Sex acts 'consensual', says lawyer of ex-Grab driver on trial for attempted rape of passenger
SINGAPORE: A lawyer representing a former Grab driver on trial for attempted rape of an intoxicated 19-year-old passenger argued on Monday (Mar 15) that the sex acts were "consensual" and that his client had stopped once the woman said "no".
Lawyer Chenthil Kumarasingam argued that the defence had no case to answer after the prosecution concluded its case, and the High Court judge adjourned his decision to a later date after hearing arguments from both sides.
Tan Yew Sin, 46, is contesting charges of attempted rape, sexual assault and outrage of modesty against a woman in his vehicle in the early hours of May 19, 2018, after picking her up from Wildseed Bar.
Both sides made arguments at length on whether the woman could have consented to the sex acts. According to the Penal Code, it is not considered consent if it is given by a person who is so intoxicated that they are unable to understand the nature and consequence of what they are consenting to.
Tan's lawyer pointed to testimonies of the woman's friends, who said that she was not "fall-down drunk" and thought she could take care of herself when they helped her into Tan's car.
He argued that the victim "participated" in fellating Tan, and said moaning was heard in clips from Tan's in-car camera footage.
However, Deputy Public Prosecutor M Kayal Pillay said moaning was in response to physical stimulation and is to be contrasted against the response of a person consensually participating.
She added that the woman "was unaware of the mechanics" of fellating Tan, and a doctor had testified for the prosecution that if a person truly did not know the mechanics of any particular act, they would not "gain these abilities in a state of intoxication".
LAWYER CLAIMS SHE KNEW WHAT SHE WAS DOING
Mr Kumarasingam of Withers KhattarWong argued that even though the woman had no recollection of what happened the next day, she "knew what she was doing".
"I made the point that there is a particular point in the first group of (in-car) recordings where it does appear there was a very positive outcome, and subsequently they moved the car, and she said - well, I don't want any more contact," he said.
"This is clearly indicative, barring her lack of memory, of somebody who had the capacity to say yes or no. And she may not have said yes in so many words, but she was reactive that way, and she was clear when she wanted to say no."
He said the woman's blood alcohol statistics were "somewhat inaccurate and arbitrary", adding that the recordings were "more accurate and reliable".
Tan had picked the woman up at about 2.30am and driven her to her home, where she could not access the side gate, squatted down and began crying. Tan then took her back to his car, where she banged her head on the window and cried.
READ: Grab driver attempted rape trial: Victim 'insisted' she did not want me to send her home, says friend who booked the ride
He went to the back seat to console her, and this was when he allegedly committed the first set of sexual offences against her - kissing her before attempting to rape her.
After this, Tan drove to a more secluded area where he is accused of molesting and sexually assaulting the woman.
Pointing to the recordings, Mr Kumarasingam said the woman had "a coherent conversation" with Tan when she first got out of the car, apologising as she felt she had inconvenienced him by not getting out of the vehicle quickly enough.
In her evidence, she said she squatted down some distance away from the gate to look for an access card in her bag, as there usually was a cat at the top that would jump down, so she squatted some distance away to avoid it.
Mr Kumarasingam claimed this meant that her judgment "was not severely impaired".
THE SECOND GROUP OF SEX ACTS AND THE WOMAN'S "NO"
After Tan helped the woman back to his car and carried out the "sexual activities" against her, he drove to a further area.
"We come to the second group of sexual activity," said Mr Kumarasingam. "The crux of this point is very simple - after the car had been moved and stopped across from the condo, my client moved to the back seat and sought to initiate sexual contact with her again."
"There was some contact, and she appears to say 'no', and the moment she says 'no', my client stopped and moved to the front of the car, I think that was borne out by the various sounds of the car door opening and closing."
He added that this shows the woman "was able to refuse consent", and his client "honoured" this. He drove the woman back to the condominium and dropped her off shortly past 4am. She was found by another Grab driver at about 4.40am lying in the middle of the road with her underwear and shorts missing.
NO CAPACITY TO CONSENT: PROSECUTOR
In response, prosecutor Ms Pillay said there is some evidence that the woman did not even possess the capacity to consent in the first place.
She said both sides agreed that the woman was intoxicated, but the issue was how intoxicated she was. The prosecution argued there was some objective and corroborative evidence that the woman was highly intoxicated at the time, citing their expert's opinion that her judgment was severely impaired.
Ms Pillay added that there was no express consent captured in the in-car clips, and this adheres with the statement Tan gave to the police that he had not asked her for consent, and neither did she give express consent.
As for the argument of "some kind of implied consent" by virtue of the woman's purported "participation", Ms Pillay said this notion of participation is not borne out, but said there was some evidence that she did not give consent.
Mr Kumarasingam gave an analogy of a bowl of chillis. He said if he drank alcohol, the effect of disinhibition by the alcohol might lead him to try the chillis, which he would not if he had not been drinking. However, in both situations, he said he was aware of the nature and consequences of his act.
"When she wanted to, she could say no. The prosecution hasn't dealt with that ... it shows she had the capacity to give or refuse consent," he said.
The prosecutors maintained that all the sexual activities that had occurred before the woman uttered the word "no" was without consent.
Justice Pang Khang Chau adjourned his decision to a later date. If he accepts the defence's arguments, he can dismiss the case on the ground that there is no case to answer, or he may alter the charge or frame a new charge before calling on the accused to give his defence.
If he dismisses the defence's arguments, he will call on the accused to decide whether he wants to take the stand to testify.
If convicted of attempted rape or sexual assault by penetration, Tan could be jailed for up to 20 years, fined, or caned.
If found guilty of outrage of modesty, he could be jailed for up to two years, fined, caned, or given any combination of these punishments.