is often more so. “With your husband, it becomes personal,” explained one marital rape survivor. “It’s such a personal abuse.”
That a rapist had merely “lost control” of himself in the heat of his passions is also a long-disproven rape myth. As the Oxford Journal article discusses, relationship rape is often perpetrated by what experts call a “power rapist”: one who rapes purposely “to restore his sense of power, control, identity, and worth through his sexual offense”. For him the rape was not caused by lost control, but was “the sexual expression of power and anger”. Often the rapist expresses his power and anger by forcing the woman to engage in acts she would find offensive. Hence the Court should have found telling the fact that Mohammed had forced sodomy on the woman, who during that time had “started to cry” because she found it “very painful”.
The Mohammed Liton case could be further criticized as a violation of Singapore’s obligations under the Convention for the Elimination of Discrimination Against Women (CEDAW), one of the three human rights treaties the country has ratified. In a celebrated opinion, the treaty body which monitors the CEDAW’s implementation concluded that, pursuant to its “due diligence obligation to banish gender stereotypes” under the CEDAW, a country must “[e]nsure that all legal procedures in cases involving crimes of rape and other sexual offenses are […] not affected by prejudices or stereotypical gender notions”, and thus must provide “[a]ppropriate training for judges […] in understanding crimes of rape and other sexual offences in a gender-sensitive manner”. As Rebecka Koziomtzis and I have previously argued, a judiciary’s adherence to rape myths violates women’s rights.
In this regard, the Court of Appeal did cite “research evidence […] that rape by a husband or other sexual partner is as serious as ‘stranger rape’ in terms of its impact on the victim” in concluding that it is “a myth that there is always less ‘violation’ in such cases as compared to ‘stranger’ rapes.” I suggest, however, that the Court had drawn the wrong conclusion: what research evidence suggests is not that relationship rape—including marital rape—is not always less traumatic; it is that relationship rape is often more so. This perhaps explains the Court’s sympathy with what it gleaned was “probably still” the position in England: that “the relationship between the parties may have mitigating value by itself”, although “this may be neutralised or outweighed by other factors in the context of each individual case”.
How, then, can Singapore better comply with its obligations under CEDAW and recognize the special trauma suffered by relationship rape survivors? For a start, it is crucial for the courts to rethink any underlying rape myths that parliament had sought to banish with its repeal of the marital rape exemption. As for parliament, my personal preference is the California Penal Code’s strategy of defining spousal rape separately from other rapes and then bundling it with those other rapes in prescribing the range of penalties they attract. This strategy not only gives the same starting point in sentencing for stranger rapes and marital rape, it also precludes the marital bond from being a factor in determining the proper punishment for rape.
 The total sentence imposed was six years and three months’ imprisonment, and four strokes of the cane.
 Philip N.S. Rumney, “When Rape Isn’t Rape: Court of Appeal Sentencing Practice in Cases of Marital and Relationship Rape” (1999) Oxford Journal of Legal Studies 19(2) 243.