Romeo Knew Juliet Was a Minor But…
JEREMY LUA (Associate Editor)
“We were in love!”
Say romance, and one invariably thinks of Shakespeare’s Romeo & Juliet. However, if their tale was retold today, these star-crossed lovers may have more than just the blood feud of their families to contend with – they may also get in trouble with the law.
Juliet, as her father describes, “hath not seen the change in fourteen years”, meaning she was a couple of weeks shy of her fourteenth birthday. The couple’s consummation of their marriage might land Romeo in jail for a very long time – based on laws prohibiting sex with minors.
These laws serve an important role in protecting young girls from paedophiles who prey on and exploit them. However where minors like Romeo and Juliet who are close in age and genuinely in love are concerned, these laws, aptly dubbed the “Romeo & Juliet laws”, become a blunt and ill-fitting instrument.
As teens and minors become less inhibited and more liberal, pre-marital sex and sexual activity are now more commonplace. The recent 2009 annual crime brief released by the Singapore Police Force revealed that statutory rape cases involving minors below 14 years old rose by a whopping 36.1% in 2009, thus further highlighting the need to re-examine such laws.
The Law in Singapore
Under Singapore law, Romeo could be charged under s. 376A of the Penal Code (Cap. 224, 2007 Rev. Ed. Sing.) or under s. 140(i) of the Women’s Charter (Cap. 353, 2009 Rev. Ed. Sing.).
Although both the Penal Code and the Women’s Charter invoke similar penalties of imprisonment or a fine or both, it is apparently rarely used in cases of consensual sex between minors. Instead, s. 140(i) of the Women’s Charter appears to be more commonly invoked even though it (curiously) falls under the heading of “Offences relating to Prostitution”.
This could be explained by the greater remedial flexibility of the Family Court (which may hear cases involving offences related to the Women’s Charter) and the harshness of the Penal Code provision.
Under s. 376A of the Penal Code, sexual penetration of a minor is criminalized. The scope of this offence extends to sexual activities other than vaginal intercourse, such as fellatio and anal intercourse. While one may argue that the other two activities are also criminalized under the infamous s. 377A of the code, it nevertheless underscores the harshness of the provision; one may not need to ‘go all the way’ to be exposed to criminal liability. Furthermore, it seems curiously skewed against males (or boys) – should Romeo reciprocate the act of oral sex, criminal liability would not be attracted.
The harshness of the Penal Code is more apparent in sentencing. The penalty of sexual penetration of a minor under s. 376A is either imprisonment of up to 10 years or a fine, or both. In the case of a minor below the age of 14, one may be liable for caning, imprisonment of up to 20 years, or a fine. As Juliet was actually thirteen, Romeo might be facing the prospect of both a very long time behind bars and a sore rear end if he had been charged under s. 376A.
In comparison, for the charge of voluntarily causing grievous hurt, one may be liable to imprisonment of 10 years, and a fine or caning under s. 326 of the Penal Code. Hence, if one considers the harm caused, it appears that the punishment prescribed under s. 376A is wholly disproportionate especially since consensual sex with a minor is essentially a moral crime.
Under s. 140(i) of the Women’s Charter, a person who has carnal connection with a girl under 16 except by way of marriage is liable for imprisonment for a term of up to 5 years and a fine of up to $10,000. Its scope appears to be confined to the act of vaginal intercourse itself.
In comparison, the penalties for sex with a minor under s. 140(i) of the Women’s Charter are less harsh. Furthermore, it is observed that the Courts in Singapore appear to take a more sympathetic approach in sentencing young offenders, taking into account the unique facts and circumstances of each case and preferring to impose probation instead of imprisonment. It was reasoned in PP v. Mok Ping Wuen Maurice, [1999] 1 Sing. L.R. 138 that “[y]oung offenders are in their formative years and chances of reforming them into law-abiding adults are better. The corrupt influence of a prison environment and the bad effects of labelling and stigmatisation may not be desirable for young offenders.”
The approach taken by the Attorney-General in preferring to prosecute offenders under s. 140(i) rather than s. 376A, and that of the Courts in sentencing is to be lauded. As Singapore does not recognize any defence other than a reasonable belief that the minor was older than 16, the current approach appears to mitigate the harshness of the penalties.
However, the current state of the law is still unsatisfactory. The original purpose of statutory rape or sex with minor laws was to protect young, unwed females from being robbed of their virginity; it is essentially a moral law. A strong case may be made for maintaining the provisions to prevent older, mature men from sexually exploiting minors and girls. However, offending minors are different from the former category and should be treated differently.
Where minors engage in acts of ‘love’ and intimacy, it would be unfair to hold one party criminally liable, especially since it could be a permanent stain on his record. After all, it is unavoidable for one to err in his youth. Furthermore, usually it is not the girl who makes the complaint, but her furious parents seeking ‘justice’ from the law. However, this does little good. As the Attorney-General, Prof. Walter Woon, aptly puts it at the third Children’s Society lecture in 2009, “[s]ending them to jail per se would not make them reflect on their lives. That is the last thing that is going to happen.”
The Law Elsewhere
Romeo might be better off being charged in another jurisdiction. Like Singapore, many jurisdictions around the world have had to grapple with the problem of maintaining statutory rape laws in order to protect the interests of young girls, while ensuring that boys like Romeo would not be end up as criminals a result of an act of ‘love’.
In the US, Romeo might be able to plead the exception of closeness in age as a valid defence to statutory rape. For example, it is an affirmative defence to sexual assault in the state of Texas “if the actor was fewer than 3 years older than the victim.”
Similarly, in Canada the exception close-in-age applies; minors aged 14 or 15 years old may have sex with a partner who is less than 5 years older, while children aged between 12 and 13 years old may have sex with a partner 2-3 years older.
However, the exception does not apply in the UK. Under the Sexual Offences Act 2003 (U.K.), 2003, c. 42, s. 13, a person under 18 who commits the offence engaging in sexual activity with a child, defined under s. 9, will be deemed to have committed the same offence as if he did so as an adult above 18. However, the same section provides for lower penalties where the offender is a minor.
Conclusion
Statutory criminalization of consensual sex between minors ought to be abolished. The criminalization of sex between minors is a separate issue from the concern with sexual exploitation of young girls: the former being a moral crime while the latter involves some tangible form of harm. With the changing of social mores, and more teens taking a liberal stand towards pre-marital sex, the continued criminalization of sex between minors will only pave the way for a collision course between social values and criminal conduct. Perhaps, one way to resolve the problem now is to recognize the exception of the closeness in age in a dual-standard approach similar to the Canadian stand, and to allow greater room for sentencing, such as community work and counselling in addition to probation, to sharpen the blunt instrument that is currently the sledgehammer of the law.
[...] the law meet are no laughing matter. Consider the arguments in tough issues such as marital rape, consensual sex between minors, child pornography, workplace sexual harassment and protection for the victims of sex crimes and [...]
The author here recommends that consensual sex between minors should no longer be a criminal offence. How then do you draw and justify a proper distinction between sex between minors, and sex between a minor and an adult?
This becomes more complex when the parties are close in age. Even the “closeness of age” defence provides no complete answer. Any line drawn would be arbitrary.
The simplest way to deter sexual exploitation of young women, is simply to criminalise it entirely. This would perhaps encompass some instances of consensual sex, although i would suspect that society has not changed to the extent to accept underage sex.
If i recall, AG Walter Woon has previously commented on these matters, though i cannot recall the exact forum. The law relating to underage sex is seen best as a blunt weapon, sharpened in its application by the exercise of prosecutorial discretion.
Dear Terrence,
Thank you for taking your time to read this article. As suggested (and observed in various jurisdictions overseas), the close-in-age exception would help draw the line between sex amongst minors and sex with an adult (who is much older and thus exploited the minor). By limiting the close-in-age exception to 2-3 years, it ensures that teens who are truly ‘in love’ and in a consensual relationship would not be have the full weight of the law borne down on them. Is that line truly arbitrary? Perhaps, but it is not more arbitrary than the exercise of prosecutorial discretion. I would venture to suggest that as prosecutorial discretion is exercised behind the closed doors of the AGC, the lack of transparency may even suggest that it is inconsistent. The fact is, if the law remains as it is, a teen (like Romeo) can be punished by the law.
The heart of this issue is to ensure that teens who experiment with their sexuality should not have the full weight of the law borne down upon them. At the onset of puberty, teens grapple with many issues that plague them, do we really want to have the law hanging over their heads as they experiment with themselves?
Both are perhaps, arbitrary, although one would certainly be more effective than the other.
In an exercise of prosecutorial discretion, a broadly worded statute can be narrowed to afford leniency to those relatively “innocent” offenders.
However, should you abolish the law, you may create a situation where the state would be powerless to intervene and correct a wrong.
A broadly worded statute, although potentially over-inclusive, may simply be an administrative necessity, ex abundante cautela, to ensure that the truly culpable can never escape punishment.
I maintain my objection towards abolishing the provision entirely, although allowing a “close in age” exception may be a possibility.
Ultimately sexual offences tend to be private. If neither party is aggrieved, there would simply be no prosecution. This alone takes a lot away from the “teens in love” argument.
And finally, an appeal to morality. Simply put, wouldn’t we all rather our children wait until they are older? Does the author feel any differently about this? Perhaps not as a personal choice, but for his hypothetical children.
Dear Terence,
The parties involved i.e. Romeo and Juliet may not be aggrieved but their “furious” parents might, as suggested by the author. Furthermore, relationships may sour and the girl could invoke the law further down the line simply to get back at her male lover.
The distinction between sex between minors, and sex between a minor and an adult is that presumably, a male minor (Romeo) did not seek to exploit the girl (Juliet) when having sex with her. On the other hand, an adult really should know better when deciding to have sex with a minor. Hence, the distinction is justified.
Is the line drawn for the “closeness in age” defence truly arbitrary? There is definitely logic (although perhaps blunt) in keeping the gap to 3 years as opposed to say 20. The law is signalling a limit in which to tolerate the presumption of “non-exploitation” by the male (Romeo) when engaging in underage sex. Studies can also be done to determine the optimum age gap, for example by measuring male mental maturity development etc.
You argue against the decriminalisation of consensual underage sex between minors because they might be situations where the state would be powerless to correct a wrong. What situation would justify state intervention in the form of criminal conviction? If the boy truly exploited the girl in getting her to have sex with him, then consent may be deemed invalid and he may still be charged with rape (statutory or otherwise).
Finally, your appeal that criminal conviction should be retained for underaged consensual sex because children should be older before engaging in sex. Even if we were all able to agree on that position (i.e. that minors should not be engaging in sex), two points still need to be addressed: a) Does criminalisation serve as an effective deterrent against underage sex between minors? b) Is criminal conviction proportionate in dealing with the moral wrong of engaging in consensual underage sex?
I would argue that education is more appropriate in addressing these issues, not prison sentences.
Hi Terence,
I think I might not have made my point clear in the article. My suggestion wasn’t to abolish the crime of underage sex per se, but to introduce a ‘close-in-age’ exception. This will ensure that teens who experiment with their peers sexually will not be caught under the law, while giving keeping the law robust in such a way to prevent sexual exploitation of minors.
For example, between 14-16, the exception could be 3 years. For example, a 17 year old boy who sleeps with a 14 year old girl would not be guilty of sex with a minor, while an 18 year old boy who does the same would commit the criminal offence. This recognises healthy relationships between teens who are essentially peers, while acknowledging that a teen/adult at 18 should know the clear implications of engaging in sexual activity with someone who is much younger.
A further operation of this principle would be to limit the close-in-age exception for teens between 12-14 to 1-2 years, and any teen/child below the age of 12 should not be engaging in sexual activity. Such an application would take into account elements of mental age (and therefore corresponding levels of responsibility expected of).
On a side note, would I want my hypothetical children to wait until they’re older? Probably. In fact, it would be most desirable if they only engage in sexual activity after they get married, or are fully independent. Unfortunately, I have to be realistic. Sexual exploration is part and parcel of growing up, and really, as Xing Ji has pointed out, education should be the key, rather than the law.
The law should only be invoked only where it is necessary to prevent instances of exploitation and unconscionable conduct by another (i.e. grooming a much younger person for sex). Otherwise, it’s better to live and let live.
@ABOVE
i agree with terence the best way to protect minor girls is to criminalise the whole set up of the issue,moreover the age difference should not be a factor that allows and serves as a poitive point for yoyung children to makeout.
Hello all I would like to voice out what I believe and feel about consensual sex and if love can be done with sex. I believe that doing sex requires each person to be responsible for the consequences. People who do it before the marriage do not consider the consequences and when they are faced by the law they feel helpless. Based on the first article everyone is talking about, I agree but I still believe that the penalty for such offences should deter people from even doing it. The reason is there is no such thing as complete righteous if nothing is done about it. By using the law as a tool to ensure few of the people actually commit such offences is not very simple. The media and the Internet are responsible. The only way to curb and reduce it is to increase the severity of punishment if they break this penal code for them to be educated and reflect on whether it is right or wrong. Education is the most important tool. Educating parents to monitor their students, educating the students about sec education in school and the sexually transmitted diseases( STD) and to the public with the use of workshops and * exhibitions showing the trouble of dealing with the consequences if they are doing it. It may be a possible way to be done together with the implementation of this penal code to help keep the number of cases to be regulated. The close in age exception is not feasible. how has age got to be involved with this? Once a wrong deed it should receive similar punishments. I hope that everyone can do something to reduce the number of such incidents happening. One must be pratical and be able to influence and convince the hearts of people’s minds before this cases will be at the lowest.
Hi Jeremy,
I was wondering. Most of the cases concerns sexual penetration. But what if there is sexual intimacy between an adult (say around 21-25 years) and a minor(13-15) but there is no sexual penetration. What are the legal implications in this case?
Categories
Recent Posts
Recent Comments
Linkroll
© 2012 The Singapore Law Review
Most Commented
Meta