There has been much public discourse surrounding the sentencing of Joshua Robinson, an American citizen working in Singapore who was found guilty of sex with a minor and possession and distribution of obscene films.
He was sentenced to a total of 4 years’ imprisonment with no caning, which has sent society into a frenzy. On top of the numerous letters to the press, blogposts and Facebook rants, there has even been a petition that calls on the government to review the sentencing. Astonishingly, the Minister of Law and Home Affairs acknowledged the petition and asked the Attorney General Chambers to look into it, which it did and decided that there were no grounds for an appeal on harsher sentencing.
Unfortunately, an alarming proportion of the populace has failed to understand that sentences meted out in the court are not plucked out of the air at random, and that they are merely the culmination of an entire process. While, generally, most people acknowledge that “every case is unique/different” when it comes to discussing the court’s ruling, they do not quite understand the extent of that truth. Before one can enter into any discussion on the merits (or lack thereof) of a judicial outcome, it is vital to understand what factors may have contributed to this.
Circumstances of the Case
One of the most basic things is that how a crime unfolds has significant implications on how it is investigated and prosecuted. A teacher preying on a student is not the same as two classmates falling in love, although in both instances it would be statutory rape if the girl is below 14 years of age. It is also important to recognise that how a case is reported in the press is hardly ever neutral and a respected community leader would be portrayed very differently in media reports than a drug addict, although both could have committed identical crimes.
In this case, the man sought out young girls for sex but he did not quite muscle his way (pardon the pun) into the good graces of an unassuming child. What he did was turn to an online platform where men and women seek out members of the opposite gender for sex or sexual activities (or, at the very least, companionship), and then look up girls who fit his preference – (very) young girls. These girls were obviously vulnerable and how they ended up looking for sex or male companionship online is indeed symptomatic of a larger concern. But the fact remains that they made the choice to look for (sexual) companionship in a place that is meant for that purpose.
What we can gather from the various media reports is that the initiation of investigation came about because a girl whom he had met on a ‘social networking website’ called MeetMe and had then slept with, felt uncomfortable and then informed her parents of the incident. The girl reportedly suffered a mental breakdown – which gives us some insight into the reliability of her testimony. In addition to this, we also understand that he filmed her while having sex and she seemed to have been confused about what was going on.
Upon raiding the man’s home and computer, investigations revealed that he had a lot of pornography on his computer, of which a good number were of children. At the same time, one set of photos were discovered which appeared to be of another girl. The investigators managed to trace the identity of the girl (this could have been through detective work or by the man’s own admission during investigations) and established that he had slept with this second victim 2 years prior, whom he had met through OkCupid, a platform meant for adults above 18 years for dating (and/or finding sexual partners).
The circumstances of the case lead to the next step where the actual offences (as in, the charges under the law) are established. There are times when there can be different offences disclosed for the same set of circumstances but in this case, it was very narrowly (and clearly) defined.
The age of the two girls he slept with fell within a narrow scope that did not offer statutory rape as an option (i.e. the girls were not below the age of 14). In the end, the only offence that was disclosed fell under Section 376A of the Penal Code (Chapter 224) which covers sex with a minor (i.e. aged between 14 and 16). This offence carries a maximum punishment of 10 years’ imprisonment or a fine or both.
The act of showing the young child a pornographic video clip fell under the purview of Section 293 of the Penal Code (Chapter 224) which attracts the maximum punishment of one year’s imprisonment or fine or both.
Unfortunately, the law does not distinguish child pornography from any other form and they are all categorised as ‘obscene’ and would fall under the purview of Section 30 of the Films Act (Chapter 107) which attracts a maximum punishment of $1,000 for each obscene film or to 12 months’ imprisonment or to both.
Neither does the law distinguish between filming an obscene act involving adults or children – which is punishable under Section 29 of the Films Act (Chapter 107) up to a maximum fine of $40,000 or imprisonment of 2 years or both.
Once these offences are established and the facts of the circumstances make for a strong case, the prosecutor decides whether to formally charge the accused person in court. This will be based on the evidence, witness testimony and the investigation process. It is also possible that public sentiment or the political climate surrounding a case may factor in the decision as well. Sometimes, the prosecutor will decide not to prosecute and at other times, he or she may change the charge to something else (this could be a harsher charge, a lesser charge, or a more appropriate charge that fits the facts).
In this case, it is likely that the facts were straightforward and the evidence was clear-cut. It would be hard for the man to dispute possession of the pornographic materials. The only concerns might have been the witness testimony which would be of two minors who had consensual sex with the man and of the child who was shown the pornographic imagery.
The last stage of this arduous process is the verdict and sentence meted out in court. In most instances, the sentencing outcome is comparable with others and would generally reflect the severity of the crime. The ability of the prosecutor to present a strong case (to get the verdict) and argue convincingly (to get the desired sentence, if any) is weighed against the ability of the defence counsel in doing the same to achieve the opposite outcome. There is also the element of following precedents and the judge tries to mete out a sentence that is aligned and proportional to all other cases like it. Unless something extraordinary occurred in a case which has never happened before, there is no reason for the judge to deviate from the sentencing benchmarks. In fact, it will be dangerous because when a sentencing norm changes, clever defence counsels will try to push for lower benchmarks in other cases.
The one aspect that may see variation will be in how sentences are ordered to run concurrently (same time) or consecutively (one after another). The decision of the judge on this is likely based on what actually happened in the case – for example, are the different charges the result of one simultaneous act or are they each a different act.
For the case in question, the man pleaded guilty and therefore the verdict was a non-issue. The prosecutor argued for a strong sentence as compared to the norm and successfully achieved this outcome. In all, the man received 24 months’ imprisonment for 3 similar charges (i.e. 72 months in total), 12 months’ imprisonment for 4 similar charges (i.e. 48 months in total), 6 months’ imprisonment for another 2 separate charges (i.e. 12 months in total). While that adds up to a total of 11 years for the 9 charges, the similar charges (i.e. 24 months x 3 and 12 months x 4) were ordered to run concurrently and thus, he serves 48 months in prison (i.e. 24 + 12 + 6 + 6). There could be many reasons for the similar charges to run concurrently, which may include the fact that the sex was consensual with both girls, the earlier victim had not reported the offence, and the filming of the sex act could be different segments of the same sexual encounter.
Miscarriage of Justice?
Most people are discussing merely the very final step of this process – the sentence of four years that was meted out without any caning. Was it enough? Is it the same? Was there preferential treatment? Was there miscarriage of justice? That’s like saying the juice you bought from a stall was bad and then petitioning for the stallholder to provide better-tasting juice. It may sound like a noble pursuit but it is moot if the stallholder can only get the fruits from one location which only produces tasteless fruits due to poor soil content. In order to address the lousy juice then, you will have to look at the bigger picture and start discussing the climate that forced the stallholder to select only from those poor-quality fruits in the first place. Unfortunately, too many people right now are talking about the ‘juice’ and not nearly enough people are looking beyond the ‘stallholder’.
The truth is that the sentence is as harsh as it could have gotten without the man appealing the sentence. What really needs to be discussed is how child pornography is no different from any other type in the eyes of the law here, and what needs to be done to protect (or perhaps, better-educate) vulnerable youth in our society.
Imagine for a moment that, if the girl who was confused after the encounter was just a year older, this man would have possibly gotten away with it all. In fact, if both girls were just a year older, sex with them would have been perfectly legal. To put it in context, we are talking about a secondary three schoolgirl versus a secondary four schoolgirl – do you see a great difference in the severity in his actions and intent if the girl had been slightly older? But there is an incredibly big difference in the severity according to the law.
Critical Thinking 101
When looking at the outcome of a court case, it is best to understand the circumstances of the case first and not rely on media reports alone. Always bear in mind that key information that would have made all the difference in the prosecutor’s decision may not be attractive enough to make it to print. Next, is to consider the prosecutor’s basis for the decision and his ability to achieve the intended outcomes. These elements will tell you more about why an outcome of a case turned out the way it did then just whether an offender was caned or not. It will also help you focus on the underlying issues and arrive at suggestions that have real potential for change.
Try applying this model to analyse any of the comparable cases where an adult took advantage of a vulnerable young person – even the case of Benjamin Sim, who was sentenced to a total of 20.5 years and 24 strokes of the cane. You will very easily be able to understand that the outcome of this case was no anomaly.
by Ganga Sudhan
* Article first appeared on The Online Citizen.