SINGAPORE: The Court of Appeal has overturned the acquittal of a 40-year-old woman who used a sex toy to assault her 13-year-old neighbour.
The decision is significant because the issue of whether a woman can be prosecuted under section 376A of the Penal Code for sexually assaulting a minor had not been considered by Singapore’s highest court before.
Zunika Ahmad was cleared of sexual assault charges in April, after Senior Judge Kan Ting Chiu ruled that the particular section of the law she was charged under “does not cover women as offenders”.
The apex court on Wednesday (Sep 28) allowed the Public Prosecutor’s appeal to overturn the acquittal, which has “widespread negative repercussions”, said Second Solicitor-General Kwek Mean Luck.
“This is an important point of law of public interest, with widespread ramifications for the investigation and prosecution of serious sexual crimes”, Mr Kwek said.
The Court of Appeal - comprising Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang Boon Leong and Tay Yong Kwang - also reinstated Zunika’s six charges. She will be sentenced on Oct 10.
The apex court’s landmark decision clears the way for female sex offenders to be prosecuted under section 376A, which provides for harsher penalties than the similar section 7(a) of the Children and Young Persons Act, which criminalises the sexual exploitation of a child or young person.
Zunika pleaded guilty in December to six counts under section 376A(1)(b) of the Penal Code, which criminalises the sexual penetration of a minor “with a part of A’s body (other than A’s penis) or anything else”.
“The reference to a person who has a penis cannot be construed to include a woman without doing violence to common sense and anatomy,” Judge Kan had said by way of explanation of his decision to acquit her.
Mr Kwek argued Judge Kan’s decision “goes against legislative intent, (which is) to protect minors from sexual penetration, regardless of the sex of the offender”. He urged the court to “look beyond the literal meaning to consider all possible or reasonable meanings”.
Mr Kwek also suggested the Court of Appeal is “entitled to read additional words” into the section of the law so that it reads “sexually penetrates, with a part of A’s body (other than A’s penis, if any) or anything else”, resulting in a gender-neutral outcome, he said.
The prosecution said there would be “widespread negative repercussions for other similarly worded Penal Code provisions” should Judge Kan’s decision be upheld.
Zunika’s lawyers N Sudha Nair and Lum Guo Rong argued the inclusion of the words “other than A’s penis” has been “deliberated upon and intentionally included” in the law.
“If section 376A(1)(b) was to be interpreted as gender neutral … then there would have been no necessity to include the phrase ‘other than A’s penis’,” the lawyers said.
The Court of Appeal came to a decision quickly – that, when “read in context … (and) as a whole, … section 376A(1)(b) is gender-neutral and is capable of (being applied) to a female offender”.
PROSECUTORS SEEKING LONGER JAIL TERM
Besides the six charges in question, Zunika had also pleaded guilty last year to one count under the Children and Young Persons Act for committing an obscene act with the victim.
Judge Kan sentenced her to eight months’ jail.
Prosecutors have launched an appeal against the “inadequate” sentence and are seeking a lengthier jail term of one year. Arguments will be heard on Oct 10, giving Zunika’s lawyers time to take her instructions.
Zunika, who passed herself off as an Indonesian man, met the teenage girl in 2011, when she moved into a flat two units away. Over time, Zunika, her two wives and a daughter became friendly with the victim’s family.
Zunika’s wives were under the impression they were married to a man. Her first wife became pregnant after an affair, but told Zunika the baby was hers. As she wanted to have a family, and was unwilling to reveal her true identity, Zunika went along with the lie.
Zunika’s sexual relationship with the girl began in February 2012 and continued for almost two years. Though the sex acts were committed with the 13-year-old’s consent, they are still illegal as the age of consent in Singapore is 16.
Judge Kan noted earlier this year that three psychiatrists had separately diagnosed Zunika with gender dysphoria, or a strong desire to be male. “She does not require psychiatric treatment,” one report stated, recommending sexual reassignment surgery instead, so that Zunika "can continue life as a man”.
Zunika’s lawyer Ms Nair had previously stated her client’s intention to undergo surgery and continue living with her wives and daughter, who have come to terms with her transsexualism.
- CNA/cy