Rashomon strikes in the Court of Appeal

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I don’t comment on criminal cases often. Rapes get reported in the news regularly, so I do not have much to add. However PP v Wee Teong Boo struck a discordant nerve in me. Injustice senses tingling!

A summary of a difficult case

The Supreme Court does an excellent job of summarising the key points in the decision. However, for this post, I am still going to try to summarise it here.

A patient alleges that a doctor raped her in his clinic during a consultation. The doctor was a general practitioner. For most Singaporeans, a general practitioner is the first port of call when you fall sick. The case is difficult for a few reasons.

First, if it did happen, this would be very audacious and brazen. We are talking about a professional claiming that he was doing a medical procedure on a young woman, and then sticking his dick in her instead. As a community doctor, this would scare many women who would like to trust their doctors. (Although with scandals like doctors forming their own sex rings, anything is possible.)

Secondly, both parties are more than worthy of the court’s protection. The accused is a 65-year-old doctor. He would have been a general practitioner for a very long time, with reputation and standing in his community. On the other hand, we have a 23-year-old female university student. Public interest in protecting women have been very high here, and the court would be encouraged to be seen as protecting someone vulnerable.

Here comes the wedge. The victim alleges that she was raped by her doctor while he was holding his legs. She saw his penis partially inside her vagina. In response, our doctor claims he suffers from something common among men of his age — erectile dysfunction. Unlike others though, he has the medical evidence to prove it this time. Among the findings of the report, it stated that it would have been quite difficult for the doctor to penetrate a partner unaided.

What should the victim have done?

Singapore courts have come some distance dealing with the evidence of sexual assault victims. One of the most important areas of progress recognised that sexual assault victims might not act in a particular manner when faced with rape.

However, after affirming the lower court’s decision that the doctor’s erectile dysfunction created a reasonable doubt of the offence, the appeal court proceeded to perform a slam dunk on the victim’s testimony:

I am afraid that this does sound like the Court arguing in hindsight. An outlier?

A distinction without a difference

The court rationalises the distinction between holding that a sexual assault victim should have done with what happened here like this:

The question here is not so much one that concerns a victim’s reaction to a sexual assault after the trauma of the incident; rather, it is the credibility of a victim’s claim of what she thought was happening, while it was happening. Further, this was not in terms of fine details such as what the offender was wearing or what his position was, or how long the incident lasted, but at the most basic level, of whether a sexual assault was taking place at all. – Public Prosecutor v Wee Teong Boo and other appeal and another matter [2020] SGCA 56 at [58]

With respect, this distinction is really difficult to apply. What do we expect the victim to do? Is she supposed to realise at the point where a sexual assault is taking place to act like it? Or was the victim supposed to say at the trial that she genuinely believed that there was a sexual assault? All this demands that assault victims act in a particular way for the court to believe them.

Let’s take a step back. The court had medical evidence that the accused had erectile dysfunction. It said he couldn’t maintain an erection good enough to penetrate a virgin. That raises a reasonable doubt whether the accused could have raped the victim. Shouldn’t that be enough to acquit? Why did the court see the need to assess the victim’s testimony so harshly?

I’d wager that it was because the victim’s evidence was convincing. The court below found it clear and without embellishment. How could a convincing witness tell a story so different from what the evidence establishes?

Should we believe an “unusually convincing” witness if the facts go against her?

This brings us to Rashomon.

For readers who have no idea what one of the greatest movies in the history of the world is about, Rashomon revolves around a court hearing of a murdered samurai. We hear from the stories of the bandit accused of killing him, his mistress and even the dead samurai’s ghost. While their stories agree on critical aspects, there are particular details which are so different that they completely recast the story. Are these people telling the truth? They all looked convinced that they are.

Rashomon suggests that people can convincingly tell different versions of the same event because they are motivated by self-interest. However, people may also do so because they genuinely believed that it happened to them.

Does accepting that an unusually convincing witness can be wrong mean that men can be convicted of rape by good storytellers? It’s important to note that this isn’t the case because of the reasonable doubt created by the erectile dysfunction. I have my own ideas of what can be done, but I think it would be better for the courts and opposing lawyers to figure that out.

However, dismissing an “unusually convincing” witnesses’ testimony on such dubious grounds does a disservice to other victims by creating a vector through which lower courts can be persuaded to dismiss testimony. I am afraid this is clearly a step backwards.

This decision deserves to be nominated for an Alamak award.

#Singapore #Law

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Love.Law.Robots. – A blog by Ang Hou Fu