Currently, we have 2 different sections of the law to charge people having sex with underage children.
Section 375 of the Penal Code essentially says having sex with a woman without her consent is defined as rape. And in the case of girls under 14, even with her consent, she is also deemed to be raped. This section also specifies that the perpetrator would face a mandatory jail sentence with an additional possibility of facing fine or caning, depending on the circumstances of the rape. In cases involving girls under 14 without her consent, the perpetrator would face both a mandatory jail sentence and caning.
Section 376A essentially says anyone having sex with a girl under 16, with or without her consent, is guilty of rape. But for a person charged under this section, he would face a mandatory jail sentence with possibility of fine. There is NO mention of caning except if the girl is under 14. In this case, the perpetrator would face a mandatory jail sentence with an additional possibility of facing fine or caning.
(Read also: ‘Child sex convict and Contact Singapore poster boy Joshua Robinson did not even have a Bachelor degree’)
Now, the way I see it, these 2 sections now allow the Police to “selectively” charge the perpetrator with possibility of bias. So, let’s go through the various scenarios and observe the outcome by charging the perpetrator under the 2 different sections.
Under 14 case – Perpetrator charged
Under section 375 –
- With girl’s consent: Perpetrator faced mandatory jail sentence with a possibility of facing fine or caning or none.
- Without girl’s consent: Perpetrator faced both mandatory jail sentence AND caning.
Under section 376A –
- With girl’s consent: Perpetrator faced mandatory jail sentence with a possibility of facing fine or caning or none.
- Without girl’s consent: Perpetrator faced mandatory jail sentence with a possibility of facing fine OR caning OR none.
So, if someone raped an underaged 14 year-old-girl without her consent, the perpetrator would face mandatory caning if he was charged under 375 but not under 376A. The key phrase in section 376A, in this case, is “shall also be liable to fine or to caning”. There is a possibility that the person might not be caned. But if he was charged under 375, it gave the judge no leeway but to sentence him to be caned as well, as specified in 375.
Under 16 case (ie, 14+ or 15+) – Perpetrator charged
Under section 375 –
- With girl’s consent: Not Applicable – cannot be charged under this section.
- Without girl’s consent: Perpetrator faced mandatory jail sentence with a possibility of facing fine or caning or none.
Under section 376A –
- With girl’s consent: Perpetrator faced mandatory jail sentence with a possibility of facing fine or none.
- Without girl’s consent: Perpetrator faced mandatory jail sentence with a possibility of facing fine or none.
So, if someone had sex with a girl who was 14+ or 15+ with her consent, he would face a mandatory jail sentence with or without fine, under 376A. There is no caning here. However, if he raped the girl (ie, sex without consent), under section 375, he might be caned but under 376A, there is no caning at all. So even if the judge wanted to send him for caning, the judge would not be able to because 376A does not provide for caning, assuming the person was charged under this section by the Police.
In conclusion, the conflicting sections can essentially allow the Police to charge a perpetrator differently resulting in different outcomes, especially when it comes to caning.
Now the question we would like to ask the Police is, under which section was Joshua Robinson charged? Section 375 or 376A?
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Republished from the FB Page ‘We want Minister Grace Fu to resign‘.
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Editor’s note:
A former policeman and blogger Gangasudhan said in his Facebook that what Joshua Robinson did, fell into such a narrow scope which is not rape or statutory rape.
“In the end, It was consensual sex between an adult and a not-minor-but-not-adult-also person. The bugger was not under any (specific) obligation to safeguard the girls. That’s why he can only be charged with the lesser charge (I think it is 376A-224) which doesn’t have caning.
For all we know, the one girl who suffered ‘mental breakdown’ may be too unreliable and prone to changing her story, while the other girl may be a hostile witness who feels nothing was wrong in having sex with the guy. If go to trial and then suddenly they say never had sex, then it will become unnecessarily complicated and worse, the girls also kena charge for false statement.”
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Addendum
Rape
375.—(1) Any man who penetrates the vagina of a woman with his penis —
(a) without her consent; or
(b) with or without her consent, when she is under 14 years of age, shall be guilty of an offence.
(2) Subject to subsection (3), a man who is guilty of an offence under this section shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.
(3) Whoever —
(a) in order to commit or to facilitate the commission of an offence under subsection (1) — (i) voluntarily causes hurt to the woman or to any other person; or (ii) puts her in fear of death or hurt to herself or any other person; or
(b) commits an offence under subsection (1) with a woman under 14 years of age without her consent, shall be punished with imprisonment for a term of not less than 8 years and not more than 20 years and shall also be punished with caning with not less than 12 strokes.
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.