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-year-old, despite her pleading guilty to six 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.
"Section 376A(1)(b) is gender-neutral and is capable of applying to a female offender," said Chief Justice Menon.
Diagnosed with gender dysphoria, Zunika speaks, dresses and behaves like a man. She was so convincing that her two wives did not know their "husband" was a woman until her sexual abuse of a girl who lived in the neighbourhood came to light.
The girl and her siblings, who were abandoned by their mother, had started going to Zunika's flat in 2011 to hang out with her "daughter".
In January 2012, Zunika kissed the victim on the cheek. Between March 2012 and December 2013, she had regular consensual sex with the girl using a sex aid. Zunika put a stop to the affair in December 2013. Three months later, the girl told her family about the acts after a quarrel with Zunika. A police report was made.
The prosecution had sought eight years' jail, arguing that Zunika had abused the trust put in her by the girl's father, who allowed his daughter to hang out at the accused's flat.
But in an unexpected twist, Senior Judge Kan Ting Chiu, sitting in the High Court, rejected Zunika's plea of guilt on the six counts of sexual penetration and acquitted her in April. He set eight months' jail for another sexual exploitation charge.
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 the age of 16 is guilty of an offence.
The judge decided that the law was worded in such a way that only a person with a penis can be found guilty of the offence, and said it was better for Parliament to amend the law to make it clear a woman can be found guilty as well.
It led the Association of Women for Action and Research to question the seeming inconsistency between the intention of policymakers and the way the provision was interpreted. The victim, now 18, also said she was saddened that Zunika was acquitted of nearly every charge.
Yesterday, Second Solicitor-General Kwek Mean Luck argued the phrase "other than A's penis" can be read to mean that the provision applies to all cases of sexual penetration except penile penetration. It can also be interpreted as "other than A's penis, if any", he said.
He stressed that Parliament had clearly intended it to protect minors against sexual penetration, regardless of the sex of the offender.
The prosecutor said Justice Kan's "untenable" interpretation has negative ramifications for other similarly worded provisions in the Penal Code, which runs contrary to the legislative intent for such offences to be gender-neutral.
Mr Kwek said another provision under the same section of the law referred to acts of penetration "against his or her spouse". This was textual evidence that the offence applies to both men and women, he added.
Zunika's lawyer, Mr Lum Guo Rong, supported Justice Kan's interpretation. He questioned the need to include the phrase "other than A's penis" if the provision was intended to be gender-neutral.
But the apex court agreed with Mr Kwek. It said it was clear from the literal meaning of section 376A(1)(b) that it was gender-neutral, especially when read in the context of other provisions governing sexual penetration of a minor under the age of 16 in the Penal Code. The court said it will issue detailed written reasons at a later date.
Zunika is expected to be sentenced on Oct 10.