Penal Code (Amendment) Act 2007: Rape within Marriage
![handle is hein.journals/sjls2009 and id is 259 raw text is: Singapore Journal of Legal Studies
[2009] 257-271
PENAL CODE (AMENDMENT) ACT 2007: RAPE WITHIN
MARRIAGE
CHAN WING CHEONG*
I. INTRODUCTION
The former section 375 of the Singaporean Penal Code' contained an exception
which stated that sexual intercourse by a man with his own wife ... is not rape.
This has been commonly interpreted to mean that it was not possible to convict a
husband of the offence of rape on his wife under any circumstances so long as they
remain legally married.2 The only qualification to the blanket immunity for husbands
is that the wife must not be under 13 years of age.3 For example, one commentator
MA (Oxon), LLM (Cornell), Barrister (Gray's Inn), Attorney and Counsellor (New York State), Advocate
and Solicitor (Singapore), Associate Professor and Amaladass Fellow, Faculty of Law, National University
of Singapore. I am grateful to Professors Leong Wai Kum, Michael Hor and Stanley Yeo for their valuable
comments on an earlier version of this article. All errors are of course mine.
Cap 224, 1985 Rev. Ed. Sing [Penal Code]. The Penal Code was most recently amended by the Penal
Code (Amendment) Act, No. 51 of 2007, which came into effect on 1 February 2008.
2 The offence of rape in Singapore is gender specific in that it can only be committed by a man on a woman.
The new s. 375 of the Penal Code provides:
Any man who penetrates the vagina of a woman with his penis ... (a) without her consent ... shall be
guilty of an offence.
The possibility of male rape is covered by the offence of sexual assault by penetration in the new s. 376
of the Penal Code. Under the new s. 377C(b) and (c) of the Penal Code, sex reassignment procedures
(or what is popularly known as sex change operations) are recognised to effectively change the sex of
a person for the purposes of the sexual offences in ss. 375 to 377B of the Penal Code.
The age limit was originally set at 10 years when the Penal Code was first enacted as Ordinance No. 4 of
1871 when Singapore was part of the Straits Settlements. It was subsequently raised to 12 years by the
Penal Code (Amendment) Ordinance 1891 (S.S.), Ordinance No. 16 of 1891 and later to 13 years by the
Penal Code (Amendment) Ordinance 1926 (S.S.), Ordinance No. 32 of 1926. The age limit of 13 years for
conjugal relations with a wife is contrary to Singapore's general law in two ways: (1) the age of consent
for sexual relations is set at 16 years by s. 376A of the Penal Code; and (2) the minimum age for marriage
is 18 years for non-Muslim marriages (Women's Charter (Cap. 353, 1997 Rev. Ed. Sing.), s. 9 [Women's
Charter] and also for Muslim marriages in general unless special circumstances apply (Administration
of Muslim LawAct (Cap. 3, 1999 Rev. Ed. Sing.), s. 96(4), (5) [Administration of Muslim Law Act]). The
low age limit for rape therefore only serves to protect men who are married under a foreign law which
allows brides as young as 13 years-old. The age limit of 13 years is still retained in the new s. 375(4) of
the Penal Code. It is hoped that Singapore will raise the age limit in rape from 13 years to at least 16 years
(or better yet, 18 years) as soon as possible to keep the law on rape consistent with the other branches
of law. The United Nations General Assembly had, as long ago as 1965, recommended that Member
States set a minimum age of marriage at 15 years, unless it is dispensed with for serious reasons, in
the interests of the intending spouses, see Recommendation on Consent to Marriage, Minimum Age for](ViewImageLocal?handle=hein.journals/sjls2009&div=16&collection=&method=preview&ext=.png&size=3)
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Penal Code (Amendment) Act 2007: Rape within Marriage
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