Rape of his wife case
The central question is whether Y can be convicted of rape against his wife. This gives rise to two issues, namely (1) whether the marriage between X and Y was void and therefore the husband would not have enjoyed the marital exemption from rape, and (2) whether the sexually transmitted disease (STD) would negate this consent.
Y is guilty of rape if the marriage was void ab initio; he would have never qualified for the marital exemption from rape. In the present case, this depends mainly on X’s age at the time of marriage.
If X had been underage, Y would be guilty of rape because the marriage would have been void ab initio. The STD would also negate this consent and aggravate the crime.
Conversely, if X had been of age, Y would not be guilty of rape because he would have qualified for the marital rape exemption. The STD would not go against the consent because of parliamentary intention and the availability of a recourse.
The complainant is X, a PRC citizen by birth. She came into Singapore on 21 May 2007 and underwent a civil marriage on 15 August 2007 with written consent from X’s parents.
X’s parents made a statutory declaration to both Singapore and Henan authorities that X’s birth certificate is lost and that her date of birth was 18 September 1988. However, X later found her birth certificate which recorded her date of birth as 18 September 1989. If the certificate is genuine, she would have been less than 18 years old on the day of the marriage.
On their wedding night, Y attempted to have sex with X but did not because X wet the bed. He did not make any further attempts until May 2010. One night, Y, being stronger than X, held her down and penetrated her. Subsequently, Y revealed that he had “a disease", and then forced himself on X a second time. Later investigations revealed that the disease is sexually transmittable and harmful to health.
Rape is an offence under the Penal Code (Cap. 224, 2008 Rev. Ed. Sing.) [Code], s. 375.
Whether Their Marriage is Void Depends on Age of X at Time of Marriage
Should X be proven to be underage at the time of marriage, the marriage will be void, with the effect that Y will be guilty of rape. Conversely, if X is of age at the time of marriage, the marriage will be valid and, with the exemption from marital rape, the husband will not be guilty of rape.
In the Code, s. 375(4). provides for an exemption for marital rape, regardless of consent. How then, is “wife" defined? While the Interpretation Act (Cap. 1, 2002 Rev. Ed. Sing.). defines “monogamous marriage", the Women’s Charter (Cap. 353, 1997 Rev. Ed. Sing.) [Charter]., the statute for which marriage is provided does not explicitly define marriage. However, the Charter, s. 9. specifically provides that a “marriage solemnized… between persons either of whom is below the age of 18 years shall be void unless the solemnization of the marriage was authorised by a special marriage licence granted by the Minister".
The Law on Void Marriages and the Exemption to Marital Rape
The effect of a void marriage is as if the marriage did not exist ab initio. No legal action is required as described in the Charter, s. 7. The ab initio part is explained by Lord Greene M.R. in De Reneville v. De Reneville (1947),  1 All E.R. 56 (C.A.) at 60. that such a marriage will “be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place". This explanation was agreed by Judith Prakash J in Tan Ah Thee v. Lim Soo Foong,  SGHC 101 at . This must necessarily mean that since there is no marriage in law, the marital rape exemption fails and the “husband" would be guilty of rape. Looking towards India, where the Indian Penal Code 1860, s. 375. is in pari materia with the Code, this view is also seen in the case of Queen-Empress v. Huree Mohun Mythee (1890) 18 Cal. 49, cited in Tan Cheng Han, “Marital Rape – Removing the Husband’s Legal Immunity" (1989) 31 Mal. L. Rev. 112 [Tan, “Marital Rape"] at 119. that the difference in age is the “hard-and-fast rule as to what constitutes criminality in the husband" regarding marital rape.
In addition, the parliamentary debates (Sing., Parliamentary Debates, vol. 83, col. 2175 at 2192 (22 October 2007)). show clearly that it is the intention of Parliament in partially retaining instead of abolishing the marital rape exemption in the Code regarding the Penal Code (Cap. 224, 1985 Rev. Ed. Sing.), s. 375 as am. by Penal Code (Amendment) Act 2007, No. 51 of 2007 [Amendment], s. 68. The debates included Professors Leong Wai Kum and Debbie Ong practical suggestion to expand the “circumstances under which the wife’s consent to the husband’s conjugal rights may be deemed withdrawn". Indeed, the amended Code, s. 374(4). withdraws the marital rape exemption in a few new limited scopes.
In applying this rule to the facts, it is of note that X and Y did not possess such a licence. Given that it is not clear on the facts regarding the age of X at the time of the marriage, it is necessary to examine the scenario of if X is underage and of age.
In the present case it is clear that should X’s birth certificate be found to genuine, her real age at time of marriage would be under 18 years. Since the marriage would be void and the marital rape exemption does not apply, Y would be guilty of rape. In the South African case of R v. Mane (1947),  1 S. Afr. L.R. [Mane]., the husband was liable for rape because the marriage was void. Although in Singapore the lack of consent to marriage only results in a voidable, rather than void, marriage, Mane shows also that the effect of the void marriage would result in Y being liable for rape.
However, there is potential unfairness if the “husband" did know that the marriage was void. A possible defence considered and immediately rebutted in Chan Wing Cheong, Penal Code (Amendment) Act 2007: Rape Within Marriage  S.J.L.S. 257 [Chan, “Rape Within Marriage"] at 267. is that of mistake; but mistake would fail because it “will be a mistake of law, not of fact". Even Sir Matthew Hale who stated the marital rape exemption had suggested in Sir Matthew Hale, History of the Pleas of the Crown, vol. I (London: E. and R. Nutt and R. Gosling: 1736) at 629, cited in Chan, “Rape Within Marriage" at 268. that the marriage once declared void would not impede the prosecution of the crime “as if there had been no marriage at all".
Hence, if X is underage, Y will be guilty of rape.
If Of Age
Applying this rule to the present case, should X be of age, the marriage would be valid and there would be an exemption from marital rape for Y. This is similar to the case of Public Prosecutor v. N,  SGHC 255,  3 Sing. L.R. (R.) 499 [N]. where the Singapore Court of Appeal could not hold the husband guilty of rape. Even if the Code after the Amendment was to be applied to this case, there would be no change in liability because N’s wife had yet to commence the legal actions which would withdraw her consent to sex under the Code, s. 375(4).
However, one may feel a deep sense of unfairness towards the wife and indeed, in many other jurisdictions, the marital rape exemption no longer exists. This question cannot unfortunately is not for the courts to decide. It is Parliament’s view to balance the protection of the wife and the institution of marriage.
Hence, if X is of age, Y will not be guilty of rape.
Whether the Consent Can be Negated by Disease
Endangering health and causing harm in the form of a disease is unlawful but there is recourse available under the Code, s. 375(4)(d). in that a protection order must be first made against the husband. Therefore, if the marriage is not void, the marital rape exemption still applies, while disease will be considered aggravating for non-marital rape.
The Charter, s.64-67. protects the family from “family violence", which, as defined in the Charter, s. 64. includes hurt which “means bodily pain, disease or infirmity". This is directly relevant in this discussion of an STD. Does the presence of an STD automatically mean that a wife could have been implied to withdraw her consent to sex? In R v. Clarence (1888), 22 Q.B.D. 23 [Clarence]., the answer was no.
Although one of the judges Hawkins J said that while sex in marriage is lawful, such sex “with infectious contagion endangering health and causing harm" is unlawful and therefore, a husband “must either forgo his privilege or take the consequences of his unlawful conduct". This follows Popkin v. Popkin (1764) 1 Hagg. Eccl., cited in Tan at 114. in that “the husband has a right to the person of his wife but not if her health is endangered". Actual communication of the disease is not even required as seen in Foster v Foster  1 P 438.
Despite this development in English law, in the Singapore context, parliamentary debates already make it clear that the purpose is “certainty and no second-guessing" regarding a man’s marital rape exemption ((Sing., Parliamentary Debates, vol. 83, col. 2175 at 2192 (22 October 2007)).). The disease would be likely to qualify for a protection order under the Charter, s. 65.
STD and Y
Therefore, it is likely that the marital rape exemption still applies to Y despite the STD.
In cases not involving marital rape, then there is no obstacle for the courts to follow the arguments that health concerns can negate consent to sex. This is because disease endangers health and causes harm, as explained by Hawkins J in Clarence. In the case of Public Prosecutor v. Pok Raymond,  SGHC 18 at 40., causing a woman to suffer from an STD “aggravates the crime". This was also seen in Malaysia in the case of Mohamed Kunju v. Public Prosecutor  1 M.L.J. 271 (Federal Court of Malaysia). where “no leniency could be shown" for the STD infection.
Therefore, if Y is found to be guilty of rape, in the non-marital context, the STD would “aggravate the crime".
The discussion proceeded on two issues, of whether the marriage was valid or void, and whether the presence of the disease would affect the charge on rape.
Y would be guilty of rape only if the marriage was void, and the disease would then aggravate the crime.
However, even though Y would not be guilty if the marriage was valid, it is of note that there are likely to be charges for assault because it was held in Chia Kim Heng Frederick v. Public Prosecutor,  SGCA 6,  1 Sing. L.R. (R.) 63 at . that “sexual intercourse with a woman against her will must by its very act contain an element of violence".