Yawning Bread. 2 March 2009

Seven months' jail for a kiss and a lick

    

  

 

In recent articles, I have mentioned the Children and Young Persons Act (CYPA) a few times. This was generally in connection with its Section 7, which reads:

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.

I have argued that in cases of an adult male abusing a minor -– and the CYPA defines a "young person" as someone under the age of 16 -– such offences should be tried under this law rather than Section 377A of the Penal Code, which was meant to criminalise "gross indecency" between adult males.

Here is an account of an actual case tried under the CYPA.

 

Prosecutor vs ZQ

In Prosecutor vs ZQ (DAC 30865/2007 & 3 others, MA 250/2008), the accused ZQ faced four charges. The first related to an incident in 1997 when, aged 15, he first got his cousin PW1 to "kiss and lick" his (the accused's) penis. PW1 was then 5 years old.

ZQ was often in the same flat as PW1, as ZQ was roughly the same age as PW1's elder brothers, and the older boys spent a lot of time together.

The second and third charges related to similar incidents in 1998 and 1999. Then it stopped for a few years, but there was one more incident in 2002, which constituted the fourth charge. In 2002, ZQ was 20 years old and the victim PW1 aged ten.

PW1's testimony regarding the first time it happened was that it took place while he and the accused were alone in the flat. The accused called the younger boy into PW1's brothers' bedroom. There, the accused removed his own trousers and underwear and asked PW1 to kiss and lick his penis. ZQ told the younger boy it was "ice cream". PW1 recalled that he had to "duck down" to do it. PW1 estimated that it lasted one to two minutes, after which the accused asked him to stop. PW1 told the court he felt confused and a little disgusted after that.

The other incidents were similar. Each time, PW1 was asked to kiss and lick ZQ's penis, and generally ended when ZQ asked him to stop. There was no suggestion in witness testimony that ZQ inserted his penis fully into PW1's mouth. Nor did ZQ ever ejaculate on any occasion - – this much PW1 confirmed -– though his penis was erect.

PW1 told the court he complied with ZQ's wishes because he feared that the accused would beat him if he disobeyed. PW1 admitted that no force was ever used, not even threats issued, but the judge noted that in the eyes of a small child, the accused was "bigger" and therefore it was not irrational to fear consequences for not obeying.

PW1 did not tell anyone until 2002. He explained that it was because, when he was younger, he was unable to express himself properly. He did not quite understand what was happening and simply wanted to forget the incidents.

As for the 2002 incident however, one of his older brothers came back right after ZQ had left. The brother asked where ZQ was. PW1 was angry, telling his brother that ZQ "touch touch like that". Even then, PW1 did not know how to say "penis" and merely pointed to his own. Nonetheless, his older brother understood. He believed he told other members of the family, but nothing seemed to have come out of that. In her written judgement, District Judge Jill Tan noted that the family seemed to have given ZQ the benefit of the doubt, and to the younger child, it might seem that they didn't believe him.

And so, nothing more was said for years.

One day in 2007, the older brothers were reminiscing about the old times when they had been close to ZQ, and how they seemed to have drifted apart over the years. PW1, then 15, seized the opportunity to counter all that wistfulness with his negative view of the cousin, repeating his accounts of the incidents. It was only after that that events escalated and the father got involved. Attempts were made to settle the matter between the two families, but they were unsuccessful -- exactly why they were unsuccessful was disputed - – and eventually a police report was made.

At the trial, ZQ's defence was that these incidents never happened, and so it boiled down to a case of one person's word against another's. This was further complicated by the fact that PW1 was of a tender age when the alleged incidents took place and there had been a lapse of years before the matter was brought to the attention of the authorities.

Nonetheless, the judge found PW1 to be a credible witness. Even though he was only 15 at the time of the trial, he was straightforward and gave a "simple, matter-of-fact account of the incidents, without embellishment or exaggeration," said the judge.

"Despite being put through a fairly lengthy cross-examination lasting one-and-a-half days, PW1 did not waver in his evidence."

Some points in his evidence were also corroborated by the testimony of his older brother.

ZQ's evidence, on the other hand, the judge found to be inconsistent and "his postulations on PW1's motives were flawed". His allegations of threats made while he was at the police stations were also disbelieved. The investigating officer contradicted his version of events, and his claim to have made statements under duress was found to be at variance with the fact that he had carefully corrected those statements. Finding him to be "a witness of little credibility", the judge disbelieved his denials of the incidents.

Under Section 7 of the CYPA, he was liable to be jailed for up to two years, or fined up to S$5,000 or both.

The judge sentenced him to:

  • Two months for the first charge 
  • Three months for the second charge 
  • Three months for the third charge 
  • Four months for the fourth charge

The terms for the third and fourth charge were to run consecutively and that for the first and second, concurrently. Therefore he had to spend seven months in jail.

The judge said that there were "no factually similar cases" produced by the prosecution to guide her in sentencing.

* * * * *

 
Two things emerge from this case. The first is a question of whether 2 months' jail for the first offence was appropriate. The second is a more general point, that the CYPA is more than adequate for dealing with cases where minors have been sexually abused.

Let's take the first point: On the one hand, the victim was very young when the incidents began, and this generally calls for a stiff sentence. On the other hand, ZQ himself was only 15 -– and a minor -– when he first imposed himself on his cousin.

The judge herself said in her judgement, "I imposed the shortest imprisonment term for the first offence, and slightly longer terms for the two successive offences, bearing in mind that the accused was still below 18 then. The fourth offence called for the longest term due to the accused age -– he would have been 20 by then and old enough to understand the implications of his acts."

Is two months appropriate for an offender who at the time was under 16? The judge herself said in a separate paragraph that, "In sentencing him, I bore in mind that he was only 15 years old when he committed the first offence and would have had a good chance of being placed on probation if the matter had been brought to light then." He would have been brought before the Juvenile Court for that first offence. He would not have an adult criminal record attached to his name. Should it make a difference that he was prosecuted much later? It doesn't seem reasonable to me that it did.

In practical terms though, he would not actually to have serve the two months, since it would run concurrently with the other sentences.

The second point, I think, needs little elaboration. It is that Section 7 of the CYPA operates well enough as you can see from this case. Yet, the Attorney-General's Chambers continue to slap charges under 377A whenever male-male sexual contact occurs. As I will discuss in Confess or we'll throw 377A at you, this practice contains the seeds of injustice.

© Yawning Bread 

 

 

 

20 February 2009 
Straits Times

Cousin jailed for obscene acts with boy 
By K. C. Vijayan, Law Correspondent 

A TEN-YEAR-OLD told his older brother that their cousin had molested him, but the older child ignored the claims as he thought his brother was confused over what had happened.

But five years later, after the boy had turned 15 in 2007, he repeated the story of the abuse to his brother who then decided to tell their father.

That sparked an investigation which unearthed a serial molester who made his young cousin perform obscene acts on him. The molestation started from 1997, when the victim was just five, and the culprit was aged 15. The crime went on for five years.

The alleged incidents happened in the younger boy's HDB flat where the older boy visited often as the two families had been close. The culprit, now 26, was convicted of four charges and was sentenced to a jail term totalling seven months.

He denied the charges and, in his defence, claimed that the complaints were lodged so long after the offences happened only because relations between him and the victim's brother had soured as both men were chasing the same girl.

The information technology assistant engineer, who cannot be named to protect the victim, also claimed the complaints were a ploy to get money from his parents. But the judge found his allegations were not borne out by the facts.

The offender initially appealed against his conviction, but withdrew it after District Judge Jill Tan released her 37-page written judgment on the case. He started serving his sentence on Jan 14. In her judgment, Judge Tan said the delay in reporting the case was understandable as it was 'not easy' to make such allegations against a close relative.

Acknowledging that the chances of the victim's memory having faded over time were very real and given that the victim and accused were known to each other, there was the likelihood of there being some motivation behind the charges. But the judge found the victim had given a straightforward 'simple, matter-of-fact account of the incidents, without embellishment or exaggeration'.

Despite being grilled over 1-1/2 days during the 17-day trial, he 'did not waver' in his evidence.

Judge Tan held the victim's account was supported by the accused's statement, which she said was 'essentially a confession' made by someone 'who was ready to come clean'. She also threw out the offender's claim of being threatened into making a confession and his explanation that he did not complain about his alleged ill-treatment then because he believed 'no charges would come out of it'.

Another move which swayed the judge was the offender's visit to the victim's family after being released from the lock-up to apologise to the victim's brother and seek forgiveness.

In mitigation, his lawyer S. Thangavelloo urged the court to impose a fine given his client's sexual immaturity and impulsive nature of the acts and his youthfulness at the time. But in one of the charges, the culprit was already aged 20 and would have been 'old enough to understand the implications of his acts', said Judge Tan. The three earlier offences were committed when he was under 18.

 

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