By refusing to criminalise marital rape or even acknowledge that sex without consent between a husband and wife is rape, the Government is failing to protect women who are raped by their spouses.

And it does happen. Often.

The Women’s Aid Organisation (WAO) reports that an average of 40% of their cases in the last five years include sexual violence within a marriage. The Women’s Centre for Change in Penang (WCC) handled 38 cases of marital rape last year alone.

These figures don’t rightfully reflect the severity of the problem. Worldwide, cases of domestic violence, let alone marital rape, are grossly under-reported.

Under current Malaysian law, marital rape is not recognised as a crime and is only punishable under section 375A of the penal code which states that it is an offence for a husband to cause his wife hurt or to fear death in order for him to have sexual intercourse. If convicted, the perpetrator can face up to five years jail.

But sometimes, there are no injuries, points out social worker Wong Su Zane who has worked with victims of marital rape who seek refuge at WAO.

“In many cases, the husband forces himself on his wife, is rough with her, threatens her even, but doesn’t leave her bleeding or bruised. Is this not rape? What happens then?” she asks.

Besides, points out WAO’s executive director Sumitra Visvanathan, rape is, by nature, violent whether it leaves marks or not.

Last week, de facto law minister Nancy Shukri announced that the Government had no plans to amend Section 375 of the Penal Code to categorise non-consensual sex between husband and wife as rape. She said the law provided protection to wives under Section 375A of the Penal Code.

The announcement immediately drew strong reactions from women’s rights groups who have for many years been lobbying for the criminalisation of marital rape.

The Association of Women’s Lawyers called the move “regressive” and “contrary to the recommendations of the Cedaw committee on Malaysia”. (Cedaw is the UN’s Convention on the Elimination of all Forms of Discrimination Against Women.)

“In many cases, the husband forces himself on his wife, is rough with her, threatens her even, but doesn’t leave her bleeding or bruised. Is this not rape? What happens then?”

In a statement to the media the Joint Action Group for Gender Equality said it was demeaning and “it is shocking that our country continues to allow marriage to be a licence for a man to force sex on his wife”.

Nobody has been charged under Section 375A since the law came into effect in 2007.

This statistic, says Loh Cheng Kooi, the executive director of the WCC, is “quite telling”.

“Our laws rightfully criminalise causing harm to another person, be they man and wife. However, such harm goes beyond mere physical harm. Sadly, no reference has been made to Section 44 of the Penal Code that defines injury as ‘any harm whatever illegally caused to any person, in body, mind, reputation or property’.

“Also, it seems to have been conveniently forgotten that sexual violence towards a wife falls within domestic violence, which is a crime under the Domestic Violence Act. Therefore, there is no reason why marital rape should not also be a crime under the Penal Code,” says Loh.

No access to justice

Because marital rape isn’t recognised as a crime, it is hard for women to get access to justice.

“Many women who have experienced marital rape don’t use the term rape when describing the sexual violence committed against them, as they believe that marriage is sacred and what happens in the home should remain in the home – so you can imagine what it would take for a woman to go to a police station and say she is being sexually violated by her husband,” says Loh.

Marital rape survivor Amy (not her real name) shared her experience when she attempted to make a police report the morning after she was raped by her husband five years ago.

“It wasn’t the first time it happened but this time, he did it in front of my children. I had to do something.

“But the police officer asked me why I was there. I remember he told me, ‘Ini masalah rumahtangga. Nak buat report macam mana?’ (This is a domestic problem. How can you lodge a police report on that?) and told me to go back and try and ‘buat baik’ (reconcile) with my husband,” says Amy.

This, says Loh, is a common experience many victims face.

“Unfortunately, as with many sexual crime cases, victims who try to make a report are often not given any support by the front desk officers. This often stems from a lack of understanding and patriarchal beliefs that a wife must submit to her husband.

“Until marital rape is acknowledged to be a crime there is no protection for any woman who is married against being raped by her husband,” says Loh.

Betrayal of trust

Many women who are victims of marital rape find it hard to reconcile conventional beliefs (that it is impossible for a man to rape his wife) with the violation they have experienced.

“This reluctance stems from the patriarchal belief and practice of the submission of a wife to a husband. That the husband is the head of the household and wields power over his wife and children,” Loh says.

However, a marriage licence is not a licence to rape and should not be used as a shield.

Wong says that marital rape is destructive because it violates the basis of a marital bond.

“When you are raped by someone you love and trust, someone you share your life and your home with, the psychological trauma is actually far greater than if a person were raped by a stranger.

“Apart from the physical and sexual violation, it is a betrayal of trust,” she says.