Yawning Bread. 23 December 2009

Stone-age sex law hidden in plain sight


    

 

 

This is gender discrimination pure and simple. However, I expect very few in Singapore to have noticed it even as this report is published right before our eyes in the Straits Times.

It's a story about a teenage boy having sex with teenage girls. The discrimination is operating at both the level of the law and that of the media. In the case of the latter, what the news story does is to first condemn the boy as a recalcitrant criminal and then describe the additional "crime" he is accused of. How many readers, I wonder, would be able to see that the prior "crime" itself is problematic, let alone the current one for which he is being accused. More likely, the uncritical reader would go with the flow of the prose and see an unreformed boy preying on more girls.

But is that a fair characterisation of the situation?

23 December 2009
Straits Times

Teen on probation had sex with 2 underage girls 
By Elena Chong

A teenager had sex with two underage girls while he was on probation for a similar offence.

Lloyd Khoo admitted on Monday to having oral and consensual sex with a 15-year-old girl at a flat in Choa Chu Kang in March, as well as having sex with another 15-year-old girl the following month.

Now 16, he was 15 at the time of the offences, which came to light in May when the mother of the first victim found a text message in her daughter's mobile phone.

The message addressed the girl as the sender's 'wife'.

When the mother confronted her daughter, the girl admitted that she had had sex with Khoo, as well as with several other teenagers.

The victim reported to the police on May 24 that she had had sex with five teenagers on different occasions.

Khoo was placed under 15 months' probation early last year for having sex with another girl under the age of 16.

He was still under probation when he committed a total of six sexual offences between March and April.

A Community Court heard that shortly after the first of his new victims got to know Khoo through social networking website Tagged in March, he went to her home and asked her to perform oral sex on him. On another occasion, they had consensual sex.

The second victim, who got to know Khoo through a friend last year, skipped school one day in April and met Khoo at an LRT station.

He took her to his flat in Choa Chu Kang and they had sex after watching cartoon videos.

Khoo, who said he was sorry, will be sentenced on Jan 11, pending probation and reformative training reports.

The maximum penalty for each offence is a jail term of up to 10 years and/or a fine.

 

While the news story does not say so, my guess is that the charge that the boy is faced with is one under Section 376A of the Penal Code.

Let me paraphrase the story. A boy, then aged 15, had sex with two girls aged 15. The sexual encounters are described as consensual -- one girl even skipping school to make the tryst. The boy is charged and faces up to 10 years in jail. There is no mention of the girls being charged.

Previously, the same boy, who would then be either 14 or 15, had had sex with a girl "under the age of 16". He was put under probation; no word of any penalty for that girl. One assumes she was not charged.

To top it all, the Straits Times uses the word "victim" to describe one of the consenting females. The boy was named in the article while the girls were not, presumably to protect their reputations.

These are very bad decisions by the Attorney-General's Chambers and by the Straits Times. They perpetuate an archaic notion of females as innocent, helpless, asexual creatures, incapable of autonomy. Any sex that occurs must be an aggressive defilement of female purity, by males who are deemed predators simply on account of their sex. 

We still see male-female relationships in stone-age terms.

The net effect of such prosecutions (and reporting) is to inflict an injustice on male teenagers that flies against our understanding of gender equality and human rights.

Would AWARE, the feminist group so keen on gender equality, be taking this up as an issue, I wonder?

* * * * *

 
It so happens that a similar case is taking place in Ireland, with the difference that there, at least some people see the injustice of it. Defence lawyers don't just roll over, advise their clients to plead guilty and merely make an appearance for mitigation. The Irish lawyers are mounting a challenge against the State on the ground of discrimination, with the possibility of the case going all the way to the European Court of Human Rights.

Here is the story from the Irish Times:

17 December 2009
The Irish Times 

Underage sex law has gender bias, court told

A "so-called Romeo and Juliet" law permitting prosecution of a boy over allegedly having sex with a 14-year-old girl when he was aged 15 is "crude and old-fashioned" gender-based discrimination, it was claimed before the High Court yesterday.

The Oireachtas [1] had justified the law on the basis of a "patronising view" that girls must be protected from boys who are the guilty parties, Gerard Hogan argued yesterday when opening the boys challenge to the 2006 law.

The applicant, now aged 18, claims his right to equal treatment under the Constitution and European Convention on Human Rights has been breached because he has been charged with unlawful carnal knowledge and buggery, while the girl cannot be charged at all.

The law in question is the Criminal Law (Sexual Offences) Act 2006.

Section 3 of this law ("Defilement of child under the age of 17 years") makes it an offence for "Any person who engages in a sexual act with a child who is under the age of 17 years". The penalty is up to 5 years' imprisonment, higher if there are aggravating circumstances or if it is a repeat offence.

On the face of it, the phrasing is gender-neutral, but the same law's Section 5 says "A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse." For this reason, the boy's consenting female partner was not charged.

The 2006 law provides a girl under 17 cannot be prosecuted for unlawful carnal knowledge while a boy can, and the boy claims he is being discriminated against on grounds of gender.

The trial of the boy is on hold pending the outcome of the High Court case brought against Ireland, the Attorney General and the DPP, who deny the claims.

The boy is charged under Section 3 of the 2006 Act with committing the offences against the girl on August 5th, 2006.

Opening the case yesterday, Mr Hogan argued that central to the 2006 law was that the "boy alone" commits the offence while the girl enjoys "complete immunity". This law was based on a "crude" traditional sexual stereotype and was "a good old-fashioned example of gender-based discrimination for which there is no objective justification".

Referring to the "so-called Romeo and Juliet provision" of the 2006 Act, counsel said that this "is not the age of Shakespeare" but 400 years on, and society was still faced with this "nakedly gender-based legislation".

-- ibid

The justification for this kind of discrimination seems to be that girls risk getting pregnant from sexual intercourse, and that risk is terrible enough to excuse them from legal penalty.

The State took the view that girls should not be charged because the penalty for them was the possibility of pregnancy, counsel said. While this was to be the deterrent for girls, there was no comparison between this and the shame, ignominy and other "savage" consequences for a young man facing imprisonment for up to five years if convicted of a sex offence, counsel said.

The reality was that boys are made criminally responsible for sexual activity while girls enjoy an immunity, and the State had provided no "equalisation of risk" between the two penalties. The law also failed to acknowledge fatherhood does have consequences for a boy and was a deterrent to boys engaging in underage sexual activity.

-- ibid

Yet, as argued by the boy's lawyer, modern legislation has already equalised the burden of teenage pregnancy often requiring the father of the child to pay child support. This before we even consider that risk of pregnancy is just that: risk; whereas prosecution for the boy is almost a sure thing whether or not a baby results. Furthermore, even if the couple had used protection, reducing pregnancy risk to zero, the law still targets the male and excuses the female. How is that justified?

* * * * *

 
Then, beyond all this, we really should deal with a fundamental question: Is the law the right instrument for dealing with sex between teenagers? Why do we resort so quickly to the courts, probation and jail?

Yawning Bread 


 

Singapore's Section 376A is textually gender-neutral. It makes it an offence for any person A to "penetrate, with As penis, the vagina, anus or mouth, as the case may be, of a person under 16 years of age (B)".

Equally, it makes it an offence for the passive party A who may be male or female - who "causes a man under 16 years of age (B) to penetrate, with Bs penis, the vagina, anus or mouth, as the case may be, of another person including A".

The problem may be what the word "causes" means. Does it include "allow"?

 

Footnotes

  1. The Oireachtas is the name for the Irish parliament.
    Return to where you left off

Addenda

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