It is incontrovertible that when someone has done wrong against another, justice requires that the former pay a penalty. Less noticed are other aspects: that to be just requires that the penalty must be proportionate to the degree of wrongdoing, and that if two persons commit similar crimes, the penalties imposed on them should be comparable.
The latter two aspects may be harder to uphold than the first prescription. Proportionality requires dispassion, but humans are prone to moral panics. When there’s a spate of house burglaries (even if it is not a real increase in incidents, but merely an increase in newspaper headlines) we start demanding severe punishment for it whereas in quieter times, we’re quite easy with lighter sentences.
Comparability in sentencing requires us to park aside our prejudices. And this is even harder to do because most people do not admit to holding prejudices. However, all it takes are open eyes: Look at how shabbily Indian shoppers are often treated in shops compared to the fawning that greets Western Caucasian shoppers. But the truth is, most of us do not wish to open our eyes. Lawyers and judges have been known to fail to park their own prejudices.
Justice SHOULD be blind, but it is very easy to fall short.
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Today’s Straits Times carried two stories from the courts.
The first was about a 20-year-old guy who had sex five times with a 14-year-old girl.
A full-time national serviceman who probably infected an underage girl with a sexually transmitted disease was yesterday ordered to be put on 18 months’ probation.
The 20-year-old admitted to two out of five charges of having sex with the girl, then 14, in October 2009.
Neither of them can be named.
The court heard that he had got her contact number through a mutual friend in October 2009, and started sending her text messages.
He asked the girl, who told him she was a virgin, to be his girlfriend, and she agreed. Two days later, at his home in Jurong, they had sex; about a month later, they had sex again at his home.
On Dec 30 that year, she went to a polyclinic complaining of pain while urinating, but left without having the prescribed urine and pregnancy tests carried out. She told the doctor that she had not had sex with anyone else.
The next month, she was examined by a doctor in hospital and was found to have chlamydia, which the accused was also found to have.
— Straits Times, 22 Feb 2011, NSF gets 18 months’ probation for underage sex
The second report was about another man who made sexual approaches to two boys who were probably between 12 – 14 years old, estimated from the fact that they were in Secondary 1 and 2:
The High Court yesterday upheld the 10-month jail term meted out to a former primary school teacher who tried to persuade two teenage boys to masturbate and let him watch.
In dismissing an appeal by Chock Soon Seng , 33, against the jail term handed down by a lower court last December, Justice Tay Yong Kwang said the sentence was not manifestly excessive. Chock had been convicted of two counts of attempted sexual exploitation of a child.
In 2008, he told one victim, a Secondary 2 student he met online, to film himself in a toilet using his mobile phone. But the boy lied that the video function was faulty.
The teacher later sent a series of text messages to a Secondary 1 student, including one asking the boy to join him to watch pornography and masturbate.
After finding out about the lewd texts in May 2009, the boy’s mother told her son’s school discipline master, who happened to be a police volunteer. He called Chock to arrange a meeting at a neighbourhood police post that evening.
When confronted, the teacher admitted sending the lewd messages.
Yesterday, Chock’s lawyer, Mr Anthony Lim, arguing for a shorter jail term, said his client was genuinely remorseful.
Mr Lim noted that when the complaint was made, the teacher gave himself up, confessed, apologised to the boys and their parents, and quit his job. He also said the district judge put too much emphasis on his client being a teacher, as the victims were not his students, meaning there was no abuse of trust.
Mr Lim also argued that there was no physical contact with the boys.
But Deputy Public Prosecutor Kan Shuk Weng said that even though the victims were not Chock’s students, he had a duty to instil moral values in them.
She said it was not that Chock did not want physical contact, but that the boys had the ‘good sense’ not to meet him.
— Straits Times, 22 Feb 2011, Lewd proposals: Jail term upheld for ex-teacher
Both sex-related cases with victims who were underage, but there are differences. Let’s compare the two cases:
The most significant difference, in my opinion, that relate to the gravity of the offences is this: Case #1 intended and resulted in penetrative contact which in turn resulted in physical injury.
As for mitigating factors, the perpetrator in Case #1 was himself not yet 21. Generally, the law is less harsh on those below 21 and rightly so.
As for whether the youngsters consented, it is an immaterial consideration. The girl seemed to have consented, but not the two boys. However it is immaterial because the law does not consider persons of that age capable of making informed consent.
There are two questions here:
1. Do you consider the two sentences equitable between these two offenders? If not, which do you consider too harsh or too light?
2. Even if you consider both sentences roughly comparable given the circumstances, do you consider both sentences too harsh, too light, or just right?