English - CEDAW Southeast Asia

CEDAW and the Law:
In relation to marital rape, the provisions above do not identify whether the offender and
victim are married to each other. However, in practice, the absence of an express prohibition
against marital rape only serves to show the lack of recognition given to this form of violence
as rape. In many cases, it is deemed absurd that a husband can be charged for raping his wife.
Recommendation: The provisions on rape and other forms of sexual assault
(Articles 111-116 of the Penal Code) must be revised to include a prohibition of a range
of sexual acts, including the following: (a) inserting a penis into a mouth or anal orifice;
and (b) inserting an instrument or object into the genital or anal orifice of another person.
Marital rape and the commission of obscene acts committed against adults must
also be explicitly penalized.
Indicator 24(e)
Is prosecution for rape and/or other forms of sexual assault
only possi ble if consented to by the victim Is prosecution
for rape and/or other forms of sexual assault discontinued
if the victim withdraws the complaint, forgives the alleged
perpetrator or ma ries the alleged perpetrator
See Part V.1.3.3, Indicator 10.
Indicator 24(f)
Indicator 24(g)
Indicator 24(h)
Is there prohibition on the use of prior sexual conduct to
establish consent to sexual acts
What is the degree of resistance required to establish a
finding of rape or sexual assault
Is there a requirement of corroboration to prosecute cases
of rape and/or other forms of sexual assault
There is no prohibition on the use of prior sexual conduct to establish consent to sexual
acts. In many cases, this kind of evidence is presented to stigmatize the victim and destroy her
reputation. For example, the defence would present evidence to show that, since a woman has
a ‘loose reputation’ when a man rapes her it is excusable, or since the victim is engages in prostitution,
even when she resists, she is deemed to have consented by being engaged in such
occupation. The crimes in Articles 111-116 of the Penal Code are based on whether consent was
given to the specific act that constitutes the crime, and not past acts, opinions or reputation.
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Recommendation: In prosecutions for rape, rape against children, forcible sexual
intercourse and forcible intercourse with children (Articles 111-114 of the Penal
Code), evidence of the victim’s past sexual conduct, opinions or reputation must not be
admitted by the courts as evidence; that is, they are inadmissible. This kind of evidence
is irrelevant to the crime. Prior sexual conduct or reputation is not a guarantee
or expression of consent to sexual intercourse. This should be in a legal document to
provide guidance in the handling of these cases and to operate as a right of the victim.
There are also no provisions in law relating to degree of resistance required to prosecute
rape. It must be emphasized that, for rape to exist, it is not necessary that the force or
intimidation be so great that it cannot be resisted. What is important is that the force or intimidation
is sufficient to accomplish the rape. In particular jurisdictions, resistance to rape must
be so great so as to produce severe physical injuries. Physical injury is not the only evidence
of resistance to a rape. Peculiarities of each situation must be borne in mind in assessing
Review of key legal documents and compliance with CEDAW