Monday, 25 April 2016

Penal Code Section 376A(1)(b) does not cover 'Women as Offenders'

Update 29 Sep 2016: Apex court overturns ruling that cleared woman of sexual penetration of a minor
The victim: The underage girl had said she never suspected her abuser of being a woman

The Court of Appeal on Wednesday (Sep 28) overturned the earlier ruling of a High Court judge that only a man can be found guilty of the offence of sexual penetration of a minor.

Section 376A(1)(b) is gender-neutral and is capable of applying to a female offender," said Chief Justice Sundaresh Menon, delivering the decision of the 3-judge court, which also includes Judges of Appeal Andrew Phang and Tay Yong Kwang.

The court will issue detailed written grounds at a later date.

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Women can be guilty of sexual penetration of minors: Apex court

A woman can be just as guilty as a man for the crime of sexual penetration of a minor, the Court of Appeal made clear yesterday as it overturned the acquittal of a transgender who lives as a man.

The previous judge had ruled that Zunika Ahmad, 40, because of the way the law was worded, could not be guilty of the crime when she used a sex aid on a 13-yr-old, despite her pleading guilty to 6 counts of sexual penetration of a minor.

But the prosecution appealed. Yesterday, Chief Justice Sundaresh Menon, along with Judges of Appeal Andrew Phang and Tay Yong Kwang, ruled that he had erred.

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Woman pleads guilty, but law says only men can be guilty of rape

She had pleaded guilty to 6 charges of sexually penetrating an underage girl with a sex toy & her fingers.

The offence carries a maximum penalty of 20 yrs' jail with a fine.

Yesterday, Zunika Ahmad, 39, who is biologically female but had lived as a man since she was 16, and had even "married" two women, turned up in the High Court expecting to be jailed for her offences.

related:
Transgender man with 2 'wives' admits sex with teenage girl
Woman cleared of sexual assault charges in unprecedented ruling
Transgender man cheats on wives with girl, 13, using sex toy
Female culprit accused of violating victim with sex toy

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Woman acquitted of sexual assault as law ‘does not cover women as offenders’

A 40-yr-old woman who admitted to repeatedly sexually assaulting her 13-yr-old neighbour over almost two years was acquitted of 6 charges on Tuesday (Apr 12).

However, Zunika Ahmad was convicted under the Children and Young Persons Act for committing an obscene act with the victim in Feb 2012. She was sentenced to 8 months' jail; she could have been jailed up to five years and/or fined up to S$10,000.

In a landmark judgment on the six charges for which Zunika was acquitted, Justice Kan Ting Chiu said the particular section of the law under which she was charged “does not cover women as offenders”.

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Woman with two wives pleads guilty to sex with underaged girl

She was born a woman but has been living as a man since she was 16 yrs old.

Always wanting to be a man, Zunika Ahmad, now 39, accused her body of betraying her when her breasts grew.

So adamant was she to live as a man, she would use men's public toilets, took on jobs where her sex would be kept secret and attached a sex toy to herself whenever she had sex with other women.

related: She penetrated girl, 13, with sex toy

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Sexual assault: Appeal against acquittal over gender

The prosecution has filed an appeal against the High Court's decision last week to acquit a 39-yr- old transgender individual of sexual penetration of a minor. In the unusual case, Zunika Ahmad, who is biologically female but lived as a man, had pleaded guilty last year to 6 counts of sexual penetration of a minor and one count of sexual exploitation under the Children and Young Persons Act.

However, in an unexpected twist last Tuesday, Senior Judge Kan Ting Chiu cleared her of the sexual penetration charges after ruling that only a man can be found guilty of the offence under Section 376A(1)(b) of the Penal Code.

In a statement yesterday, the Attorney-General's Chambers (AGC) reiterated the prosecution's position that the provision in question was "clearly intended by Parliament to be gender-neutral".

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Woman acquitted of sexual penetration of a minor

In an unexpected turn of events, the High Court yesterday cleared a woman of sexual penetration of a minor, ruling that only a man can be guilty of the offences.

Senior Judge Kan Ting Chiu made the unprecedented decision in the unusual case of Zunika Ahmad, a 39-yr-old transgender individual who is biologically female but lived as a man and even married 2 women using the bogus identity of an Indonesian man.

Zunika pleaded guilty last December to 6 counts of sexual penetration under Section 376A(1)(b) of the Penal Code and one count of sexual exploitation under the Children and Young Persons Act.

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How the court reads sex

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 Kan 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.

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Woman acquitted of sexual penetration charges as law does not cover women as offenders

Despite pleading guilty, Justice Kan Ting Chiu cleared Zunika of all six sexual penetration charges.
Section 376A(1)(b) states that “any person (A) who sexually penetrates, with a part of A's body (other than A's penis) or anything else,” a person under 16 is guilty of a crime.
Justice Kan stood by the decision and stated that A could not be interpreted to be a woman. “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.
To interpret A as a woman would be rewriting the law, which the court does not have the power to do, he added.

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A willy-nilly interpretation of the law?

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, we’ve had such cases before in which a wife had no idea that the “husband’’ is a female.

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.

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A Biologically Born Woman Cleared Of Sexaul Assault Reveals A Loophole That Must Be Fixed
 Zunika sexually penetrated the underaged girl with external aids.
Justice Kan said, “a doubt whether a woman could be charged with an offence under Section 376A(1)(b) arose in my mind”, as reported by The Straits Times.
True enough, the law states:
"Any person (A) who 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 another person (B)"
Which means, the sexual offence is only committed when a body part is being used for penetration and in this case, Zunika used external aids.

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Transgender man’s shock acquittal
 
HE WANTED the world to see him as a man. But yesterday (April 12), Zunika Ahmad got off when a judge decided to drop sexual penetration charges against him because “he” was technically still a woman in the court’s eyes.
 
The case came to light last December when the 39-year-old pled guilty to having sex with an underaged girl, but the judge postponed sentencing as the case was unprecedented here in Singapore. Yesterday’s ruling was considered a landmark judgement even as members of the legal society said it was time to review the Penal Code so that offences are “gender neutral”.
 
As for Zunika, who had started living as a man since he was 16 years old, he said he was relieved to be cleared of the sexual penetration charges and would seek gender reassignment surgery after serving eight months on a lesser charge.
 
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Cheating Woman Marries Two Wives and Still Sexually Assaults 13-Year-Old Girl

This first-of-its-kind case must surely have baffled the cops, and the court.

A woman managed to marry two wives, and still find time to sexually assault another 13-year-old girl.

All this, while none of them knew that she was posing as a man.

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