A willy-nilly interpretation of the law

by Bertha Henson

ARE you confused about the case of the transgender who was let off lightly by the courts for having sex with a minor, a girl aged 13? It is such a strange case that we looked up the judgment of Justice Kan Ting Chiu to see exactly what the transgender did to the girl and what the law says about a woman who thinks she is a man and who has sex with a girl.

Actually, it said nothing.

Let’s forget that Zunika Ahmad, now 40, had duped two other women into marriage because they thought she was male. They got married in Indonesia. In Singapore, there is a rule that you need to declare your sex at birth so that there’s no deception involved on the part of either spouse-to-be. Yes, such stories where a wife discovers her husband used to be a man are not new.

Zunika, now divorced from her two wives, had always thought herself male, from a very young age. She was brought up flat against the facts when she was enrolled in kindergarten, when she had to wear a girl’s uniform. But she had always acted like a male, and believed she was one. Psychiatrists call this gender dysphoria and suggested she go through a proper sex change.

The charges that were first levelled at her were horrific. She had 15 charges for using a dildo on the girl and another five for using her fingers to penetrate her vagina. These came under 376A (1)(b) of the Penal Code. Initially, she had pleaded guilty to six of these charges with the rest taken into consideration. Then there was one more charge under the Children and Young Persons Act for committing an obscene act on a minor; she had taken off the girl’s top and molested her.

The upshot of it is that although Zunika herself pleaded guilty, the judge decided to use the Humpty Dumpty dictum in Through the Looking Glass: When I use a word it means just what I choose it to mean – neither more nor less.

So what were the words in the Penal Code to make the judge decide that Zunika didn’t run foul of the Penal Code? It reads… Any person (A) who (b) sexually penetrates, with a part of A’s body (other than A’s penis) or any anything else, the vagina, or anus, as the case may be, of a person under the age of 16 years of age (B).

Said Justice Kan : “The question which I have to resolve is whether the person A in s 376A (1) (b) can be a woman. The provision is a relatively new one enacted in 2007, and the question had not been decided before. On a plain reading of (b), A is a person who has a penis which A had not used to penetrate B, and had used another part of the body or something else to do that. The reference to a person who has a penis cannot be construed to include a woman without doing violence to common sense and anatomy.’’

He said that if the intention was that A can be a man or a woman, adding a few words would have clarified matters. The provision could have read: “a part of A’s body (other than A’s penis, if A is a man)”. In other words, Zunika could not have committed a crime because it is NOT a crime by virtue of her sex.

Justice Kan dwelt on the legislative history especially when changes to the Penal Code were brought to Parliament in 2007. One new offence introduced was sexual assault by penetration with other body parts and objects, other than the penis. Which is well and good but it seems that there isn’t much clarity who the perpetrator must be before it becomes an offence. Then there was also much concern about female sexual predators, who take advantage of young boys.

In fact, many laws are gender-specific rather than gender neutral because, according to explanatory notes that accompany the legislation, “they reflect situations where men tend to be the aggressors e.g, rape will remain an offence that only males can commit’.”  It added: “The offence of rape is clearly understood to be non-consensual penile penetration perpetuated by a man on a woman. Due to the anatomical differences between men and women, the offence of rape should remain an offence that can only be physically be performed by a man.’’

As for women who prey on boys, the law invoked is section 7 of the Children and Young Persons Act (sexual exploitation of child or young person), which is what Zunika was sentenced under. The notes goes on to say, rather intriguingly: “However, for offences where both a man or a woman could be the aggressor, our approach is to make it gender-neutral e.g, a female could be prosecuted. e.g. a female could be prosecuted for using any body part or object to penetrate the anus of a male victim.”

Commenting on this, Justice Kan said: “It was not explained why gender neutrality for the offender was only extended to situations involving male victims.’’ The judge went to great lengths to explain why he could not extend the ambit to include female offenders. “If a court were to read A to include a woman, it would have gone beyond interpreting the law, and would be re-writing it,’’ he said.

“We must guard against bending backwards and straining the judicial spine to give a purposive interpretation, and not reading the law as it is. The better course is to leave drafting to the draftsman, and to leave it to the legislature to amend the provision to make it clear that person A includes a woman, if that is its intention. ‘’

The Penal Code was amended so that the laws are up to date with today’s context. It seems that the legislators and drafters either did not consider the above scenario or thought it was broad enough to cover all kinds of perversions. It simply cannot be that Parliament thinks it is all right for a transgender person to sexually abuse a young person. Zunika was sentenced to eight months’ jail under the Children and Young Person’s Act, which must have surprised even her. You have to wonder what the family of the 13 year old, who happen to be her neighbours, think of the sentence. What is not clear is whether Zunika can be brought to court on the same charges if there is an appeal by the Attorney-General to a higher court to rule that Justice Kan read the law wrong.

If it does not, then Parliament had better get a move on to plug this hole – no pun intended.

 

Featured image by Natassya Diana.

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The post A willy-nilly interpretation of the law appeared first on The Middle Ground.

- Bertha Henson