March 6th, 2012

Parliament Primer: A strike against victim-blaming

The following is an excerpt of the debate on the repeal of Section 157(d) of the Evidence Act and the issue of marital rape during the February 14 sitting of Parliament.

K Shanmugam
Law Minister; Foreign Affairs Minister; Member of Parliament for Nee Soon GRC

Section 157(d) of the Evidence Act provides that the credit of the victim in a rape or attempted rape case may be impeached by showing that she is of generally immoral character.

This provision has existed since 1872. It is premised on antediluvian assumptions that a sexually active woman is less worthy of credit. It gives an opening for sexual assault victims to be
subjected to gratuitous, traumatising and insulting cross-examination.

The Office for Women’s Development under the Ministry of Community Development, Youth and Sports had given us feedback that this amendment ought to be made. Likewise, AWARE also gave us feedback that this provision ought to be deleted, by making this amendment. When the amendment is made, any cross-examination of a sexual assault victim must proceed on the basis of relevance. I thank both MCYS and AWARE for raising this issue with us and helping us on this particular issue.

Lina Chiam
People’s Party’s Non-Constituency Member of Parliament

I commend the repeal of section 157, paragraph (d), in which the sexual history of victims of sexual assault and rape may be used against them in court. This move is long overdue. Blaming a victim is not merely an outdated concept that only “chaste” women should be afforded legal protection, but it was simply bad law. A crime should be redressed simply because it is a crime.

 

 

Desmond Lee
Member of Parliament for Jurong GRC

I note that the transitional provision in Clause 23 retains this rule for cases that are started or pending before the date of commencement of the provision that abolishes the rule. As this is a rule of procedure, and an archaic one at that, would the Minister consider implementing this retrospectively to the date this Bill is enacted in Parliament as opposed to the date that the provision is brought into force in the future?

 

 

Vikram Nair
Member of Parliament for Sembawang GRC

I would like to address the abolition of section 157(d) of the Evidence Act. I was quite heartened that support for this has been almost unanimous, especially from the men in the House, and I think that is quite right.

This is essentially the section that actually goes against the grain of allowing more evidence because the abolition of this section means that people who are accused of rape would not be allowed to impinge the character of the accuser. The reason why I think it is all right to allow less evidence in this particular section is because it protects the victim.

More often than not, victims of rape would be reluctant to come forward anyway, and having their entire previous sexual history brought up in court would definitely be an even greater deterrent. Removing this rule is quite timely and it is definitely a move in the right direction.

Since everyone here is unanimous that rape victims should be protected, I am flagging the abolition of Section 375(4) of the Penal Code hopefully for consideration by this House at a future date. I understand that that would probably come under the Ministry of Home Affairs rather than the Ministry of Law. I am just flagging that.

This section is commonly known as the marital immunity to rape. What that means is that if a man were to commit sexual violence – I would not use the word “rape” because it is not rape – on a woman without her consent, and they happen to be married, then that is an absolute defence.

There are some limitations now. The law has been cut back so that if the couple are separated, that is no longer a defence. But the fundamental rule is still there.

I think the main reason for abolishing this rule is that violence against women, non-consensual sex, is really the same, whether or not that happens in marriage or outside marriage. By abolishing the rule though, what we actually do is we basically say that violent sex against women, even in the confines of marriage, is unacceptable.

I understand that this is a controversial issue. One of my good friends was actually behind the No To Rape campaign, which was a campaign against the section, and I was myself a little bit sceptical at first. So let me maybe deal with some of the arguments that the sceptics of abolishing the rule might bring up.

I think the chief concern they could have is that there might be an increase in the number of false cries of rape, that when a marriage goes wrong, the woman might make a false allegation of rape. But I think the answer to this is that false allegations of rape are punishable anyway, and if that is the real mischief we are concerned about, then perhaps we should either enforce those rules tighter or perhaps make stricter rules against that.

But that is not a reason to not offer protection to women who are married. I think it is possible to deal with that particular concern.

I understand that this is a controversial issue and it is not before the House today, and there are probably other arguments as well, including what the duties of parties in a marriage are. But I will just leave that on people’s minds for a future date.

K Shanmugam

On credit of rape victims in Section 157(d): I think that is generally welcomed by all Members. What would happen as a result of the amendment is not that previous history would automatically be inadmissible but rather it is left to the courts to decide when it should be admissible. That depends on issue of relevance. It is just that we should not legislatively provide that certain issues will be relevant.

On the issue of marital rape: I think that issue falls outside the purview of the present rule, as Mr Nair himself recognised. That has got to be dealt with by the Ministry of Home Affairs. What I can say is when I was wearing that hat, the NGO No To Rape saw me as well. I found many of the arguments they put forward worth looking into. They made good points. I will certainly pass over Mr Nair’s comments to the Ministry of Home Affairs.

Read the debate in full here.

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