Brunei: Marital Rape - Analysis of Current Laws

Publication Date: 
August 13, 2010
The Brunei Times
Protection against sexual assault may be possible with amendments made to the Islamic Family Law and Married Woman Act Orders

Marital rape: Are women protected from it?  Although marital rape is not included in the current Penal Code, however, protection against sexual assault may be possible with the amendments made to the Islamic Family Law Order 2010 and Married Women Act Order 2010.

There have been complaints of forced sexual intercourse by women against their husbands to the police in the past, but these complaints are usually unattended as there is no law against marital rape in Brunei.

In 2007, Malaysia made amendments to its Section 375 of its Penal Code, making forced sexual intercourse on a woman by her spouse a crime and last year, the first case prosecuted under the new law which saw the conviction of a man and his imprisonment for five years.

Brunei's Attorney General's Chambers said it currently has no plans to amend Section 375 of the Penal Code, which states that sexual intercourse by a man with his own wife, the wife not being under 13 years of age, is not rape.

A Royal Brunei Police Force officer said they were unable to take any action when someone reports rape by their spouse, as the law does not permit it.

No official figures were disclosed on how many complaints were received.

However, protection against sexual assault may be possible with the amendments made to the Islamic Family Law Order 2010 and Married Women Act Order 2010.

Sexual assault falls under the definitions of dharar Syar'ie and "domestic violence" in the two orders respectively. 

The orders state that causing hurt to a family member by such act which would result in injury or compel the family member by force or threat to engage in any act, from which he or she has a right to abstain, falls under the definition of dharar Syar'ie and "domestic violence".

For example, if a woman was forced to have anal intercourse by her spouse, the woman could apply for a protection order from her spouse. Additionally, the husband could also be charged under Section 377 of the Penal Code for Unnatural Offences.

However, if forced vaginal intercourse occurred a woman may only be able to obtain a protection order if she can prove that she was physically or psychologically hurt in the process.

One can be protected against further harm under the Islamic Family Law Order 2010 and Married Women Act Order 2010, and the penalty for breaching the protection order is a fine not exceeding $2,000 or imprisonment not exceeding six months, or both.

The court may also award compensation to a victim taking into account the pain and suffering of the victim, and the nature and extent of the physical and mental injury suffered.

The punishment is less severe than the punishment for rape, which is imprisonment for not less than eight years and not more than 30 years and also whipping with not less than 12 strokes.

Singapore has also made amendments to its Penal Code. Their law states that no man shall be guilty of an offence against his wife, who is not under 13 years of age, except where there was an injunction, a court order or the spouses were living apart.

However, this law has come under criticism; in Singapore it has been argued that the law only protects women who have filed for a divorce or applied for a protection order from the court.

Malaysia's amendment has also come under scrutiny, even though the amendment to the penal code that made marital rape a crime was considered a small step toward women's rights in the conservative Muslim-majority country.

It was reported by the Associated Press that some activists said it did not go far enough because the law does not stipulate a minimum sentence, which means a man could go to jail for as little as a day even if convicted.

Critics also say that the crime being punished is not rape because the Act calls it sexual intercourse and cases are only prosecuted under the Magistrates' Court.

In a paper entitled "Marital Rape: New Research and Directions" by the National Online Resource Centre on Violence Against Women, it says, "Despite the myth that has historically existed that rape by one's partner is a relatively insignificant event causing little trauma, research indicates that marital rape often has severe and long-lasting consequences for women".

It added: "Given that women who are raped by their partners are likely to experience multiple assaults, completed sexual attacks, and that they are raped by someone whom they once presumably loved and trusted, it is not surprising that marital rape survivors seem to suffer severe and long-term psychological consequences."