Convention on the Rights of the Child Criminal justice Parliament of Singapore

Child Marriage & Sexual Consent: Time for Reform? | Symposium on Criminal Law Reform Act 2019 | By Daryl WJ Yang

Daryl WJ Yang serves as the Managing Editor of the Singapore Public Law Blog. He graduated with a Bachelor of Laws (First Class Honours) and a Bachelor of Arts with Honours (Magna cum laude) with a minor in Anthropology from the Faculty of Law and Yale-NUS College at the National University of Singapore. Daryl is grateful to Kevin Tan, Bozy Lu and Jack Lee for their feedback and comments.

Cover Image by Alexas_Fotos from Pixabay.

In May 2019, Singapore passed the Criminal Law Reform Act 2019 (the “CLRA”) which introduced several new sexual offences involving the exploitation of minors between the age of 16 and 18. To make out offences under sections 376AA, 376EA, 376EC and 376EE, it is not necessary for the prosecution to prove whether the victim did or did not consent to the sexual acts in question and it is also not a defence that the minor had consented. According to the Minister for Law and Home Affairs Minister K Shanmugam during the Second Reading of the CRLA, this is because “the young person’s consent is… compromised”.

However, the enactment of these new offences highlights an inconsistency in the legal framework on sexual consent in Singapore: if a minor between the age of 16 and 18 might not be able to give effective consent, why should a child younger than 16 be capable of consenting to sex in a child marriage? According to section 375(4) of the PC, it is not an offence for a man to commit an act of penetration against his wife under the age of 14 with her consent. Similarly, section 376A(4) provides that no person shall be guilty of an offence for the sexual penetration of a spouse who is a minor under 16 years old with that minor’s consent. To be clear, sections 375(4) and 376A(4) are consistent with section 90 of the PC, which specifies that consent is not effective if it is given by a person who is under 12 years of age unless the contrary appears from the context.

In this regard, it is noteworthy that, in its 2019 Concluding Observations on Singapore’s combined fourth and fifth periodic reports on the United Nations Convention on the Rights of the Child (“UNCRC”), the Committee on the Rights of the Child (“CRC Committee”) stated that it was “deeply concerned” that a minor under the age of 16 can consent to sexual activity under Singapore law. The CRC Committee has also previously expressed concern that 12 as a minimum age of sexual consent was too low.

Figure 1: Offences relating to sexual penetration and the relevant age at which consent may be effective

During the Second Reading of the CLRA, Member of Parliament (“MP”) Louis Ng highlighted that “the age of the child should be the only factor here and not whether she is married to the man”. In response, Senior Parliamentary Secretary (“SPS”) for the Ministry of Home Affairs and Ministry of Health Amrin Amin simply explained that it is “not tenable to completely ban minor marriages today” and added that child marriages are “extremely rare” and that “robust safeguards are in place”.

With respect, SPS Amrin’s explanation does not address the question as to why a minor under the age of 16 is treated by Singapore law to be able to give sexual consent in the context of marriage when they would otherwise be unable to do so in other circumstances. This is also particularly troubling since minors under 18 are not even able to consent to their own marriage, requiring instead the consent of their parents or guardians to obtain a Special Marriage License (“SML”).

One possible explanation for this incongruence is perhaps the allegedly special nature of the conjugal relationship, which was raised in defence of the marital rape exemption. In that context, husbands cannot be guilty of marital rape because marriage is regarded as a “mutual matrimonial… contract” from which a wife cannot retract her consent. However, Singapore has repealed the marital rape exemption with the passage of the CLRA such that sexual consent is no longer presumed for any sexual activity that takes place within marriage. In any case, it remains unclear how a child might be able to give sexual consent within marriage when she would not otherwise be able to do so. As highlighted by MP Louis Ng, the marital status of a child should not have any bearing on her ability to give sexual consent.

At the core of this controversy is the protection of minors from sexual exploitation. It is for this reason that the Singapore Government has enacted a slew of new offences addressing the sexual exploitation and predatory conduct towards children. These dangers do not disappear in the context of marriage; the fact that a minor is married does not mean that they will not be sexually exploited by their spouse. In the UNCRC General comment No. 4, the CRC Committee highlighted that the minimum age of sexual consent should “closely reflect the recognition of the status of human beings under 18 years of age as rights holders, in accordance with their evolving capacity, age and maturity”. Given that Minister Shanmugam has acknowledged that even the sexual consent of a minor between 16 and 18 years old is considered “compromised”, it should follow that the sexual consent of a child below the age of 16 should be at least equally if not even more defective.

Further, even if it is accepted that a minor is able to give sexual consent as a matter of law, the fact remains that they are in a particularly precarious position where they may find themselves unable to refuse to give consent or seek help when they have been sexually assaulted by their spouse.[1] Marital rape and domestic violence are serious concerns even for adult spouses and particularly women, and the risks of such abuse are clearly exacerbated when the spouse is a minor. Notably, according to recent statistics from the Ministry of Social and Family Development, most minors under 18 who have made successful SML applications between 2013 and 2017 were girls.

It is time to repeal sections 375(4) and 376A(4) of the PC. Marital status should have no bearing on a minor’s ability to give sexual consent. In addition, section 90 of the PC should be amended to reflect a clear and unambiguous minimum age of sexual consent at 16 years in line with the existing legal framework of sexual offences.[2] These proposed amendments will send a strong deterrent message and ensure that all minors can grow up in Singapore free from sexual exploitation and violence. Setting a clear minimum age of sexual consent at 16 years of age will also reinstate consistency in Singapore’s framework on sexual offences and ensure Singapore’s compliance with its obligations under the UNCRC. Furthermore, the lawfulness of child marriages should also be reconsidered notwithstanding the “robust safeguards” in place; after all, the Singapore Government already recognises the serious harms that child marriages can cause to minors, having co-sponsored numerous UN General Assembly and Human Rights Council resolutions on this issue.

[1] According to interviews with social workers by The Straits Times, marital rape is “vastly under-reported”. See also, Theresa C Kelly and Lana Stermac, “Underreporting in Sexual Assault: A Review of Explanatory Factors” (2008) 9(1-2) Baltic Journal of Psychology 30; David Allen, “The reporting and underreporting of rape” (2007) 76(3) Southern Economic Journal 623.

[2] It is already an offence to do the following to a minor under the age of 16: sexual penetration (section 376A); commercial sex (sections 376B – 376D); sexual grooming (section 376E); sexual communication (section 376EB); and engaging in sexual activity or showing sexual images in the presence of such a minor (section 376ED). This is also consonant with the fact that a person between the ages of 16 and 18 is able to give consent unless they are in an exploitative relationship under sections 376EA, 376EC and 376EE.

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