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,  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.
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.