Yawning Bread. 6 February 2009

Six men charged for sex with boy aged 15

    

  

 
The Attorney-General's Chambers (AGC) seldom issues media briefing statements. Over the last few months, what they have issued pertained to the high-profile cases against the Wall Street Journal and the 18 persons accused of contempt of court because they wore "kangaroo" T-shirts. By this record then, we can see that the AGC issues media briefing statements only when they expect a case to be politically sensitive.

So what is the first politically sensitive case this year where they felt they needed to issue a statement? Homosex!

 

The statement (see box at right) even concluded with a paragraph stressing that there was nothing discriminatory about this latest prosecution. It only goes to show how sensitive the government now is to accusations of anti-gay bias.

 
The case

The story was carried in Lianhe Zaobao and 'Today' newspaper on 5 and 6 February 2009, respectively [1]. Zaobao included in its story a tidbit that did not appear in 'Today' -– one of the accused used to be a Deputy Director at the Central Narcotics Bureau.

At the centre of the case is a 15-year-old male student who has not been named. The sexual acts were said to have taken place in 2006 and 2007; it is unclear when the student was 15. Now? Then?

Since the sex acts allegedly occurred in 2006 and 2007, the applicable law would be the Penal Code as existing at the time, i.e. before the repeal of the old Section 377.

Three of the six men are charged under that old section that made "carnal intercourse against the order of nature" an offence punishable by up to life imprisonment.

Three others are charged under Section 377A for "gross indecency between two males". This law prescribes imprisonment of up to two years.

What is the difference between the old 377 and 377A? In the case of those charged under the old Section 377, my educated guess is that the public prosecutor believes he can prove that sex involved some form of penetration. From precedents, as well as from an explanatory note affixed to the old Section 377, insertion of the penis, whether orally or anally, would constitute "carnal intercourse against the order of nature" -– vague and unwieldy wording which the Victorian framers of this law preferred over clarity due to their own prudishness.

"Gross indecency" generally means any form of sexually arousing touch; it may include mutual masturbation.

What I find interesting about the story in the press is that the boy "met" the six men via the internet, and apparently on separate and multiple occasions. You would also have noticed that the incidents took place over quite a lengthy period of time. This strongly suggests agency on the part of the teenager; he must have been cruising in cyberspace as much as the older men have.

This does not surprise me. I know it happens. Teenagers, male and female, straight and gay, can easily be found on the internet looking for sex. Before the age of the internet, I've seen teenage boys cruising in male toilets. Actually, even nowadays. A few years ago, I had to disrupt an incipient encounter between a middle-aged guy and a boy barely 14 years old -– and I had noticed that it was the boy who made the first approach towards the older guy.

Presumably, more of the full story behind the present case will emerge in court. One question would be whether the men knew that the teenager was underaged. Did he look much older than his years? Did he advertise himself as much older?

That said, these two laws in question set no age limit. After all, they were originally meant to catch adults having sex with adults. Hence, even if the accused can prove that they neither knew nor had reason to believe the teenager was underaged, it's no defence. At best, it can be used by their lawyer for mitigation, to argue for a lighter sentence.

 
Who is "underaged"?

But hang on... what on earth do we mean by "underaged" when the law specifies no age threshold? What does the AGC mean in their media briefing when it said

The Public Prosecutor will prosecute persons who exploit a young victim who is a minor, irrespective of the gender of the victim or whether the act was consensual. A young male victim, who is a minor, deserves to be accorded the same protection of the law as that given to a young female victim who is a minor.

Who is a minor?

The revised Penal Code can offer guidance. Section 376A (which was one of the amendments passed by Parliament in October 2007) uses the word "minor" in association with "under 16".

Sexual penetration of minor under 16

376A -- (1) Any person (A) who 

(a) penetrates, with A’s penis, the vagina, anus or mouth, as the case may be, of a person under 16 years of age (B); 

(b) sexually penetrates, with a part of A’s body (other than A’s penis) or anything else, the vagina or anus, as the case may be, of a person under 16 years of age (B); 

(c) causes a man under 16 years of age (B) to penetrate, with B’s penis, the vagina, anus or mouth, as the case may be, of another person including A; or 

(d) causes a person under 16 years of age (B) to sexually penetrate, with a part of B’s body (other than B’s penis) or anything else, the vagina or anus, as the case may be, of any person including A or B, with or without B’s consent, 

shall be guilty of an offence.

(2) Subject to subsection (3), a person who is guilty of an offence under this section shall be punished with imprisonment for a term which may extend to 10 years, or with fine, or with both.

(3) Whoever commits an offence under this section against a person (B) who is under 14 years of age shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.

 
As you can see, this section of the revised Penal Code makes similar provisions as the old Section 377, though with two important changes: it is gender-neutral and restricted to cases where one party is under 16.

 
Source: AGC website

29 January 2009
Media background brief

Proceedings for unnatural offences against Ng Geng Whye, Quek Hock Seng, Song Choong Chen Thomas, Balasundaram s/o Suppiah, Muhammad Hafashah bin Mohd Aslam and Ng Yong You Victor.

The abovenamed six accused persons have been charged for committing unnatural offences with a 15 year old male student on occasions in 2006 and 2007. The six accused persons met the victim while chatting on the internet. The accused persons are charged as follows:-

1. NG GENG WHYE: 1 charge of Carnal Intercourse Against the Order of Nature under s377 of the Penal Code Cap.224;

2. QUEK HOCK SENG: 1 charge of Gross Indecency under s377A of the Penal Code Cap.224.

3. SONG CHOONG CHEN THOMAS: 1 charge of Gross Indecency under s377A of the Penal Code Cap.224;

4. BALASUNDARAM S/O SUPPIAH: 1 charge of Carnal Intercourse Against the Order of Nature under s377 of the Penal Code Cap.224.

5. MUHAMMAD HAFASHAH BIN MOHD ASLAM: 2 charges of Carnal Intercourse Against the Order of Nature under s377 of the Penal Code Cap.224; and

6. NG YONG YOU VICTOR: 2 charges of Gross Indecency under s377A of the Penal Code Cap.224.

The Public Prosecutor will prosecute persons who exploit a young victim who is a minor, irrespective of the gender of the victim or whether the act was consensual. A young male victim, who is a minor, deserves to be accorded the same protection of the law as that given to a young female victim who is a minor.

 

However, since the alleged offences took place in 2006 and 2007, the AGC cannot charge the six men under this Section 376A.

But wait... there is the Children and Young Persons Act, Section 7 of which says,

Sexual exploitation of child or young person 

7. Any person who, in public or private ­

(a) commits or abets the commission of or procures or attempts to procure the commission by any person of any obscene or indecent act with any child or young person; or

(b) procures or attempts to procure the commission of any obscene or indecent act by any child or young person,

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a second or subsequent conviction, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 4 years or to both.

Section 2 (Interpretation) of this law defines a "child" as someone below 14 years of age and a "young person" someone older than a child, but under 16. It also defines a juvenile as who is 7 years of age or older, but under 16.

This law was very much in effect in 2006 and 2007. As you can see for yourself, it is gender-neutral and it should cover the offences that the six men are accused of.

 
Bias, engaging in politics or sloppiness?

So, why did the AGC choose to use the Section 377A and the old Section 377 in this case? If they were genuine about being even-handed regardless of the gender and sexual orientation of the parties involved, shouldn't they use the gender-neutral Children and Young Persons Act?

 

But sixteen is not always used as the cut-off age

Despite this discussion and the references to laws that I have cited here, it is still not clear that when the AGC says "minor", they mean a person below 16 years old. Nor is it clear that they recognise the same age of consent between heterosex and homosex.

There is a recent precedent showing otherwise. 

On 17 January 2004, the Straits Times reported a case in which a former High Court employee was charged for "unnatural" offences with 3 male relatives, the oldest of whom was 17 years old. See Is it true that consensual  homosex is no longer prosecuted?

By then ministers had already been saying for years that the government does not prosecute adults for consensual homosex. That this man was prosecuted for homosex with a 17-tyear-old male relative suggests that the AGC considered 17 to be still a minor. This would put it at variance with laws that clearly state that for girls (and heterosex), 16 is the age of consent.

Perhaps, this case was unusual in that it did not involve consent? Most unlikely, for the facts of the case showed that it was the 17 year-old who penetrated the older man.

So when the AGC says "minor", what exactly do they mean?

 
My friend George Hwang, who is a lawyer, tells me he has "this strange feeling that the AG Chambers is trying to keep s377A relevant through use". Perhaps people in the AGC, maybe the Attorney-General himself, is trying to build a case for never repealing Section 377A -– because they have repeatedly used it in real cases? If that's their motive, these supposedly politically-neutral officers of the state are engaging in politics.

I don't know if Hwang's hypothesis is right, but at the very least, I'd accuse the AGC of sloppiness. A far better law (Section 7 of the Children and Young Persons Act) is at hand and yet they don't use it. I sometimes wonder whether these guys in the AGC even know what tools they have, and what are the right ones in any given situation.

They will probably dislike my saying the above. "We know our laws" I can hear them thundering, red-faced.

Fine, but if you know your laws, then address George Hwang's question: Why deliberately choose the less appropriate law (Section 377A) to use?

© Yawning Bread 

 

 

 

Another possibility is that the AGC might feel that at least in the case of the three men whom they are confident of being able to prove penetration, the maximum penalty prescribed under Section 7 of the Children and Young Persons Act is too light. It is a fine of S$5,000 and two years' jail. Thus the need to use the old Section 377.

But if that is their reasoning, is their claim that they are being even-handed whether the "victim" is male or female untrue? If the "victim" had been female, could the old Section 377 be used against them?

Yes, it could, for Section 377 was gender-neutral, unlike 377A.

 

Footnotes

  1. The news stories can be seen at Six charged under s377 and s377A. 
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Addenda

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