Police treated gay man like a paedophile

At first sight, it may seem to many people to be a one-off incident and there may even be the attitude that "the guy deserved what he got".

Few details have been published, but what has been raises a very troubling question of police ethics. For background, see the Straits Times story, Police told employer about man's arrest

The simple facts are these:

One evening in September 2003 Paul Fernandez met up with another guy at a coffeeshop in the Little India district. By implicit agreement, they went up to the 17th floor of a block of flats nearby and became sexually intimate in the stairway.

The story gets a bit confused here, but Fernandez' version of it was that the other party then turned aggressive and took his wallet. Fernandez did not flee as he wanted to get at least the wallet and his cards back. At some point, according to Fernandez, it was he himself who called the police.

At the police station, Fernandez lodged a complaint of robbery, but a complaint of homosex was also lodged against him. The investigation proceeded slowly.

In July 2004, Fernandez took on a new job as a part-time teacher to mentally-handicapped children at the Centre for Exceptional Children (CEC), which was an offshoot of Newmark Training Centre, that teaches related courses. Fernandez attended courses there too.

In October 2004, the police finally closed the file on the September 2003 incident. As can be seen in the Straits Times report, the police had been advised by the Attorney-General's Chambers not to prosecute. Instead they gave Fernandez a warning.

Almost immediately, the police sent a letter to CEC. Fernandez was called into a meeting with his supervisor, Noel Chia, wherein he learnt that the police had advised the school to "take precautions". From that point on, the relationship between Fernandez and his superiors at CEC and Newmark deteriorated. 

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This essay is not about Fernandez' relationship with his employer, but takes a closer look at what the police did.

The first essential question is what motivated the police to inform the employer? The story suggests that they acted as if Fernandez was a sexual offender and a threat to society, and took it upon themselves to inform those with whom Fernandez might interact. This would be similar to jurisdictions where a sexual offenders' register is maintained.

However, in countries that have legislated such a register, it has proven controversial. A very basic criticism is that it effectively subjects the offender to double punishment: First the judicial sentence meted out by the court, then secondly by public humiliation and ostracism even after he has completed his sentence.

As a result, many jurisdictions have been careful to institute due process before anyone is listed on the register and the basis for listing any name on it has to be that of probable future threat to others in the community, carefully distinguished from past offence. That is to say, a record of a sexual crime alone is not reason enough to put someone on the register. The authorities have to show that there is a reasonable risk of this person being a threat to others after serving his sentence, and very often an application must be made to an independent authority, e.g. a judge, before a name can be put onto the register.

The case of Paul Fernandez fails to meet these conditions.

In the first place, he was not charged in court, let alone found guilty. The police said he was arrested for committing a gross indecency, but the Attorney-General's Chambers advised against prosecution. To spare himself further inconvenience, Fernandez accepted the police warning, which anyone of us might, if we were in the same position.

What is the legal standing of a police warning? The police seem to believe that it proves guilt. It cannot be. No one should be considered guilty without due process. In any case, according to a lawyer friend of mine, the Courts have ruled that a police warning is not to be treated as an antecedent in Court for sentencing. Thus, it is not a record of conviction.

Fernandez was not found guilty of a sex offence. He might have been arrested on the suspicion of one, but it would be a sad day if we all went around believing that if someone is suspected or arrested, he must surely be guilty. Such an attitude indicates excessive deference to authority – "if they have rank, they must perforce be right" – and is corrosive of justice and democracy.

That the police is behaving in a manner that abrogates to themselves the roles of prosecutor, judge and jury, should ring warning bells for us all.

On another level, even if someone had been found guilty of gross indecency, would he be a serious enough threat to others in the community, to justify us acting as if he ought to belong on a sexual offenders register?

The incident in the stairwell was consensual and the other party was an adult – probably the very conditions that led the Attorney-General's Chambers to advise against prosecution.

Most of us contravene some sex law or other each time we have sex, because our sex laws are so antiquated. Each time we have oral sex with our legally married spouses in our marital bed, each time we use a dildo or other toys, each time we fancy a bit of porn to stimulate our appetites, or engage in some heavy petting in the backseat of a car because we have nowhere else to go, we contravene some law or other. We are all sexual offenders.

The only thing that saves us is the State's reluctance to prosecute such cases, which puts us in the same legal limbo as Fernandez.

Supposing we get arrested for bringing in a bit of pornography, supposing we get arrested because a constable shines his torch into our car, does that make us sexual offenders at once? Does that mean that the police may inform our employers insinuating that we're some kind of predator?

As Fernandez said to the Straits Times, he might be gay, but that did not make him a paedophile. He was arrested because he was having consensual sexual contact with another adult male in a staircase to which the public might have access. 

Such sexual behaviour may well be called a "sexual offence", but it wasn't an attack on a victim; it was merely an act contrary to some archaic notion of morality.

Has anyone suggested that Fernandez imposes himself sexually on other adults against their will? No. 

Has anyone suggested that Fernandez takes a sexual fancy to the underaged? No.

Has Fernandez been convicted of any sexual crime at all? No. 

So why is the police behaving as if he is some kind of sexual predator?

It's an extraordinary and inexcusable leap of logic from the starting point of an arrest (but no prosecution) for a consensual sex act with another adult, to the endpoint of treating him like a potential and convicted child-molester.

If an opposite-sex couple (let's assume both are schoolteachers) were heavily petting on a bench in a deserted park, but chanced upon by a patrolman and taken to the police station (after which the case went no further), would you think it fair to inform their respective schools with a warning to "take precautions" to protect the children? Should these two teachers lose their jobs?

Of course, it would be absurd. So why did the police think it was the right thing to do in Fernandez' case?

It's easy for us to read his story and think it doesn't much concern us. When our authorities display such lazy-mindedness and abuse their powers, it most certainly does.

© Yawning Bread 

Footnotes

1. See also the article Small slip, big prejudice

Addenda

1. See follow-up tale Divine retribution