How the court reads sex
by Wan Ting Koh
AND so it happened. The Attorney-General’s Chambers (AGC) is appealing against the acquittal of the 40-year-old woman who had sex with a girl who was then 13. Zunika Ahmad, who thought of herself as a male, was relieved when she was acquitted last week of six charges of using a dildo on her neighbour and had to serve just eight months for sexual exploitation of a minor.
But the prosecution doesn’t agree with the judge’s contention that the Penal Code does not criminalise a woman who sexually penetrates another female with an object. Justice Kang Ting Chiu said the law applied only to male aggressors. See our story here. As for sexual exploitation, the charge came under the Children and Young Person’s Act, which doesn’t distinguish between the genders.
Here’s the odd thing. Even Zunika thought she did wrong. She had actually pleaded guilty to the six charges with another 14 charges taken into consideration for sentencing. Neither she nor her lawyer claimed trial nor contended that the Penal Code could not apply. So it was a bonus for them that Justice Kan said that his reading of Section 376A(1)(b) led him to conclude that she committed no crime. Or put another way, the law simply did not allow Zunika, a woman, to plead guilty.
He set aside her guilty plea and acquitted her of the charges.
In explaining the case, Mr Ruben Potter, a Partner at Estellion & Associates LLP, said that since according to Judge Kan, the provision under the section cannot cover women as offenders, he acquitted Zunika of the charges since there were no grounds for them in the first place. He added that “setting aside” basically means “to cancel, annul, or negate”.
He gave a hypothetical scenario. If an underaged person enters into a contract and fails to honour it, a lawyer could argue that no contract was formed in the first place given minors have no legal capacity to enter into a contract, thus invalidating the contract.
The prosecution’s appeal to a higher court will comfort the victim, who is now 18. She told ST in an interview: “I thought she was a man when she took my virginity, so why can’t she be charged like a man?”
The prosecution is arguing that the provision under the Penal Code is gender-neutral, and that it was “clearly intended by Parliament to be gender-neutral”.
This is a novel case because it has to do with the intent of Parliament and the judge’s interpretation of the words in the Penal Code. Appeals to a higher court by the prosecution are usually over acquittals or where it thinks that the sentence meted out was too low to fit the gravity of the offence. It would have to prove that the judge had ignored or didn’t take enough account of certain factors or tender new evidence.
In this case, if the High Court reverses the acquittal because it agrees that the law applied equally to male and female, Zunika’s guilty plea will go through and she will be sentenced according to the law. The maximum penalty she can get is 20 years’ jail and a fine. The prosecution isn’t happy about the eight months’ jail for sexual exploitation either.
But would it be as easy as that? Justice Kan said he thought it was beyond his scope to read the intentions of Parliament when it approved the legislation. Did Parliament mean both male and female predators or was it being gender-specific? He had suggested that the ball be thrown back to Parliament to clarify.
For now, the ball has been tossed upstairs.
The post How the court reads sex appeared first on The Middle Ground.
- Wan Ting Koh
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