This article was first published in The Straits Times, on April 15.

The Association of Women for Action and Research is deeply dismayed by the recent High Court decision on the sexual penetration of minors under Section 376A(1)(b) of the Penal Code (“Woman acquitted of sexual penetration of a minor“; Wednesday).

According to reports, the court decided that Section 376A(1)(b) covers only perpetrators with penises, a category it conflates with “men”.

There are three major issues with this approach.

First, in terms of substantive outcome, it is unjust to treat the sexual assault of a minor differently based on the gender or anatomy of the perpetrator.

The impact on the victim and the culpability of the perpetrator are not affected by whether the perpetrator has a penis.

Anyone who commits sexual abuse should be held accountable, regardless of their body parts.

Second, the idea that Section 376A(1)(b) does not cover female perpetrators or perpetrators without penises is inconsistent with the intention of the policymakers who introduced it.

In describing Section 376A in Parliament in 2007, then Senior Minister of State for Home Affairs Ho Peng Kee began by noting that “female sexual abuse of male minors” was a key concern.

He went on to state that the amendment to the Act was intended to cover female perpetrators.

Third, proper interpretation of the statutory language does not require the perpetrator to have a penis.

The words “other than A’s penis” in Section 376A(1)(b) are there to distinguish penetration with a non-penile body part from penetration with a penis, which comes under Section 376A(1)(a).

A person without a penis can clearly perform penetration with some other body part.

The contrast between Section 376A(1)(c) and other parts of Section 376A is also notable.

Section 376A(1)(c) refers to “(causing) a man under 16 years of age” to engage in penile penetration. By contrast, Section 376A(1)(d) refers to penetration by a person under 16 years of age with an object or a body part “other than (that person’s) penis”.

The legal drafters’ clear, deliberate distinction between “man” and “person” strongly indicates that “person” should not be limited to mean “any man” or “any person with a penis”.

Jolene Tan (Ms)

Senior Manager

Programmes and Communications

Association of Women for Action and Research