Saturday, November 28, 2009

Docs in a tight spot when dealing with underage sex cases

Nov 28, 2009

I REFER to Monday's letter by Mr Chan Wing Cheong, 'Consensual underage sex: Review two law issues'.

I share Mr Chan's observation that the duty to make a police report when one becomes aware of underage sex should be clarified by the legislature.

Section 22(1)(a) of the Criminal Procedure Code (CPC) currently requires anyone who is aware of certain Penal Code offences to report the matter to the police, unless the person can prove 'reasonable excuse' for not reporting.

All sexual offences under Chapter XVI of the Penal Code are reportable. This includes sexual penetration of a minor under 16 years old with or without the minor's consent under Section 376A of the Penal Code.

Before Section 376A of the Penal Code was enacted last year, consensual underage sex used to be prosecuted as carnal connection with a girl below 16 years old under Section 140(1)(i) of the Women's Charter.

Section 140(1)(i) of the Women's Charter, with a shorter maximum jail term, is probably retained along with Section 376A of the Penal Code so as to give state prosecutors the discretion to invoke it in deserving cases such as those involving consenting teens. As Section 22(1)(a) of the CPC does not cover offences under the Women's Charter, there is no reporting obligation under the CPC for section 140(1)(i).

However, the fact that both the Penal Code and Women's Charter provisions cover consensual sexual intercourse can create practical difficulty for professionals like doctors. Suppose a 15-year-old girl confides in a general practitioner that she had sex with her 15-year-old boyfriend. Is the doctor obliged to report the matter as an offence under Section 376A of the Penal Code? Or can the doctor regard the matter as an offence under Section 140(1)(i) of the Women's Charter for which no reporting obligation arises under the CPC?

If cases of consensual underage sex should all be reportable as offences under Section 376A of the Penal Code, a further question is whether medical confidentiality may operate as a 'reasonable excuse' for doctors not to report such matters. As Mr Chan rightly pointed out, the meaning and scope of the 'reasonable excuse' exception has not been tested in the courts.

Paragraph of the Singapore Medical Council Ethical Code and Ethical Guidelines provides that medical confidentiality is a general but non-absolute rule which may be overridden by legislation, court orders or when the public interest demands disclosure of such information. But is there public interest in reporting consensual underage sex to the police such as to override medical confidentiality?

Until these issues are clarified by legislation or case law, doctors have to continue to steer between the Scylla of breaching medical confidentiality and the Charybdis of not reporting what is potentially a reportable offence. The Scylla may result in a patient complaint leading to disciplinary proceedings, while the Charybdis may lead to criminal prosecution for contravening Section 22(1)(a) of the CPC. I hope the law in this regard can be clarified soon.

Eric Tin

[This is a valid question. Doctor-patient confidentiality could possibly be invoked as a reasonable excuse for the doctor not to report consensual underage sex. The primary role of the doctor is to serve the healthcare and medical care needs of the patients. Enforcement of the law is not his primary duty. If Doctors are required by law to report such offences, then sexually active minors with related health issues would avoid going to doctors and this would be eventually more detrimental to their well-being. ]

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