Marital Rape: The Perspective of Legal Positivism and Natural Justice

Social IssuesPhilosophy

  • Author Nurul Wahida & Dr Nabeel Althabhawi
  • Published November 18, 2021
  • Word count 952

When a husband engages in a sexual act with his wife against her will or without her consent, it is known as marital rape. Marital rape frequently involves violence, physical force, and threats, making the woman believe that if she does not comply, her husband will physically harm her. Marital rape, on the other hand, is not explicitly acknowledged in Malaysia. This is due to the complex history of Malaysia’s sexual offences law, its position in Shariah law, the reality of criminal practise, as well as the Malaysian people’s traditions and culture. The question here is marital rape a crime?

Legal positivism rejects any relationship between law and morality, implying that there is no space for critical interpretation of the law. The reality that legal positivism dismisses morality and justice is reaffirmed by Hans Kelsen, who asserts that in determining what constitutes law, the question of the law’s goodness or badness must be completely discarded. He argued that the law must be devoid of extraneous and metaphysical influences such as morality, ethics, politics, and justice. The term ‘marital rape’ is not officially defined in Malaysia’s Penal Code. In Malaysia, Section 375 does not apply to rape in marriage. The government amended the Penal Code by adding a new Section 375A, which specifies that any husband who threatens or injures his wife in order to have sex shall face a prison sentence of up to five years. However, Section 375A of the Penal Code does not entirely acknowledge rape. Rape can occur without ‘causing harm’. For instance, when a husband engages in sexual intercourse by coercion or intoxication. The legislative provision is insufficient since it fails to clarify the essential concept of consent adequately. Marital rape, according to positivist legal theory, is not a crime and is legal in Malaysia. This is because legal positivists believe that a sovereign’s law is absolute and does not allow for subjective consideration. Additionally, positivists disregard whether a law is just or unjust, or whether it is moral or immoral. Therefore, even if marital rape is an unethical conduct that causes grave harm to the victim, it is not a crime because the government has not criminalised it.

In contrast, natural justice begins with the idea that law is motivated by morality and is thus influenced by it. Historically, the natural law theory has associated law with religion and an underlying sense of justice, as opposed to the more utilitarian approaches taken by certain other schools. William Blackstone argues in favour of the natural law theory, claiming that natural law is a divine order. This means that it is universally binding and emphasises the need of no human law contradicting God’s instruction, or else it will not be regarded as law. Marital rape is claimed to be permissible under Shariah law in Malaysia. Although this is more likely to be a misinterpretation of religious law by some people. The majority of individuals in this country are unaware that marital rape is unIslamic and goes against the religion’s values. It is explicitly stated in the Al-Quran in Surah Al Ruum, verse 21 that, “As a religion which genuinely values women, in Islam, husband and wife relationship is based on love and mutual respect,” and “And His signs is that He made mates for you from yourselves, that you may find serenity in them; and He placed compassion and mercy between you”. Islam recognises equal rights for husbands and women in marriage and sexual interactions, as stated in An-Nisa verse 19 that men should "live with them in kindness”. Mufti of Perlis, Dr Mohd Asri, or Dr Maza as he is more often known on social media, emphasised that husbands are required to comply with their wives in initiating intimate contact under Islam. On the other hand, the wife must do the same for her husband. If either party prohibits sex without a justifiable reason, they will be in breach of their husband or wife duties. Despite the duty to meet each other’s sexual demands, Dr Mohd Asri emphasised that neither party should be harmed in the bedroom. He further quoted Surah An-Nisa verse 19 which commands men to treat their women with love by saying that sexual relations between husband and wife should be conducted in a loving manner and they should not do harm to one another. Hence, it is completely untrue to assert that marital rape is not forbidden because shariah and other religious rules permit it. No religion in the world condones a woman enduring physical or psychological misery. From a naturalist perspective, it is obvious that marital rape is abhorrent and should be treated as a crime. This is because marital rape violates religious law and God’s command. Marital rape is likewise immoral and contradicts naturalism.

The concern here is why husbands who sexually assaulted their spouses and get away with it are granted protection? Why is it so difficult to enact legislation to protect women from abusers within the confines of their own homes? Once marital rape is deemed illegal, a strong message is sent that all rape, whether committed within or outside of a marriage, is inherently wrong and unacceptable in any community. While positivists tolerate marital rape, it must be remembered that they did not consider morality. To create a peaceful community, the law that is adopted must take morality and justice into account. The government must criminalise marital rape and regard it as a type of prejudice against women and men, as it manifestly violates moral standards. Notwithstanding the government’s contention that marital rape is ‘extremely difficult to establish’, rape is rape, regardless of whether it occurs within or outside the framework of marriage.

By Nurul Wahida Shariful Azhar & Dr. Nabeel Mahdi Althabhawi. Faculty of Law, National University of Malaysia.

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