COMMENT | Petaling Jaya MP Maria Chin Abdullah worries that Deputy Minister in the Prime Minister’s Department Hanipa Maidin dismissal of the criminalisation of marital rape - because it is difficult to prove - could be “misinterpreted” that the government takes the issue lightly and has no intention of criminalising marital rape.

Here is the thing though, if the government took marital rape seriously, they would not dismiss it on the grounds that it was difficult to prove. I cannot believe that a seasoned activist like Maria Chin, who no doubt has witnessed the Malaysian criminal justice system up close, does not understand that rape in Malaysia – and elsewhere – is difficult to prove.

In Malaysia, it is made worse by the diktats of religious extremists who not only control the discourse but also legislation. And yes, when the government says it has no intention of criminalising marital rape, there is no room for misinterpretation when it comes to the intention of the state.

While Perak amends its laws to make polygamy easier (another goal for team patriarchy, I guess), the federal government is dismissing rape survivors because the crime is difficult to prove, or so they say. And marital rape is rape.

Maria is correct when she points out that the exception under Section 375 of the Penal Code is not legislation that deems marital rape a crime, and this of course was the position of the former Umno regime. Then Minister in the Prime Minister's Department Nancy Shukri stated that - “The provision with regard to Section 375 that intercourse between a legally married couple continues to remain in force and cannot be considered as rape.”

Some of you no doubt would have taken offence at what Hanipa said, but really this is just the narrative of mainstream sexual politics in this country. Besides, Seputeh MP Teresa Kok has said the same thing in 2017 when she was part of a bipartisan committee, Select Committee on the Review of the Penal Code and Criminal Procedure Code.

“How are you going to prove that it is marital rape? This is very difficult to describe and argue in court and that’s why we put it the way it is under 375A, where the jail term can come up to five years. In a way, it covers incidents of violence, including marital rape.” Which is, of course, horse manure because as Maria pointed out (emphasis mine) - All this means that it is not a crime for a husband to rape a wife unless the husband causes injury when intending to have sexual intercourse.

Think about it this way. This line of reasoning would mean that rape is not a crime unless some sort of violence has been part of the process. Is this what the government is saying when it comes to rape, or is the issue that a marriage because of the husband’s rights – which is normally grounded in some form of religious dogma – means that sex without the wife’s consent is perfectly acceptable? Is this the sexual politics of new Malaysia, or as I like to refer to it, neo Malaysia?

Even more toxic

Of course, it gets much more toxic. Kok made the following points last year when it came to the issue of marital rape –

(1) “If you want to translate it into the Malay language, for example, you have to face the mullahs and explain to them what exactly you mean by marital rape.” This may have carried some weight when opposition MPs like Kok were dealing with the Umno regime, but why should this be the case now? Look, in a letter published by Malaysiakini authored by Zarizana Abdul Aziz of Women's Aid Organisation (WAO), the words of Perak mufti Dr Harussani Zakaria were referenced – “... the subject of marital rape, when a husband forces a wife to have sex against her will, is relevant only to non-Muslims' adding that 'Islamic law is adequate to check a husband's abuses' as a Muslim wife can turn to Syariah Court if she is treated cruelly and demand a divorce under a procedure called 'fasakh'.”

So I understand where Kok is coming from, but the reality is now Harapan is the government and should be defining the Islamic discourse. This is what they promised voters who voted for them. If there is no difference between the way how Harapan deals with the religious bureaucracy and the way how Umno did, then what is the point of this new Malaysia?

Furthermore, I will argue (and have) that the Umno regime had no problem defining the Islamic discourse by fiat, at times going against the religious bureaucracy, so Harapan should discover its cajones and do the same.

(2) “She (Teresa Kok) noted that the term ‘marital rape’ was usually used in discussions of issues in which the crux of the problem was the difficulty for women to divorce their husbands. She said this was something that should be addressed.” Really? Three years ago, the WAO, stated in a report 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.”

From the same article, a survivor’s perspective and the indifference of the state security apparatus – “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.”

Funnily enough, Kok (last year) encouraged activists to continue highlighting these kinds of issues “The media and NGOs must continue to work together and highlight problems faced by women because there are still many cases of domestic violence and abuse.” So it may seem comforting that we have a prominent activist now turned politician like Maria Chin bringing this issue to the public, but what is the point? The narrative is the same and anything someone like Maria’s says sounds like establishment apologia.