First, the high court judge below could not convict him of rape because the prosecution has not proven their case beyond a reasonable doubt. CA agrees with that.
Why? Because the medical evidence supported his claim that he had ED. And mind you, it was not based on what his wife said about his erection, that is, it was “soft as noodle”.
And ED leads to the next implausibility, that is, the way the rape was alleged to have been carried out. Wee’s hands were on her knees, they were supporting her legs. This is the victim’s testimony.
But, with ED, you need assistance to penetrate. You can’t go at it alone, when both hands are supporting her legs. Although the medical evidence is that you can still penetrate without aid of one’s hand, there will be “some difficulty”. Yet, it is “not totally impossible.” Here’s the context.
“You have to be a non-virginal person, then it might be possible, but if you have a virgin partner, a partner who is a virgin, with an unbroken hymen, it may have some great difficulty in penetrating.”
And FYI, the evidence is that the victim is a virgin, who was an unwilling partner. And that resistance further exacerbates the effort of a limp penis trying to make entry. This is thus a case where the actus reus “horse” precedes and supersedes the mens rea “carriage”.
The other point that casts reasonable doubt on the rape charge came from the evidence of the victim. The court finds it “incredible” that “when the victim sat up and allegedly saw Dr Wee’s penis still in her vagina”, she could initially still assert it was part of a medical examination.
CA said: “To put it bluntly, this would have been a violation of her person at the most horrific abusive level and we find it difficult to understand how (the victim) could have failed to appreciate that. 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.” It is thus a credibility issue, and it is one of the many strings in the Defence’s evidential bow.
A further point to note is that the victim had spent about 20 mins confessing to her mother almost immediately after the incident, but she never once mentioned that she was raped. All she had said was that “Dr Wee had poked something into her vagina.” The court finds that highly peculiar. Another evidential string?
The last point is an issue of audacity. The court noted that it is not plausible for the act of rape to be carried out “given that there were clinic assistants and other patients in the clinic.” Who in his right mind would rape in broad day light (so to speak) right?
So, when you put it altogether, you have the threshold that the criminal justice requires the prosecution to cross, that is, “proving a case beyond a reasonable doubt”. And it was not crossed in this case. Too many things just didn’t make sense.
The ED, the implausibility of hands-free penile penetration, the incredibility of the victim’s initial reaction, the 20 mins account to her mother without mentioning rape, and the unimaginable audacity it would take for the act to be committed in an open, public clinic, all adds up to tilt the balance in Wee’s favour for an acquittal of rape.
At this juncture, I just want to say that that’s how the criminal justice works when it comes to satisfying the standard of proof. In a case of “he says, she says”, you have to set the standard for the one who brings the charge, and then, keep the standard for the one who has to defend it.
Beyond a reasonable doubt is a safe and fair standard because of the gravity of the punishment and how some allegations of sexual violation may be susceptible to abuse with dire consequences to the innocent. It therefore cannot be an emotional conviction, but one strictly on a balancing-of-facts-and-interest conviction.
And in Wee’s case, he was acquitted because the evidence just doesn’t cross that threshold (and whether we accept that rationalising process or not does not change the way the rules are applied).
How about digital penetration then? If it is not his flaccid penis, how about his resolute finger?
Well, this is more complicated and controversial, because of what was said about it from the horses’ mouth.
Wee did admit that he had penetrated the victim with his finger. If that is the case, shouldn’t the actus reus horse be deemed as a home run here? Shouldn’t it be a cut and dry case? Shouldn’t Wee be charged with outrage of modesty and serve the 10 years then?
Well, here comes criminal justice to the foreground. This time, it didn’t go that far as to proving the case beyond reasonable doubt. In fact, neither parties (DPP and Wee) needed to go there because of the issue of “prejudice”. Let me flesh it out.
First, digital penetration was never the prosecution’s case. The victim’s evidence is strictly on rape, that is, penile-vagina penetration. All evidence was thus about rape. In fact, the victim specifically denied any digital penetration.
Yes, I know, Wee admitted to finger insertion. But that was and has always been in the context of a medical/pelvic examination, not outrage of modesty.
Had the case been about digital penetration, the Defence asserts that they would have conducted their case differently, that is, they would have called other witnesses, or recall them to give their opinion about the appropriateness of the medical examination.
And yes, again I heard you the first time - didn’t he admit to inserting his finger, ungloved even, and what’s more, for lubricant, he used his saliva? Isn’t that sick on so many levels?
Well, on this point, the CA felt that because the prosecution had conducted their case strictly on the rape charge, the Defence was therefore not given the full opportunity to explain that the finger insertion was in the name of medical/pelvic examination. And second, you can’t convict a person based on actus reus alone. You have got to convict on the mens rea too, that is, his intention at that time of the offence. That was also not fleshed out fully at the trial.
So, Wee may have admitted to ungloved insertion with saliva, which, in my view, ought to be a professional/ethical violation, but to say it was outrage of modesty is quite an evidential quantum leap, if not a discretionary act of overreaching.
And if you want to look at it another way, the question is, did he violate the victim with digital penetration or did he violate the code of practice in carrying out a medical/pelvic examination? The CA however didn’t even need to consider the former, by virtue of prejudice, which as a result, had left the evidence unchallenged, the standard of proof hanging, and the conclusion unascertainable (unless the CA directs that a fresh trial on that charge be heard in the lower court).
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As for the latter, ethical violation, the SMC will just have to deal with it in due course. SMC said: “As deliberations are under way on whether disciplinary proceedings are to be brought against Dr Wee, the SMC seeks the public’s understanding that it is not able to comment at this juncture so as to avoid prejudicing any such proceedings.”
Currently, Wee is not practising medicine. He has not renewed his license after the suspension was lifted recently.
So friends, after all’s said and done, this is how the criminal justice work in general. It is not perfect. Its source/creator is not perfect. At times, the guilty do get away, and the innocent convicted. Some serve longer prison time than it is fair, and some get away with shorter sentences.
But, at the end of the day, rules are rules, and securing a conviction or an acquittal has its own rules. These rules are there to safeguard all, regardless, and if you do not meet them, that is, the standard of proof, or if it is an issue of prejudice, then the court must do what is fair by adhering to the rules, and not be swayed by emotions.
And if you do not know by now, there is a difference between the court of public opinion and the court of law and justice. One examines a case from a distance, from what was reported, and the other scrutinises it in detail, leaving no evidential stones unturned.
One is moved more by emotions than the other. One is based largely on the rule of thumb and the other, well, rule of law. One is essentially intuitive, by way of feeling and guessing, and the other works by deductive and inductive reasonings.
And lastly, one can be easily influenced by populist sentiments, while the other is focused on interpreting and applying the law to a case, and deciding strictly on that basis, regardless of whether that decision eventually turns out to be popular or not.
Have a good Sunday. Cheerz
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