SINGAPORE — A recent landmark decision by a High Court judge, stating that women cannot be charged for a particular limb of the offence of sexual penetration of minors, has sparked questions from those in the legal fraternity.

Without referring to the facts of the case in question, lawyers wondered if this legal finding could lead to male offenders getting punished more severely than female offenders, as they noted that women will need to be charged under other laws, which carry lighter penalties. The case in focus involved a 40-year-old woman who had pleaded guilty to sexually penetrating a girl between the age of 13 and 14 with a dildo, but had her pleas set aside on Tuesday as the judge found that the choice of words for the statute — Section 376A(1)(b) of the Penal Code — would reasonably indicate that it was intended to only apply to male offenders. This statute reads: “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 a person under the age of 16 years of age (B) with or without B’s consent, shall be guilty of an offence.” The transgender offender was born a woman but has identified as a man since her teens.

In acquitting the woman of these offences — she was convicted of a separate charge of sexual exploitation under the Children and Young Persons Act and sentenced to eight months’ jail — Senior Judge Kan Ting Chiu said: “The reference to a person who has a penis cannot be construed to include a woman without doing violence to common sense and anatomy.”

“It was not explained why gender neutrality for the offender was only extended to situations involving male victims,” Justice Kan noted, in relation to the parliamentary debate on the draft Penal Code (Amendment) Bill in 2007.

Lawyers interviewed yesterday said the gender-specific ruling throws up several issues and sought clarity either through the Court of Appeal or Parliament. Mr Shashi Nathan, a partner at Withers KhattarWong, pointed out that the finding could have ramifications in terms of parity of punishment for the same offence, depending on whether the offender was male or female. An argument could be made, taking Justice Kan’s ruling, that this statute was unconstitutional, he added. “I’m not comfortable with it because it suggests that because you’re a male, even if you have the same culpability as a woman, you’ll be convicted while a woman is acquitted. Gender should not matter.”

He added that such a gender-specific reading of Section 376A(1)(B) bears similarities to Section 377A of the Penal Code — which outlaws sex between men, but not between women — as offenders are limited to “one class of citizens”.

Veteran criminal lawyer and former district judge Edmond Pereira was also surprised. “If you look at the spirit behind the section, it does not necessarily have to be a man. So the reading of the language can be stretched,” he said.

Mr Sunil Sudheesan, who is acting head of the Association of Criminal Lawyers of Singapore, added that the gender of the perpetrator in such offences should not matter. “The fact is that something untoward was done.”

Lawyer Gloria James-Civetta, however, agreed with the finding that the statute, as it stands, applies only to men. “Looking at the lifestyle of people and the (period), this would have to be amended to be more neutral,” she said.

Mr Ravinderpal Singh, director of Kalco Law, pointed out that there is no blanket exclusion of women offenders under Section 376A. A separate limb, (1)(c), has been used against women teachers involved in sexual relationships with male students.

This limb states: “Any person (A) who 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 with or without B’s consent, shall be guilty of an offence.”

Mr Singh said there are other laws that can be used against women offenders who sexually penetrate minors, such as Section 354A(2)(b) under the Penal Code — outrage of modesty in certain circumstances. But this law is typically used in less severe offences, relative to the case in question. The punishment is also lower (between three and 10 years’ jail, and with caning), compared to that for Section 376A(1)(B) — in cases involving victims younger than 14, the maximum punishment is 20 years’ jail and a fine or caning.