Is the law gender biased?

I am offended by this article. (Pasted in full - free online access to ST ceased.)

Further than arguing for gender equality under criminal law, it seems in fact to be anti-feminist and misogynistic, in the way it (often) focuses on what women "can get away with" to a greater degree than on the current legal imbalances themselves.

It is one thing to argue for gender-neutral language in our criminal statutes, and another to say that we should not let women "continue reaping the benefits accorded to women of yesteryear" - a regrettably misogynistic conclusion to the article.

Which is a pity, because I thought the first half of it made good points that were (IMHO) rather well-supported with evidence, particularly wrt the case for (legal) protection for under-aged boys and female-male rape.

On a totally different, much happier note: I got 1.5k from UNSW to go to Scotland! *delirious whoops of joy* Am seeking the other 1.5k from the Sg High Commission here and SIA. Wish me luck.

Oh, and also - my interview with ABC radio on international students was aired on monday morning. I'm sorry I didn't put it up here earlier! :P

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19 June 2005
The Sunday Times

Is the law gender biased?

By Ben Nadarajan

TWO young mothers who pitched their stillborn babies from their HDB flats - one from the window, the other down the rubbish chute - were punished recently.

Teenager Hafshah Ansari was given a two-year probation while undergraduate Koh Kailin got off with a warning.

Both were initially accused of infanticide. But the charges were later reduced because Hafshah's baby was already dead before the 17-year-old disposed of the body and Koh, 23, gave birth prematurely to what is medically classified as still a foetus.

Infanticide is rarely committed here. Since 2002, there have been only four cases.

This rarity could be down to the fact that only a mother who kills her child who is under a year old can be charged for this offence.

If found guilty, she can be jailed for life, or given up to 10 years' jail and a fine.

But if it was the father who killed his baby, he would be up for murder - a capital offence.

Some people have questioned the double standards. Why is the mother allowed to get away with just a jail term when the father has to pay with his life for the same crime?

Lawyers suggest that this 'concession' arises from the traditionally held belief that mothers suffer the most mental stress before, during and after birth.

The section of the Penal Code which deals with infanticide explains that mothers will be given this special allowance because the 'balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth'.

Post-natal depression affects about one in every 10 mothers, especially if the birth was premature.

Fathers, on the other hand, do not go through the same physical, psychological and hormonal changes that mothers do.

But the Singapore courts have always held the view that a person who is mentally ill at the time of the offence, but knows that what he did is wrong, is as responsible for his actions as any normal person.

Only the mentally unsound or the retarded can get away with a crime.

So this concession given to mothers seems a bit out of sync with the courts' stance.

There are also other gender distinctions made in other sections of Singapore's legislation.

The law basically expects and states clearly how a man should behave sexually, that he must refrain from saying a woman sleeps around and that he must maintain his wife during marriage and even after a divorce.

But it says little about a woman's conduct.

If you're female, you could have sex with an underaged boy, engage in 'unnatural sex' with another woman, or seduce a married man - and get off scot-free.

God help the man who commits any of these.

Can a woman rape a man?

UNDER the section of the Penal Code regarding rape, the wording in the legislation says that only men can be rapists.

But Gleneagles Medical Centre's consultant urologist Peter Lim said it is 'clearly possible' for a woman to rape a man as well. He feels it's time to move away from the traditional notion that only men can be the aggressor.

The problem of such a change in mindset is that the word 'rape' still carries the idea that violence is involved.

'There are some views that a woman cannot rape a man because she cannot overpower him physically, like a man can a woman,' said Dr Lim.

And there are those who believe that a man who can have an erection must have enjoyed the rape and thus cannot claim later to have been forced.

But Dr Lim feels that a woman can commit 'intellectual rape' by using her position of power to force a man to have sex with her.

For example, a female boss can threaten her male subordinate to either take her or take a hike.

'Such rape could be seen as more reprehensible because it involves a calculated planning of the offence,' Dr Lim said.

It is also harder to prove that a man was raped as there is not likely to be any noticeable abrasion or bruises to the male organ.

But cases overseas have shown that the courts there do think women are capable of rape.

Just two months ago in Norway, a 23-year-old woman was jailed for nine months for raping a 31-year-old man at her house.

No protection for underage boys

BUT even if we accept the view that grown men should know how to protect their own manhood, what about young boys?

The Women's Charter protects girls under the age of 16 from being sexually exploited by men.

The Penal Code also says that a man who has sex with a girl under 14, even if the act is consensual, is guilty of rape.

But boys are generally left to fend for themselves. There is no law to protect boys against the sexual overtures of an older woman.

Even for laws against incest, although offenders of either gender can be jailed for up to five years, a male offender can get as long as 14 years' jail if he had sex with a relative who is under the age of 14. Again, for the woman, there's no added punishment.

The only legislation which briefly covers the sexual well-being of a young boy is in the Children and Young Persons Act, which bans sexual exploitation of all children.

So if a boy says 'yes' to an older woman, even though he may not know exactly what he's getting into (pardon the pun), the woman cannot be touched by the law.

Recent cases overseas suggest that boys barely out of puberty are becoming easy prey for some women.

Take American Mary K. Letourneau. A decade ago, the then 34-year-old teacher took her 12-year-old pupil under her wing and initiated him into the joys of sex.

The pair recently got married upon her release from prison after serving a seven-and-a-half-year sentence for second-degree child rape.

But who can say that Mr Vili Fualaau knew what his teacher was doing to him when he was only 12?

In fact, Mr Fualaau sued his school for psychological trauma after the affair came to light, accusing the authorities of not intervening despite knowing of the relationship.

More recently, in Tennessee, physical education teacher Pamela Turner was charged with raping a 13-year-old boy.

Though no similar scandal has been reported in Singapore, young boys are clearly also vulnerable to being exploited for their bodies as young girls are.

So what's stopping them from getting the same kind of protection from the law?

Veteran criminal lawyer Subhas Anandan feels the Penal Code must be fair to all.

'What is good for the goose is also good for the gander,' said Mr Anandan, the president of the Association of Criminal Lawyers.

'The Women's Charter already provides enough protection for women. Other legislations like the Penal Code must look after everyone.'

No such thing as lesbian sex?

MUCH has been said last year about Singapore's definitions of 'unnatural sex'.

But what I find most unnatural about it is that while it is a crime for a man to engage in 'unnatural sex' with another man, the law is notably silent with regards to lesbian sex.

It also outlaws any acts of 'gross indecency' between men, but yet again, keeps mum about any such acts between women, as if it was unthinkable that women could do anything indecent.

As for the law on oral sex, there have been recent cases where men, who had women perform fellatio on them, were convicted.

But no one seems to be able to answer this question: Can, and will, a woman be charged if a man performs oral sex on her?

Some might argue that having oral or anal sex - both deemed to be 'unnatural' by the law - should not be considered a crime.

But if the men are going to get jailed for engaging in the act, then it is unnatural that women can share the pleasure but skip the pain.

Review of sex laws

THE Penal Code is currently being reviewed after a passionate debate in Parliament last year about our archaic sex laws.

Senior Minister of State for Law and Home Affairs Ho Peng Kee acknowledged to the House then that these laws were drafted in '19th century language'.

Certain MPs also pointed out in Parliament that laws governing sexual offences should not be 'gender specific'. For example, one MP pointed out that a woman who seduces a married man gets away with just a bad reputation, but a man who does likewise to a married woman gets thrown in jail for up to two years.

There are others.

The law allows a woman to flash at a man, yet expects her to be mortified when a man returns the favour. A man's modesty cannot be insulted, only a woman's can.

And under the Defamation Act, any suggestion that a woman is unchaste or adulterous is a strict no-no. If you say that of a man, who cares?

But Associate Professor Ho feels that Singapore shouldn't go overboard in making provisions non-gender specific. 'This is because in sexual matters, men are normally still the aggressors. Our laws need to deter them, not the women.'

Yes, laws are there to protect potential victims.

But it has no reason to protect would-be perpetrators, which is what some of our laws seem to do by specifying that only men can commit certain crimes.

Most of these laws were enacted at a time when society viewed women as the weaker gender who needed protecting. Surely, Singapore has advanced sufficiently to accord both men and women equal protection under the law.

It is time to update our laws to reflect this societal change.

Let's not allow modern women to continue reaping the benefits accorded to women of yesteryear.


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