The Attorney General’s Chambers (AGC) has explained the reasons behind its decision not to appeal the sentence for Joshua Robinson, the 39-year old American found guilty of having sex with two minors.
The mixed martial arts instructor was sentenced to 4 years jail for 9 counts of offences, including showing an obscene video to a 6-year old girl, and for possession of obscene films.
20 other charges were taken into consideration in sentencing.
The AGC’s explanation, issued through a press release, generated further outrage among some members of the public, who questioned if the AGC could have done things differently so that Robinson would receive a heavier sentence.
Some of these questions are worth considering, while others are borne out of misunderstanding of the law, rather than any malice.
Could the AGC really have done things differently and obtained a heavier sentence for Robinson, given the facts before it?
We will deal with the issues as best we could, based on research and consultation with lawyers. However, we allow that we may be wrong and welcome any corrections. And certainly, we do not speak on behalf of the AGC.
At the heart of the case are two considerations:
- The consent of the girls to sex with Robinson.
- The ages of the girls (2 of them were 15-year old, while the third was 6-years old).
Robinson was charged, among others, under section 376A(2) of the Penal Code, for the crime of “sexual penetration of minor under 16.” Anyone who is found guilty under this provision “shall be punished with imprisonment for a term which may extend to 10 years, or with fine, or with both.”
It does not provide for caning.
However, some have questioned why the AGC did not charge Robinson for rape instead, under section 375.
First, the sex act was done with consent from the girls, the AGC says. Thus, rape is discounted as rape is sexual assault carried out forcefully without the victims’ consent, obviously.
This is why Robinson was not charged under section 375, for rape.
And even if it was rape, it would be termed “sexual penetration of a minor under 16” because the two victims were 15-years old at the time.
The Singapore Criminal Lawyer blogsite explains what rape is and is not:
“The age of consent is 16. However, according to Section 376A, if the minor is between 14 and 16 years of age, and ‘any person who penetrates with their penis, the vagina, anus or mouth’ with or without the minor’s consent the offence will not be labelled rape but the ‘sexual penetration of a minor under 16’.”
The age of the victim is determinant of what charge is brought against the perpetrator.
If the two girls were below 14-years old, Robinson could be charged with statutory rape, which is provided for under section 375.
Rape carries a jail term of up to 20 years, and up to 20 strokes of the cane, a heavier sentence than that under section 376A.
What about a Channelnews Asia report which said that the second girl “had a mental breakdown and cried… and went to the police”? Does this not show she was raped, or that she did not give consent?
The report does not provide a more detailed context of how the “mental breakdown” happened, or if it happened at all. It is unclear what the source of the report is.
A mental breakdown days after such an incident is not uncommon, and indeed could point to non-consent. However, it is also important to keep in mind that the breakdown could also be due to other factors prevailing at the time the “mental breakdown” took place.
Without any further facts of the context of the “mental breakdown” by the second victim, there is no way to ascertain if there was indeed non-consent.
In brief, the girls were considered by the AGC to have given consent to the sexual acts, and hence Robinson could not be charged for rape or sexual assault.
It is also worth noting that the first girl, who had had sex with Robinson in 2013, did not make any police report about the encounter. Her case came to light only when police raided Robinson’s apartment following the police report made by the second victim in 2015, and discovered some videos in which Robinson had filmed the sexual encounter.
The first victim had also had sex with Robinson on several other occasions. Consent on the part of the victim would thus be a hard thing to disprove, presumably.
Rape has to be proved through a medical report whereby the victim would have gone through a medical examination following the sexual encounter. This does not seem to have been the case for the two victims. Thus, lack of evidence may have been a consideration for the Prosecution.
Also, the 6-year old girl may also be asked to testify, and this could be a devastating experience for her and her family.
One suspects that in light of these circumstances, the AGC decided to do the next best thing, so to speak, and charge Robinson for “sexual penetration of a minor under 16” where consent is not a requirement.
In the event, Robinson, who was charged for 3 counts under this provision, was sentenced to 2 years jail for each count, which would run concurrently.
The maximum Robinson could have been given was 10 years’ jail.
Why such a short jail time for someone who victimised two girls who were minors? Why did the judge not sentence him to a longer imprisonment of say, 8 years on each charge?
The answer lies in the plea bargain the AGC had negotiated with Robinson.
The prosecution, as the AGC says in its press release, “had sought a total sentence of 4 to 5 years’ imprisonment” for Robinson.
“The Prosecution’s sentencing position was conveyed to Robinson before he made his decision in December 2016 to plead guilty,” the AGC said.
In short, the prosecution apparently offered Robinson a plea bargain.
The AGC explained why it chose to do this:
“In arriving at this sentencing position, the Prosecution took into account, among other things, the fact that by securing a guilty plea, the three young victims would be spared the trauma of having to testify and be cross-examined in a trial.”
Was the Prosecution right in negotiating a guilty plea with Robinson? Is this unusual? And was the “4 to 5 years’ imprisonment” offered by the Prosecution too lenient or short?
To answer these questions, we have to keep in mind that victims of sex crimes, especially young victims, go through what can only be described as a mentally and psychologically traumatic period, days, months and even years after the incident itself.
The victims may also be required to testify in court, and be cross-examined by the defence counsel in open court, which would force the victims to re-live each moment of the harrowing experience.
This is why it is not an uncommon thing for the prosecution to seek to avoid such a scenario as much as possible in sex crimes cases, so as not to further add to the psychological upheaval the victims are already going through.
A plea bargain, at times a very distasteful thing for the Prosecution to do (who would want to negotiate with a pedophile, for example?), is sometimes the better thing to do, for the sake of the victims and their families.
If the AGC had gone with rape, and lost the case because of a lack of evidence or unconvincing evidence, Robinson would have been acquitted altogether.
Plea bargains must be accepted by BOTH sides
Some have asked: what if the victim wants to testify? Well, then it is up to the Prosecution to weigh all facts of his case and decide whether to proceed in such a way.
But it is important to know this: a plea bargain is only valid when BOTH parties agree to the terms or conditions.
A plea bargain does not work if either party rejects the terms.
The Prosecution must discuss the terms with the victims and receive their approval before they are offered to the accused’s lawyers. The Prosecution cannot unilaterally or voluntarily, without the victim’s knowledge or assent, make the offer to the accused.
And a plea bargain, when accepted by both sides, must be presented to a judge who will order the agreement to be so.
In this case, the Prosecution had presented the terms to the District Judge, as stated in the AGC’s press release.
So, the fact that a plea bargain was struck with Robinson means that the victims had also accepted the terms.
Why no appeal by the Prosecution?
This leads us to the last question: Why has the Prosecution decided not to appeal the sentence given to Robinson?
Law Minister K Shanmugam provided the answer when he spoke on the matter after the AGC had released its press release.
“I can understand that having taken a position in court, on what the sentence should be, it is difficult for AGC to now appeal,” Mr Shanmugam said, obviously referring to the plea bargain.
The 4 years’ jail term was what the AGC had offered to Robinson. It would be strange for the Prosecution to now appeal this sentence. The court would most probably throw any appeal out, and may even censure the AGC.
Public outcry important
Unless you think that because of all the above, the public outrage at the sentence is rendered useless, the contrary is true.
In fact, it is because of the public uproar that attention was brought to the case and the inadequate sentence meted out to Robinson. And because of this, the Law Minister has now asked his two ministries – Law and Home Affairs – to relook the sentences which could be applied to such crimes.
“I do think that the sentences for such offences committed by Robinson need to be relooked at,” Mr Shanmugam had said.
So, while the punishment for Robinson may not have met our expectations, we can perhaps take comfort that the public’s voice and that of the parents of the 6-year old girl (the father had expressed his disgust at the sentence) have been heard by the authorities.
But it is also only fair to say that the Prosecution (AGC) did the right thing in this case, “right” as in the best it could, given the facts of the case, to get the maximum sentence for the crimes.
We look forward to stiffer punishments for sexual predators like Joshua Robinson. Indeed, they should not get away with just a slap on the wrist.